THIRD DIVISION

ELLINGTON, P. J.,

DILLARD and MCFADDEN, 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

November 13, 2015

In the Court of Appeals of Georgia

A15A1280. FINCHER ROAD INVESTMENTS, LLLP v.CITY OF

CANTON, GEORGIA.

DILLARD, Judge.

Fincher Road Investments, LLLP (“Fincher Road”) appeals the trial court’s

order on pre-trial issuesin a case arising from a condemnation action brought against

it by the City of Canton (“the City”). Following protracted litigation between the

parties (including a prior appeal to this Court),1the City sought to dismiss its

condemnation action. Fincher Road appeals the trial court’s ruling that it is only

entitled to attorney fees and costs of litigation but no compensation for any taking of

the property. We agree that the trial court erred and, for the reasons set forth infra, we

affirm in part and reverse in part. 

1

See Fincher Road Invs., LLLP v. City of Canton, 314 Ga. App. 852 (726 SE2d

120) (2012).
The record reflects that on October 11, 2010, the City filed a petition for

condemnation and declaration of taking with respect to property owned by Fincher

Road.

2 The City deposited $787,400 with the trial court, which it estimated to be just

and adequate compensation for the property. On October 25, 2010, the court issued

an order and judgment upon the petition, declaring that title had vested in the City

and that the City had the right of possession as to the property. On November 22,

2010, Fincher Road filed a notice of appeal to the court’s order as to the value of the

condemned property. That same day, Fincher Road also filed a petition to set aside

the declaration of taking, contending that the declaration was improper for a number

of reasons. 

At a hearing convened on December 7, 2010, and later in a written February

28, 2011 order, the trial court denied and dismissed Fincher Road’s petition to set

aside the declaration of taking based upon a failure to give the City 15 days’ notice

prior to the scheduled hearing. This Court then granted Fincher Road’s application

for interlocutory appeal of that dismissal. In that appeal, we determined that a

superior court has “the discretion to hold a hearing and consider the merits of the

petition if the rule nisi was not issued and served upon the condemnor a full 15 days

2 The City also filed petitions against others who are not parties to this appeal. 

2
before the hearing.”3 As a result, we remanded the case to the trial court to consider

whether, “in the exercise of its discretion and considering the attendant circumstances

. . . , [Fincher Road] should be afforded an opportunity for a hearing and a decision

on the merits of [its] petition[ ] to set aside the declaration of taking.”4

A remittitur was issued to the trial court on April 12, 2012. On that same day,

the City filed with the trial court a motion to set aside the order on the petition for

condemnation, asserting that it had determined condemnation of the propertywas “no

longer necessary for public use.” The City also concurrently filed a notice of

dismissal as to its condemnation action, relinquishing all rights to the property. In its

motion to set aside the condemnation judgment, the City asked that the court have the

clerk disburse to it the previously deposited funds. Fincher Road filed a motion in

opposition, contending that it was entitled to compensation for the City’s temporary

taking of its property prior to dismissal. Thus, Fincher Road opposed the City’s

request for disbursement of funds. Fincher Road also filed a motion for attorney fees

and costs of litigation. 

3 Fincher Road Invs., 314 Ga. App. at 853.

4

Id.

3
In an order on pre-trial issues, the trial court determined that Fincher Road was

entitled to attorney fees and costs of litigation under OCGA § 22-1-12 but was not

entitled to any other compensation. Thereafter, the court ordered that the case proceed

to trial solely to determine the amount of attorney fees and costs of litigation. This

Court granted FincherRoad’s application for interlocutory appeal, which we will now

consider. 

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.”

5 Suffice it to say,

private property rights are among “the most basic of human rights,”6

and it is the

5 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.”); 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 yearsto 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 THECONSTITUTION 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 William K. Lane III, “Your Raisins or Your Life”: The Harrowing of the

Takings Clause in Horne v. U.S. Department of Agriculture, 750 F.3d 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)).

