Summerour v. City of MariettaSummerour v. City of Marietta
Case Information
*1 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.
D ILLARD , 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
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.
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 *4 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
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
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.” Suffice it to say,
*7
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
*8
“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
,
[6]
First English Evangelical Lutheran Church of Glendale
,
[7]
Concept Capital Corp. v. DeKalb Cty.
,
(2011) (punctuation omitted). Id. (punctuation omitted).
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
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
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,
[13]
See Arizona v. Inter Tribal Council of Arizona, Inc.
, ___U.S. ___ (II) (B)
(
(punctuation omitted);
accord Deal
,
is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.” [16]
Here,
[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,
[b]efore the initiation of negotiations for fee simple interest for real property, the condemning authority shall establish an amount which it *12 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 *13 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
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 *14 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
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 *15 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
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
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 § *17 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.
Here, in its findings and return, the special master cursorily concludes that the
City met its obligations under
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,
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
Judgment vacated and case remanded. Phipps, P. J., and Peterson, J., concur .
Notes
[1]
[2] William K. Lane III,
“Your Raisins or Your Life”: The Harrowing of the
Takings Clause in Horne v. U.S. Department of Agriculture
,
[3] Lane,
supra
note 5, at 761;
see also
J OHN L OCKE ,
The Second Treatise
, T WO
T REATISES OF G OVERNMENT § 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.”);
[4]
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency
, 535 U.S.
302, 324 (IV) (
[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
[10]
Holcomb v. Long
,
[11]
Deal v. Coleman
, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013)
(punctuation omitted);
accord Holcomb
,
[12]
See Holcomb
,
[16]
Holcomb
,
[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.”).
[18]
[19] T HE C OMPACT O XFORD E NGLISH D ICTIONARY 1959 (2d ed. 1991).
[20] Id.
[21]
See
[22]
City of Atlanta v. First Nat. Bank of Atlanta
,
[23]
City of Atlanta
,