Cobb County v. Robertson
314 Ga. App. 455
| Ga. Ct. App. | 2012Background
- Cobb County filed a petition for condemnation in rem and a declaration of taking against Robertson's real property.
- The trial court condemned the property and vested title and possession in Cobb County.
- Robertson moved to set aside, vacate, and annul the declaration of taking, asserting the condemnation was unauthorized.
- A hearing on Robertson's motion was scheduled more than 60 days after service of the declaration of taking; Cobb County moved to dismiss for noncompliance with OCGA § 32-3-11(c).
- The trial court denied the motion to dismiss; the issue on appeal was whether the 60-day hearing requirement is mandatory or directory.
- The court held that OCGA § 32-3-11(c) is directory, so the court did not err in denying dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 60-day hearing requirement is mandatory or directory | Robertson argued the 60-day deadline is mandatory and dismissal was required. | Cobb County contends the 60-day deadline is directory and not jurisdictional. | Directory; no dismissal for timing. |
| Whether the court retained jurisdiction to hear the motion after the 60-day period | Robertson maintains the court lost jurisdiction if the hearing occurred after 60 days. | County contends the court controls its calendar and retains authority to proceed. | Court retained authority; calendar control lies with the court. |
| Effect of a delayed hearing on the condemnee's motion to set aside | Robertson argues a late hearing prejudices the condemnee's rights. | County argues delay does not affect the substantive authority to grant relief. | Delay does not require dismissal; relief can be considered. |
Key Cases Cited
- Jasper County Bd. of Tax Assessors v. Thomas, 289 Ga.App. 38, 656 S.E.2d 188 (Ga. App. 2007) (directory vs. mandatory timing considerations)
- Charles H. Wesley Education Foundation v. State Election Bd., 282 Ga.707, 654 S.E.2d 127 (Ga. 2007) (statutory timing provisions generally directory when no prejudice)
- Lopez-Aponte v. City of Columbus, 267 Ga.App. 65, 599 S.E.2d 1 (Ga. App. 2004) (disapproved part noted; timing considerations discussed)
- Dept. of Transp. v. City of Atlanta, 259 Ga.305, 380 S.E.2d 265 (Ga. 1989) (hearing timeline considerations in statutory schemes)
- State v. Henderson, 263 Ga.508, 436 S.E.2d 209 (Ga. 1993) (good cause continuances and timing in statutes)
- Sanchez v. Walker County Dept. of Family & Children Services, 237 Ga.406, 229 S.E.2d 66 (Ga. 1976) (mandatory notice/hearing considerations in juvenile statutes)
- Etheridge v. Etheridge, 242 Ga.101, 249 S.E.2d 569 (Ga. 1978) (calendar control and scheduling authority)
- Nodvin v. DeKalb County, 158 Ga.App. 819, 282 S.E.2d 410 (Ga. App. 1981) (calendar control; judge's duty to set hearings)