Summerour v. City of Marietta

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
July 8, 2016
In the Court of Appeals of Georgia
A16A0640. SUMMEROUR v. CITY OF MARIETTA.
DILLARD, Judge.
The City of Marietta filed a condemnation petition to acquire property owned
by Ray Summerour. Following a hearing, the court-appointed special master
condemned the property and awarded Summerour $225,000, and, upon review, the
trial court affirmed the special master’s award. On appeal, Summerour contends that
the trial court erred in failing to dismiss the petition, arguing that the City neglected
to provide a summary of the basis for its just-compensation offer in violation of
OCGA § 22-1-9 (3), and that the City violated OCGA § 22-1-9 (7) by negotiating
with him in bad faith. Additionally, Summerour contends that the trial court erred in
failing, at the very least, to recommit the case to the special master to complete the
record. For the reasons set forth infra, we vacate the trial court’s order and remand
the case for further proceedings consistent with this opinion.
The record shows that in late 2009, the voters of the City of Marietta approved
a referendum for a $25,000,000 parks bond, which included $3,750,000 for the
expansion of the Elizabeth Porter Recreation Center. At the time of the referendum,
Summerour owned property, which included a small grocery store, adjacent to the
eastern border of the recreation center, and the City identified his property as one of
nine properties that it needed to acquire for the expansion. Toward that end, on June
10, 2010, the City contacted Summerour, via letter, and informed him of its interest
in purchasing his property, that it had hired an appraiser to determine the value of his
property, and that it would make an offer to purchase the property based on that
value.
Shortly thereafter, on June 23, 2010, the City again contacted Summerour, via
letter, informing him that the appraiser had valued his property at $85,000, and
offering to purchase the property at that price. Summerour did not respond, and on
October 6, 2010, the City sent him another letter proposing the same offer. Yet again,
Summerour did not respond.
2
For reasons not entirely clear from the record, the City did not correspond
further with Summerour until May 23, 2013, when it once again sent him a letter
expressing its interest in purchasing his property. This correspondence was followed
by yet another letter sent on July 26, 2013, in which the City informed Summerour
that his property had a current appraised value of $95,000 and that the small grocery
store on the property had an appraised value of $46,700. Consequently, the City
offered to purchase the property for $141,700.
In response to this latest offer, on August 13, 2013, Summerour sent the City
a letter indicating that its offer was lower than he expected and requesting a summary
of the appraisal. Summerour added that he would be hiring his own appraiser and that
he had learned during his attendance of City Council meetings that the City was
considering acquiring his property by way of eminent domain. The City initially did
not formally respond to Summerour’s correspondence, and thus, on December 4,
2013, Summerour sent the City another letter, in which he offered to sell his property
for $375,000. The City responded, via letter, on December 10, 2013, and increased
its offer to $152,000 but further indicated that unless Summerour provided his own
certified appraisal, the current offer would likely be its highest. Two days later, the
3
City repeated the $152,000 offer, also via letter, and added a request that Summerour
respond by December 18, 2013.
On December 17, 2013, Summerour hand delivered a letter to the City, in
which he rejected the City’s offer but requested that the parties meet in order to
discuss the differences in their respective appraisals. Over the course of the next
several months, Summerour hired legal counsel and an appraiser and requested that
the City postpone any formal action with respect to the property until his appraiser
determined its value. The City complied, and informal discussions, mostly via emails,
between the parties continued. However, during these discussions, the City stressed
that it did not believe that formal settlement meetings would be productive unless
Summerour first provided the appraisal value of the property from his licensed
appraiser.
Expressing his client’s frustration with the state of the negotiations, on May 8,
2014, Summerour’s counsel complained, via letter, that the City had never provided
copies of its appraisals or a summary of same as required by OCGA § 22-1-9 (3). And
in that same letter, Summerour’s counsel requested such information while also
noting that Summerour hiring his own appraiser was not a prerequisite for
negotiations under the statute. Then, shortly after this correspondence, the City
4
delivered a summary of its appraiser’s report to Summerour, and the parties met for
additional negotiations. Following this meeting, on May16, 2014, the City sent a
letter to Summerour, in which it provided a full appraisal report dated July 17, 2013,
and offered to purchase his property for $139,400. Over the course of the next few
months, the parties continued negotiations but failed to reach an agreement.