4
“charge of the courts to defend them vigilantly.”7 A classic taking is, of course, one

in which “the government directly appropriates private property for its own use.”8In

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

perse, butrather to secure compensation in the event of otherwise proper interference

amounting to a taking.”9 Thus, governmental action that works a taking of property

“necessarily implicates the ‘constitutional obligation to pay just compensation.’”

10

7 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.”).

8 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)).

9 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

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.”).

10 FirstEnglishEvangelical LutheranChurch 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)

5
Consistent with this cherished constitutional safeguard, the Supreme Court of

the United States has recognized that, “though the classic taking is a transfer of

property to the State or another private party by eminent domain, the Takings Clause

applies to other state actions that achieve the same thing.”

11 And the government

“takes” property within the meaning of the Fifth Amendment when it “uses its own

property in such a way that it destroys private property,”12

enacts a regulation that

“forces a property owner to submit to a permanent physical occupation [cit] or

deprives him of all economically beneficial use of his property,”13

or

“recharacterize[s] as public property what was previously private property.”14 Thus,

the federal Supreme Court has concluded that “the particular state actor is

(“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.”).

11

Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S.

702, 713 (II) (A) (130 SCt 2592, 177 LE2d 184) (2010). 

12

Id. (citing United States v. Causby, 328 U.S. 256, 261-62 (66 SCt 1062, 90

LEd 1206) (1946); Pumpelly v. Green Bay Co., 20 LEd 557 (1872)).

13

Id. (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,

425-26 (102 SCt 3164, 73 LE2d 868) (2005); Lucas v. SC Coastal Council, 505 U.S.

1003, 1019 (112 SCt 2886, 120 LE2d 798) (1992)).

14

Id. (citing Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,

163-65 (101 SCt 446, 66 LE2d 358) (1980)).

6
irrelevant,”15

and that “[i]f a legislature or a court declares that what was once an

established right of private property no longer exists, it has taken that property, no

less than if the State had physically appropriated it or destroyed its value by

regulation.”16

But the Supreme Court of the United States has also recognized in more than

one case that “the government may elect to abandon its intrusion or discontinue

regulations.”17 Nevertheless, even such temporary takings are not “different in kind

frompermanent takings, for which the Constitution clearly requires compensation.”18

It is well established, then, that when “the government’s activities have already

worked a taking of all use of property, no subsequent action by the government can

15

Id. at 715 (II) (A) (emphasis omitted).

16

Id. (emphasis omitted).

17 First English Evangelical Lutheran Church of Glendale, 482 U.S. at 318 (II)

(citing Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 5 (104 SCt 2187, 81

LE2d 1) (1984); United States v. Dow, 357 U.S. 17, 26 (78 SCt 1039, 2 LE2d 1109)

(1958)).

18

Id.

7
relieve it of the duty to provide compensation for the period during which the taking

was effective.”19

Here, the City elected to acquire the subject property by filing a declaration of

taking,

20 which “allows the government to take title immediately by filing a petition

and declaration of taking and paying into the court registry just and adequate

compensation as determined by its own appraisal.”21

Indeed, under OCGA § 32-3-7, 

[u]pon the filing of the declaration of taking and the deposit into court,

which deposit shall be made at the time the declaration of taking is filed

19

Id. at 320 (II); see also United States v. Dow, 357 U.S. 17, 26 (78 SCt 1039,

2LE2d 1109) (1958) (“[A]bandonment does not prejudice the property owner. It

merely results in an alteration in the property interest taken—from full ownership to

one of temporary use and occupation.In such cases compensation would be measured

by the principles normally governing the taking of a right to use property

temporarily.” (citations omitted)); Cobb Cty. v. McColister, 261 Ga. 876, 877 (413

SE2d 441) (1992) (recognizing that the Supreme Court of the United States has “held

that the Fifth Amendment’s Just Compensation Clause require[s] the government to

provide just compensation for a temporary taking that denie[s] a landowner all use of

his property”).

