A quick one from the Georgia Court of Appeals. In Fincher Road Investments, LLLP v. City of Canton, No. A15A1290 (Nov. 13, 2015), the court held that a condemnee was entitled to recover attorneys' fees and costs when the condemnor abandoned a taking, and was entitled to recover just compensation for the temporary cloud which the condemnation placed on the property.
This started as a quick-take, and the City deposited $787,400 with the court, after which the court declared that the City had title. The owner objected to the taking itself, and to the amount of compensation. After the court denied the owner's petition to set aside the taking, the owner appealed. The court of appeals held the trial court should have considered certain facts about the timing of notice of the condemnation. When the case was remanded, the City told the trial court it no longer wanted the property because "it had determined condemnation of the property was 'no longer necessary for public use.'" Slip op. at 3. It dismissed the condemnation action.
The City agreed with the owner that under a Georgia statute, the City was liable for attorneys' fees and costs because the City had abandoned the condemnation. So far so good. The owner, however, claimed that it was also entitled to just compensation for a temporary taking, for the time between the quick-take and the City's dismissal. The City disagreed, arguing that the statutory remedy of attorneys' fees and costs was the owner's sole remedy. The trial court agreed, and back they went to the Court of Appeals.
The court's analysis starts with a good reminder that private property is "'the most basic of human rights, and it is the 'charge of the courts to defend them vigorously.'" Slip op. at 4-5 (footnotes omitted). The court noted that Georgia's quick-take procedure means that fee simple title passed to the City upon the deposit (a process which we detailed in a recent brief), which means that the City temporarily took the property, even though it abandoned the permanent take.
The court disagreed that it would be a "windfall" and double recovery if the owner is provided with both fees and costs, as well as just compensation, the former being a statutory requirement, and the latter a constitutional command:
Here, while the City’s abandonment of its action undoubtedly entitled Fincher Road to damages under OCGA § 22-1-12, the City’s abandonment and obligation to pay those statutory damages in no way relieved it of “the duty to provide compensation for the period during which the taking was effective.”
Slip op. at 12 (footnote omitted).
Seems about right to us.
Fincher Road Investments, LLLP v. City of Canton, No. A15A1290 (Ga. App. Nov. 13, 2015)