Consequently, on June 13, 2014, the City informed Summerour, via letter, that it was
moving forward to acquire his property through condemnation.
On October 2, 2014, the City filed a condemnation petition to acquire
Summerour’s property in the Superior Court of Cobb County. Thereafter, Summerour
filed an answer, and the trial court appointed a special master to conduct an
evidentiary hearing on the matter. During that three-day hearing, both parties
presented evidence regarding their respective valuations of the subject property, and
Summerour also argued that the petition should be dismissed in light of the City’s
alleged failure to comply with OCGA § 22-1-9. On January 20, 2015, less than one
week after the conclusion of the hearing, the special master issued a return finding
that the City had complied with its statutory obligations and setting the fair market
value of Summerour’s property at $225,000.
5
Both parties filed appeals and special exceptions to the special master’s return
with the trial court. Subsequently, the trial court held its own hearing on the matter
and ultimately entered an order adopting the special master’s return in its entirety and
denying both parties’ special exceptions. Summerour then obtained a certificate of
immediate review from the trial court and filed an application for interlocutory appeal
with this Court, which we granted. This appeal follows.
Our analysis necessarily begins with the Takings Clause of the Fifth
Amendment to the United States Constitution, which provides that private property
shall not “be taken for public use, without just compensation.”1 Suffice it to say,
1
U.S. CONST. amend. V; see also GA. CONST. Art. 1, Sec. 3, Para. I (a)
(“Except as otherwise provided in this Paragraph, private property shall not be taken
or damaged for public purposes without just and adequate compensation being first
paid.”); OCGA 22-1-5 (“Except in cases of extreme necessity and great urgency, the
right of eminent domain cannot be exercised without first providing for just
compensation to the owner for the interference with this exclusive rights.”); OCGA
§ 22-1-6 (“If a person who is authorized to exercise the power of eminent domain
cannot by contract procure the property . . . or other interest sought to be condemned,
the person may take or damage the property or interest upon paying or tendering to
the owner thereof just and adequate compensation.”); Horne v. Dep’t of Agric., ___
U.S. ___, ___ (II) (A) (1) (135 SCt 2419, 192 LE2d 388) (2015) (“The principle
reflected in the [Takings] Clause goes back at least 800 years to the Magna Carta . .
. .”); Letter from William Pierce to St. George Tucker (Sept. 28, 1787), GAZETTE OF
THE STATE OF GA., Mar. 20, 1788, excerpted in THURSTON GREENE, THE LANGUAGE
OF THE CONSTITUTION 614 (1991) (“I conceive civil liberty is sufficiently guarded
when personal security, personal liberty, and private property, are made the peculiar
care of government.”).
6
private property rights are among “the most basic of human rights,”2 and it is the
“charge of the courts to defend them vigilantly.”3 A classic taking is, of course, one
in which “the government directly appropriates private property for its own use.”4 In
this respect, the Supreme Court of the United States has explained that the Takings
Clause is designed “not to limit the governmental interference with property rights
per se, but rather to secure compensation in the event of otherwise proper interference
amounting to a taking.”5 Thus, governmental action that works a taking of property
2
William K. Lane III, “Your Raisins or Your Life”: The Harrowing of the
Takings Clause in Horne v. U.S. Department of Agriculture, 750 F3d 1128 (9th Cir.