20

See OCGA § 32-3-6 (providing the requirements of a declaration of taking,

which must be filed in addition to a petition under OCGA § 32-3-4); see also OCGA

§ 32-3-4 (referring to petition for taking); OCGA § 32-3-5 (providing requirements

of petition referred to in OCGA § 32-3-4).

21 Windsor v. City of Atlanta, 287 Ga. 334, 335 n.1 (695 SE2d 576) (2010)

(emphasis supplied); see also Dorsey v. Dep’t of Transp., 248 Ga. 34, 36 (279 SE2d

707) (1981) (“The petition is not a mere pleading but an instrument which passestitle

when filed and just and adequate compensation is paid into the court . . . .”).

8
to the use of the persons entitled thereto, of the sum of money estimated

in the declaration by the condemning authority to be just compensation,

title to the property in fee simple absolute or such lesser interest as is

specified in the declaration shall vest in the condemnor; the land shall

be deemed to be condemned and taken for the use of the condemnor;

and the right to just compensation for the same shall vest in the persons

entitled thereto.

22

Likewise, OCGA § 32-3-13 provides that “[n]o judgment of any court and no

order or ruling of the judge thereof shall be necessary to give effect to the declaration

of taking provided for in Code Section 32-3-6; but the same shall be self-executing,

subject, however, to the power of the court as provided for in Code Section

32-3-11.”

23 The latter Code Section authorizes a superior-court judge to, upon proper

pleadings and evidence, “set aside, vacate, and annul the declaration of taking,

together with any title acquired thereby . . . .”24 This may be done in situations of

“fraud or bad faith, the improper use of the condemnation powers, the abuse or

22

 OCGA § 32-3-7 (a) (emphasis supplied).

23

 OCGA § 32-3-13 (a).

24

 OCGA § 32-3-11 (a).

9
misuse of the condemnation powers, and such other questions as may properly be

raised.”25

As discussed supra, Fincher Road challenged the City’s petition and

declaration of taking under OCGA § 32-3-11, but the trial court dismissed Fincher

Road’s challenge for a failure to comply with the procedural requirements of OCGA

§ 32-3-11 (c). We then remanded to the trial court to exercise its discretion under

OCGA § 32-3-11 (c) and determine whether Fincher Road was nevertheless entitled

to a hearing on its challenge.26 But because the City dismissed its condemnation

proceeding concurrent with receipt of the remittitur, the trial court never determined

whether it would—or should—exercise its authority to “set aside, vacate, and annul

the declaration of taking, together with any title acquired thereby[.]”

27

25 City of Atlanta v. Yusen Air & Sea Servs. Holdings, Inc., 263 Ga. App. 82,

82 (1) (587 SE2d 230) (2003) (punctuation omitted); see also OCGA § 32-3-11 (b)

(providing the questions upon which the power described in subsection (a) is

restricted).

26

See Fincher Road Invs., 314 Ga. App. at 853; see also OCGA § 32-3-11 (c)

(providing the procedural requirements for a condemnee’s challenge brought under

subsection (b)).

27

 OCGA § 32-3-11 (a). 

10
When a condemning authority abandons its condemnation proceeding, the

court with jurisdiction “shall award the owner of any right or title to or interest in

such real property such sum as will in the opinion of the court reimburse such owner

for his or her reasonable costs and expenses, including reasonable attorney, appraisal,

and engineering fees, actually incurred because of the condemnation proceedings[.]”

28

The City argued below, and argues again on appeal, that these statutory damageslimit

Fincher Road’s recovery.

The trial court agreed with the City that Fincher Road was only entitled to

recover attorney fees and costs of litigation under OCGA § 22-1-12 (a) and that

Fincher Road, contrary to its contention, was not entitled to any other compensation

for a temporary taking of its property. Indeed, the trial court concluded that any

compensation beyond attorney fees and costs “would be a windfall” because Fincher

Road would be fully compensated by receipt of attorney fees and costs. We disagree

with this conclusion, and we reject the City’s argumentsthat Fincher Road should not

be compensated for a taking it contended was a nullity.

