Charles Pursley
Charles Pursley, who represents the property owner, says Fulton County’s move indicated it lacked confidence in its own appraisal. (John Disney/Daily Report)

Fulton County must abide by a judge’s order that it purchase for $5 million a parcel of property the county had sought to condemn then tried to back away from, the Georgia Supreme Court has ruled.

The ruling overturns a prior opinion of the Georgia Court of Appeals and means the county will now own property it wanted for a new library now under construction elsewhere.

The high court’s unanimous July 11 decision said that, by waiting until a superior court judge had entered a judgment affirming a special master’s appraisal of the property on Hollywood Road in northwest Atlanta, the county had lost its right to dismiss the condemnation action. If the county thought the value was too high, the justices noted, Fulton could have asked for a jury to assess the property—”a remedy the county did not pursue in this case.”

Fulton County Attorney R. David Ware said via email that the county tried to dismiss the condemnation because the special master’s award far exceeded the value placed on the property by the county and, at least initially, by the owner of the property. “The county decided that the property was not worth the amount of the special master award and therefore abandoned the proceeding,” Ware said.

The county’s appraisal was for less than $1 million, according to Ware. He said the property owner, Dillard Land Investments, valued it at less than $2 million until the special master hearing at which Dillard claimed the property was worth more than $9 million.

Pursley Friese Torgrimson partner Charles Pursley, who argued for Dillard before both appellate courts, said that prior to the special master’s valuation the county’s appraiser estimated the property at slightly under $1 million, basing his judgment on using it for single-family residences.

“For the special master, the property owners did two appraisals, both in excess of $9 million, based on multifamily use,” he said.

“The special master didn’t explain” his reasoning, Pursley said. “It looks like he took the $9 million valuation, said half’s clearly multifamily, the rest is not zoned, and came up with the $5 million.”

Thomas A. Bowman of Conyers’ Maddox, Nix, Bowman & Zoegler, who represented Dillard from the case’s inception, said he recalled that during initial discussions with the county, Dillard suggested the property was worth “in the range” of $2 million.

According to the decision penned by Justice David Nahmias, in January 2012 the Fulton County Commission passed a resolution saying its negotiations with Dillard to purchase the property were failing and authorizing the use of condemnation to acquire it. The commission said the county should use the special master method of condemnation, one of three types of condemnation allowed in Georgia. (As Nahmias explained, the other methods are the “assessors method,” whereby each party chooses an assessor, who then select a third assessor to reach consensus, and the “declaration of taking method,” which is often used for projects such as roads and highways but may not be used for projects like libraries.)

Fulton County Superior Court Judge Todd Markle appointed a special master, Ray Smith III. In May 2012, the special master ruled that the market value of the property was $5,187,500.

On May 16, 2012, Markle affirmed the special master’s valuation and vested title to the property with the county upon its payment of $5,187,500 into the court registry, ordering the parties to split the special master’s fees.

Instead of paying the award into the registry, Nahmias recounted, the county promptly filed a voluntary dismissal of the condemnation action. Dillard filed a motion to vacate Fulton’s dismissal, and the county asked the court to vacate the special master’s award.

In two August 2012 orders, Markle granted Dillard’s motion and denied the county’s, finding that neither party had filed an appeal for a jury trial under the special master statute to dispute the amount of the award and that the time to file such an appeal had expired.

The county appealed Markle’s order, and in June 2013 the Court of Appeals reversed it.

Writing with the concurrence of Judges Michael Boggs and Christopher McFadden, Judge Sara Doyle acknowledged a 2009 Court of Appeals decision, Gramm v. City of Stockbridge, 297 Ga. App. 165, in which a special master awarded a sum to a property owner. The city paid it, then appealed the award; before the appeal could be decided, the city voluntarily dismissed the condemnation.

In Gramm, the appellate court held that the city could not “assent to the judgment adopting the special master’s findings, pay in its money and seek to take possession of the property, and then disown the very property it has paid for and sought possession of in the action.”

Doyle said Dillard’s case was different. Because Fulton did not pay the money into the court registry or to the owner or take title to the property, it should have been allowed to dismiss its condemnation action, she concluded.

In his opinion reversing the Court of Appeals, Nahmias said that allowing Fulton County to unilaterally dismiss its condemnation flew in the face of decades of Georgia law barring a plaintiff’s ability to dismiss a case after a judgment has been entered. Citing the state Supreme Court’s 1974 decision Cooper v. Rosser, 233 Ga. 338, he wrote, “the plaintiff’s right to dismiss cannot be exercised after a verdict, or a finding by the judge, which is equivalent thereto, has been reached … The principle at the foundation of these decisions is that, after a party has taken the chances of litigation, and knows what is the actual result reached in the suit by the tribunal which is to pass upon it, he cannot, by exercising his right of voluntary dismissal, deprive the opposite party of the victory thus gained.”

Ware said the ruling means that, “to the extent the county still wants the property it must pay the amount of the award. … The trial court will now have to determine what will be the ultimate outcome of the condemnation proceeding.”

Bowman, one of Dillard’s lawyers, said the county missed its opportunity to challenge that outcome.

“That was their choice: they had 10 days,” said Bowman. If the county had appealed and sought a jury trial on the value, he said, it would have gained title to the property immediately but would have also had to pay the $5 million into the court registry pending that verdict.

“I think the county balked at having to pay $5 million to the court in order to get this property and get their project, and tried another way to wiggle off the hook,” said Bowman. “They got the Court of Appeals to bite, but we felt all along that the precedent was pretty clear.”

Pursley, who signed on to represent Dillard on appeal along with firm colleagues Christian Torgrimson and Angela Robinson, said the county’s move indicated it lacked confidence in its own appraisal.

Pursley, who has served as MARTA’s general counsel since 1984, said he has handled all of MARTA’s condemnations since the ’70s, “and MARTA uses the special master method exclusively. Until this case, I have never seen a condemnor try to dismiss and not appeal for a jury trial.”

“It’s clear this was an intentional, strategic decision made by the county not to appeal, and I suspect they were afraid they might have to pay more,” Pursley said. “If you have confidence in your appraisal, why would you not appeal?”

The case is Fulton County v. Dillard Land Investments, No. A13A0562.