2014), 38 HARV. J. LAW & PUB.POL’Y 761, 761 (2015) (quoting MILTON FRIEDMAN
& ROSE D. FRIEDMAN, TWO LUCKY PEOPLE: MEMOIRS 605 (1998))
3
Lane, supra note 5, at 761; see also JOHN LOCKE, The Second Treatise, TWO
TREATISES OF GOVERNMENT § 124 (Peter Laslett ed., Cambridge Univ. Press 1960)
(1698) (“The great and chief end, therefore, of Mens uniting into Commonwealths,
and putting themselves under Government, is the Preservation of their Property.”);
OCGA § 22-1-3 (“It is the province of the General Assembly to determine when the
right of eminent domain may be exercised. If, however, under pretext of such
necessity the General Assembly should pass a law authorizing the taking of property
for private use rather than for public use, the courts should declare the law
inoperative.”).
4
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.
302, 324 (IV) (122 SCt 1465, 152 LE2d 517) (2002) (quoting E. Enters. v. Apfel, 524
U.S. 498, 522 (IV) (A) (118 SCt 2131, 141 LE2d 451) (1998)).
5
First English Evangelical Lutheran Church of Glendale v. Cty. of Los
Angeles, 482 U.S. 304, 315 (II) (107 SCt 2378, 96 LE2d 250) (1987); see also
7
“necessarily implicates the ‘constitutional obligation to pay just compensation.’”6
And in reviewing a judgment from a condemnation proceeding, Georgia’s appellate
courts have “applied an ‘any evidence’ standard of review to affirm the factual
findings of the trial court.”7 But the standard of review for “a question of law on
appeal is de novo.”8 Thus, when such a question is at issue, “we owe no deference to
the trial court’s ruling and apply the ‘plain legal error’ standard of review.”9 With
Armstrong v. United States, 364 U.S. 40, 49 (III) (80 SCt 1563, 4 LE2d 1554) (1960)
(“The Fifth Amendment’s guarantee that private property shall not be taken without
just compensation was designed to bar Government from forcing some people alone
to bear public burdens which, in all fairness and justice, should be borne by the public
as a whole.”); Mayor & City Council of Baltimore City v. Valsamaki, 916 A2d 324,
335 (II) (Md. 2007) (“The right to private property, and the protection of that right,
is a bedrock principle of our constitutional republic.”).
6
First English Evangelical Lutheran Church of Glendale, 482 U.S. at 315 (II);
see also Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (43 SCt 158, 67 LEd 322) (1922)
(“The general rule at least is that while property may be regulated to a certain extent,
if regulation goes too far it will be recognized as a taking.”).
7
Concept Capital Corp. v. DeKalb Cty., 255 Ga. 452, 452 (1) (339 SE2d 583)
(1986); accord City of Atlanta v. Heirs of Champion, 244 Ga. 620, 622 (261 SE2d
343) (1979).
8
Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305)
(2011) (punctuation omitted).
9
Id. (punctuation omitted).
8
these guiding principles in mind, we turn now to Summerour’s specific claims of
error.
1. Summerour contends that the trial court erred in declining to dismiss the
City’s petition on the ground that the City failed to provide a summary of the basis
for its just-compensation offer in violation of OCGA § 22-1-9 (3). We agree that,
initially, the City failed to comply with the statute, and given this initial failure, we
vacate the trial court’s ruling and remand the case for further proceedings consistent
with this opinion.
Tasked with interpreting statutory language, we necessarily begin our analysis
with “familiar and binding canons of construction.”10 Indeed, in considering the
meaning of a statute, our charge as an appellate court is to “presume that the General
Assembly meant what it said and said what it meant.”11 And toward that end, we must
afford the statutory text its plain and ordinary meaning,12 consider the text
10
Holcomb v. Long, 329 Ga. App. 515, 517 (1) (765 SE2d 687) (2014); accord
In re L. T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014).
11
Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013)
(punctuation omitted); accord Holcomb, 329 Ga. App. at 517 (1); Martinez v. State,
325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).