In a recent opinion authored by Justice David Nahmias, our Supreme Court

recognized that OCGA § 22-1-12 “was enacted as part of the 2006 ‘Landowner’s Bill

28

 OCGA § 22-1-12 (a).

11
of Rights and Private Property Protection Act,’ which expanded property owners’

protections against condemnation rather than limiting those safeguards.”29Instead,

OCGA § 22-1-12 functions to “allocate the costs imposed on the condemnor to the

condemnees if the condemnor abandons a condemnation action at any point.”30 And

unlike most plaintiffs, “condemnors that abandon their actions must . . . pay the

property owner’s reasonable costs and expenses actually incurred because of the

condemnation proceedings, including attorney, appraisal, and engineering fees.”31

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.”32

29 Dillard Land Invs., LLC v. Fulton Cty., 295 Ga. 515, 522-23 (2) (c) (761

SE2d 282) (2014); see also U.S. CONST. Art. VI (“This Constitution, and the Laws

of the United States which shall be made in Pursuance thereof . . . shall be the

supreme Law of the Land . . . .”); GA. CONST. Art.3, Sec. 6, Para. I (“The General

Assembly shall have the power to make all laws not inconsistent with this

Constitution, and notrepugnant to the Constitution of the United States, which itshall

deem necessary and proper for the welfare of the state.”).

30 Dillard Land Invs., 295 Ga. at 523 (2) (c).

31

Id.

32 FirstEnglishEvangelical LutheranChurch of Glendale, 482 U.S. at 321 (II).

12
Indeed, while it is certainly true, as our Supreme Court has held, that a

declaration of taking that fails to strictly comply with statutory requirements “cannot

vest title to the land in the condemnor,”33

a trial court must still be presented with the

issue of compliance so that it may make a determination as to same and actually

exercise its authority to set aside, vacate, or annul a declaration of taking.34 But given

the timing of the City’s dismissal, that never occurred in this case. Accordingly,

Fincher Road is entitled to just and adequate compensation for the City’s temporary

33 Dorsey, 248 Ga. at 37.

34 Cf. Postell v. Bd. of Comm’rs of Houston Cty., 317 Ga. App. 898, 899 (1)

(732 SE2d 303) (2012) (holding that, notwithstanding appellant’s contention that

County failed to comply with statutory requirements, appellant had no standing to

challenge declaration of taking because he had no interest in the property at the time

declaration wasfiled, and title accordingly passed upon the filing of same); Yusen Air

& Sea Serv. Holdings, 263 Ga. App. at 84 (holding that trial court properly set aside

the taking of appellee’s property when City failed to comply with OCGA § 32-3-6

and, accordingly, City’s declaration of taking could not vest title in the City).

13
taking of its property,

35

and OCGA § 22-1-12 (a) in no way acts to limit Fincher

Road’s right of recovery in this regard. 

For all of the foregoing reasons, we affirm the portion of the trial court’s order

determining that Fincher Road was entitled to attorney fees and costs of litigation

under OCGA § 22-1-12, but we reverse the court’s ruling that Fincher Road was not

entitled to any additional compensation for the government’s temporary taking of its

property.

Judgment affirmed in part and reversed in part. McFadden, J., concurs.

Ellington, P. J., concurs in judgment only.

35

See Dow, 357 U.S. at 26 (“[A]bandonment does not prejudice the property

owner. It merely results in an alteration in the property interest taken—from full

ownership to one of temporary use and occupation. In such cases compensation

would be measured by the principles normally governing the taking of a right to use

property temporarily.” (citations omitted)); McColister, 261 Ga. at 877 (recognizing

that the Supreme Court of the United States has “held that the Fifth Amendment’s

Just Compensation Clause require[s] the government to provide just compensation

for a temporary taking that denie[s] a landowner all use of his property”).

14