12
See Holcomb, 329 Ga. App. at 517 (1); accord Deal, 294 Ga. at 172 (1) (a);
see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (775 SE2d 527)
9
contextually,13 read the text “in its most natural and reasonable way, as an ordinary
speaker of the English language would,”14 and seek to “avoid a construction that
makes some language mere surplusage.”15 In summary, when the language of a statute
(2015) (“A statute draws it meaning, of course, from its text.”) (punctuation and
citation omitted); Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015) (same);
State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged
with interpreting the law in accordance with the original and/or plain meaning of the
text at issue (and all that the text fairly implies) . . . .”); Singletary v. State, 310 Ga.
App. 570, 572 (713 SE2d 698) (2011) (“In construing these statutes, we apply the
fundamental rules of statutory construction that require us to construe the statutes
according to their terms, [and] to give words their plain and ordinary meaning . . . .”
(punctuation omitted)).
13
See Arizona v. Inter Tribal Council of Arizona, Inc., ___U.S. ___ (II) (B)
(133 SCt 2247, 186 LE2d 239) (2013) (Scalia, J.) (“Words that can have more than
one meaning are given content, however, by their surroundings.” (punctuation and
citation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in
the context in which it appears[.]”); accord Hendry v. Hendry, 292 Ga. 1, 3 (1) (734
SE2d 46) (2012); Holcomb, 329 Ga. App. at 517 (1); see also Tibbles, 297 Ga. at 558
(“The common and customary usages of the words are important, but so is their
context.”) (punctuation and citation omitted); Chan, 296 Ga. at 839 (1) (same).
14
Deal, 294 Ga. at 172-73 (1) (a); accord Holcomb v. Long, 329 Ga. App. 515,
518 (1) (765 SE2d 687) (2014).
15
In the Interest of L.T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014)
(punctuation omitted); accord Deal, 294 Ga. at 172-73 (1) (a); Holcomb, 329 Ga.
App. at 518.
10
is “plain and susceptible of only one natural and reasonable construction, courts must
construe the statute accordingly.”16
Here, OCGA § 22-1-9, entitled “Policies and practices governing
condemnations,” provides that
[i]n order to encourage and expedite the acquisition of real property by
agreements with owners, to avoid litigation and relieve congestion in the
courts, to assure consistent treatment for property owners, and to
promote public confidence in land acquisition practices, all
condemnations and potential condemnations shall, to the greatest extent
practicable, be guided by the following policies and practices . . . .17
And in providing the details for one such policy and practice, OCGA § 22-1-9 (3)
directs that
[b]efore the initiation of negotiations for fee simple interest for real
property, the condemning authority shall establish an amount which it
16
Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Luangkhot
v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013); see also Deal, 294 Ga. at 173(1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its
plain meaning, and our search for statutory meaning is at an end.” (punctuation
omitted)).
17
See Holcomb, 329 Ga. App. at 518 n. 15 (1) (explaining that “[a]s part of an
act passed by the General Assembly and approved by the governor, the [codified]
premable of a statute may properly be considered by our courts to the extent that it
sheds light on the meaning of substantive terms contained in the statute.”).
11
believes to be just compensation and shall make a prompt offer to
acquire the property for the full amount so established. In no event shall
such amount be less than the condemning authority’s independent
appraisal of the fair market value of such property. The condemning
authority shall provide the owner of real property to be acquired with a
written statement of, and summary of the basis for, the amount it
established as just compensation. Where appropriate, the just
compensation for the real property acquired and for damages to
remaining real property shall be separately stated. The condemning
authority shall consider alternative sites suggested by the owner of the
property as of the compensation offered . . . .18
Summerour argues that “before the initiation of negotiations” the City failed
to provide him with a summary of the basis for the amount it established as just
compensation for his property. Turning to the plain text of the statute, “summary” is
not defined; but the term is most commonly understood as “of a statement or account
. . . containing or comprising the chief points or the sum and substance of a matter”19
and “characterized by or involving conciseness or brevity.”20 Here, as previously
noted, in June of 2010, after earlier informing Summerour of its interest in purchasing
18
OCGA § 22-1-9 (3).
19
THE COMPACT OXFORD ENGLISH DICTIONARY 1959 (2d ed. 1991).
20
Id.
12
his property and that it had hired an appraiser to determine its value, the City wrote
Summerour, informed him that its appraiser valued the property at $85,000, and
offered to purchase the property for that amount. When Summerour did not respond,
the City sent him an identical letter in October 2010. Then, almost three years later
(in 2013), the City informed Summerour, via another letter, that his property had a
current appraised value of $95,000 and that the small store on the property had a
current appraised value of $46,700, and thus, the City would purchase the property
for $141,700. And finally, in 2014, in response to Summerour’s specific request, the
City finally provided him with a summary of its appraiser’s report, which it then
followed with a letter providing a full appraisal report dated July 17, 2013, and an
offer to purchase his property for $139,400.
The City contends that each of these offers complied with OCGA § 22-1-9 (3),
but contrary to the City’s argument, the 2010 and 2013 offers do not contain a
sufficient summary of the basis for the amount the City established as just
compensation, and the sufficient summary that was provided in 2014 came far too late
(i.e., long after “the initiation of negotiations”).
Specifically, the City’s June 23, 2010 “written statement of, and summary of
the basis for, the amount it established as just compensation” for Summerour’s
13
property was as follows: “The City of Marietta has employed a Certified Appraiser
to appraise your property. The Certified Appraiser has valued your property at
$85,000. The purpose of this letter is to offer you the appraised value of your
property. Please review this offer and let me know if you are willing to sell your
property to the City of Marietta for the certified appraised value.” The City’s October
6, 2010 offer was identical.
Before addressing the “substance” of the City’s three offers from 2013, it is
worth noting that these offers are arguably of no consequence for purposes of our
analysis because OCGA § 22-1-9 (3) explicitly requires a “condemning authority” to
“establish an amount which it believes to be just compensation and [to] make a
prompt offer to acquire the property for the full amount so established” prior to “the
initiation of negotiations” with the property owner. And by the City’s own admission,
it engaged in “constant and continuous negotiations” to acquire Summerour’s
property since “early summer 2010.”
Nevertheless, even if we were to consider the City’s offers to Summerour on
July 26, 2013, December 10, 2013, and December 12, 2013, they do no more than
note (1) that “[t]he city has engaged a professional certified real estate appraiser to
conduct a current appraisal on your property,” (2) the “current appraised value” of the
14
property (3) the value on “the business located on the property,” (4) “the total value
of the property,” (5) the City’s desire to purchase the property for the total value of
the property identified in the offers, and (6) aspects of the parties’s negotiations
(including an increased offer to purchase the property).
Suffice it to say, none of the foregoing offers satisfy the dictates of OCGA §
22-1-9 (3). Indeed, the City, as the “condemning authority,” was required to provide
Summerour, as “the owner of real property to be acquired,” with a “written statement
of, and summary of the basis for, the amount it established as just compensation.”
And while the dictionary definition of “summary” does not demand great detail, we
find that the summary envisioned by the statute requires, at a minimum, information
sufficient—as part of the “prompt offer” required prior to the initiation of the
negotiations—to provide the property owner with the ability to meaningfully evaluate
the offer. This is evident not only from the text and structure of OCGA § 22-1-9 (3),
but is also consistent with one of the explicitly stated purposes of OCGA § 22-1-9,
which is “to encourage and expedite the acquisition of real property by agreements
with owners.” Simply informing the property owner that the property has been
appraised and that the amount offered is the appraised amount, while certainly
concise, fails to convey the sum and substance of the basis of the offer.
15
However, as even Summerour seems to concede, the City’s 2014 offer, which
contained a summary of the City’s appraiser’s report, did fully comply with OCGA
§ 22-1-9 (3). And although the City shortly thereafter provided Summerour with a full
appraisal report, we do not find that the statute requires a condemning authority to
provide this level of detail, which goes far beyond any reasonable definition of
summary. Nevertheless, that Summerour ultimately received a full summary for the
basis of the City’s offer does nothing to alter the fact that it took the City several
years to comply with OCGA § 22-1-9 (3). Moreover, the fact that such a summary
was not provided until nearly four years into the parties’ negotiations demonstrates
that the City also ran afoul of the statute’s directive that such negotiations occur
expeditiously21 and further bears on the issue of whether the City acted in bad faith,
as we shall discuss infra. In sum, given the particular circumstances noted supra, we
conclude that the trial court erred in finding that the City complied with the dictates
of OCGA § 22-1-9.
2. Summerour also contends that the trial court erred in failing to dismiss the
petition on the ground that the City negotiated in bad faith in violation of OCGA §
21
See OCGA § 22-1-9 (“In order to encourage and expedite the acquisition of
real property by agreements with owners . . . .”).
16
22-1-9 (7). Given our holding in Division 1, supra, we must vacate the trial court’s
ruling and remand the case for further proceedings to resolve this issue.
OCGA § 22-1-9 (7) provides that “[i]n no event shall the condemnor act in bad
faith in order to compel an agreement on the price to be paid for the property[.]” And
in the context of condemnation cases, the Supreme Court of Georgia has held that the
term “bad faith” has been “sharply distinguished from negligence or bad judgment
and has been equated with conscious wrongdoing motivated by improper interest or
by ill will.”22 Even more specifically, our Supreme Court has explained that the term
“bad faith” has been “used side by side with the word ‘fraud’ in describing those
exercises of official discretion to condemn lands with which the courts will
interfere.”23
Here, in its findings and return, the special master cursorily concludes that the
City met its obligations under OCGA § 22-1-9 and participated in good-faith
negotiations. But given our holding in Division 1, supra, that the City’s 2010 and
2013 offers failed to comply with OCGA § 22-1-9 (3), the special master erred in
22
City of Atlanta v. First Nat. Bank of Atlanta, 246 Ga. 424, 424-25 (271 SE2d
821) (1980); accord Concept Capital Corp., 255 Ga. at 453 (3); Brannen v. Bulloch
Cty., 193 Ga. App. 151, 154 (387 SE2d 395) (1989).
23
City of Atlanta, 246 Ga. at 425.
17
finding that the City complied with, at the very least, this subsection of the statute.
And because it is unclear from a review of the return whether the special master
predicated its finding that the City engaged in good faith upon its finding that the City
had at all times complied with OCGA § 22-1-9 (3), or whether it treated those
separate issues disjunctively, we must vacate the trial court’s order adopting the
return and remand the case for further proceedings, in which the issue of bad faith is
more fully explored.
3. Finally, Summerour contends that the trial court erred in failing, at the very
least, to recommit the case to the special master so that he can seek discovery from
the City “and test whether the City’s initial offer to purchase his property was for the
full appraised value[.]” As previously noted, OCGA § 22-1-9 (3) requires that, prior
to the “initiation of negotiations,” the condemning authority “shall establish an
amount which it believes to be just compensation and shall make a prompt offer to
acquire the property for the full amount so established,” which, “[i]n no event shall
. . . be less than the condemning authority’s independent appraisal of the fair market
value of such property.” Given our holding in Division 1, supra, we also must remand
the case for further proceedings to allow the trial court to reconsider Summerour’s
request for any evidence related to the foregoing statutory directives.
18
For all of the foregoing reasons, we vacate the trial court’s order adopting the
special master’s return, and we remand this case for further proceedings consistent
with this opinion. In doing so, it is important to note that while Summerour has
argued for the dismissal of the City’s condemnation petition, we do not address in this
opinion the issue of the proper remedy for the City’s failure to comply with OCGA
§ 22-1-9. Indeed, given our remand of this case and directive to the trial court in that
regard, any discussion of ultimate remedies would be premature.
Judgment vacated and case remanded. Phipps, P. J., and Peterson, J., concur.
19