Editor's Note:   Woods v. DOT, 269 Ga. 53, 494 S.E.2d 507 (1997) (Hon. J. Sears), reveresed the Court of Appeals in Woods v. DOT. 

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The Supreme Court recently granted certiorari to the Court of Appeals to review the case of Woods v. Department of Transportation, ____, Ga. App. ____, ____ S.E.2d ____ (1997) (Case number A96A2412 decided 2-14-97). In granting the petition, the Supreme Court noted that it was particularly interested in the issue of, "Whether OCGA § 9-15-14 applies to condemnation cases."

This article will review the convoluted history of the award of attorney's fees in condemnation cases, review the Court of Appeals' analysis in the underlying case, show that OCGA § 9-15-14 attorney's fees are properly allowed in "any civil action," and show that "sovereign immunity" is no bar to seeking OCGA § 9-15-14 attorney's fees against the DOT.

I. The History of Awards of Attorney's Fees in Condemnation Cases.

The development of the law in regard to the recoverability of attorney fees in condemnation cases has been convoluted.

The 1983 Georgia Constitution provides the starting point for analysis. Article I, § III, Par. I (a) of the Georgia Constitution provides as follows: "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."

If a landowner's property is condemned and the landowner is forced to hire a lawyer and litigate against DOT or a utility to obtain "fair market value," does the "just and adequate" compensation clause include the landowner's attorney fees and litigation expenses? That question has been answered in various ways at various times.

In Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971) the Supreme Court held as follows: "The right to recovery of attorney's fees and expenses of litigation are not embraced within the just and adequate compensation for land taken by eminent domain..." The Bowers' decision reflected a 4-3 split on the court and was complicated by the fact that two justices were disqualified and two (2) Superior Court judges sat as visiting justices. One of the visiting judges voted with the four member majority.

Five (5) years later in White v. Georgia Power Company, 237 Ga. 341, 227 S.E.2d 385 (1976), the Supreme Court reversed positions and overruled Bowers:

We now hold that the words "just compensation"contained in our constitution are to be interpreted by the judiciary to include attorney fees incurred by a condemnee or condemnees in an eminent domain case and are also interpreted to include all reasonable and necessary expenses of litigation incurred by such condemnees in eminent domain cases.

Three (3) years later in Dekalb County v. Trustees, Decatur Lodge No. 1602, B.P.O Elks, 242 Ga. 707, 251 S.E.2d 243 (1978), the Supreme Court again reversed direction:

We have reached the conclusion that this court was in error in White ... when it held 'the words just and adequate compensation' contained in our Constitution are to be interpreted by the judiciary to include attorney fees incurred by a condemnee or condemnees in an eminent domain case..."

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We now overrule White and subsequent cases decided pursuant to its holding...

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We reiterate that the majority of this court does not oppose the award of attorney fees in eminent domain cases. We simply hold that a proper construction of our Constitution does not require such an award, and we further hold that it is a matter for legislative determination by the General Assembly.

The Dekalb County decision was again a 4-3 decision. Justice Nichols, in dissent, called forth the imagery of the "American Minuteman, with his flintlock rifle at the ready" to defend against the enemy. He described the majority opinion as "wholesale destruction of the rights of property owners," and predicted that, "[t]he people of Georgia surely will demand restoration of their rights by way of a constitutional amendment." (emphasis in original).

The 1983 Constitution added Article I, Section III, Paragraph I, Subsection (d). That subsection provides as follows: "The General Assembly may provide by law for the payment by the condemnor of reasonable expenses, including attorney's fees, incurred by the in determining just and adequate compensation."

The General Assembly has never enacted a statute that explicitly provides for the award of attorney fees and litigation costs as part of the constitutionally required "just and adequate compensation" in eminent domain cases.

In 1986, however, the General Assembly enacted OCGA § 9-15-14. That statute provides as follows:

(a) In any civil action in any court of record of this state, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney's fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party's attorney, or against both in such manner as is just.

(b) The court may assess reasonable and necessary attorney's fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the "Georgia Civil Practice Act." As used in this Code section, "lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious.

(c) No attorney or party shall be assessed attorney's fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.

(d) Attorney's fees and expenses of litigation awarded under this Code section shall not exceed amounts which are reasonable and necessary for defending or asserting the rights of a party.

(e) Attorney's fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.

(f) An award of reasonable and necessary attorney's fees or expenses of litigation under this Code section shall be determined by the court without a jury and shall be made by an order of court which shall constitute and be enforceable as a money judgment.

(g) Reserved.

(h) This Code section shall not apply to proceedings in magistrate courts. However, when a case is appealed from the magistrate court, the appellee may seek litigation expenses incurred below if the appeal lacks substantial justification.

II. The Woods' Case

Into that background came the Woods case. The Department of Transportation condemned property owned by Woods as well as his professional corporation pursuant to OCGA § 32-3-1. DOT filed a condemnation petition and deposited $76,000 into the registry of the court contending that said amount was just and adequate compensation for the taking. Woods appealed pursuant to OCGA § 32-4-14. The jury awarded $162,000 and final judgment for that amount was entered. Woods then timely filed an OCGA § 9-15-14 motion seeking an award of attorney's fees and litigation costs.

The trial court denied the motion reasoning that since the General Assembly did not enact a law providing for the award of attorney's fees as part of just compensation under the Georgia Constitution, no award of attorney's fees could be made in eminent domain cases.

The Court of Appeals reversed finding as follows:

OCGA § 9-15-14 applies "in any civil action", and a condemnation proceeding is a civil action. The plain and clear language of the statute established the intent of the General Assembly that it apply in condemnation proceedings. The term is all inclusive. The designation is one relating to type of action, not to character or identity of party. Thus, its application to the DOT as condemnor is authorized. (Citations omitted).

The Court of Appeals went on to find that no evidence would support an award of mandatory fees under OCGA § 9-15-14 (a) as DOT did not assert a position "with respect to which there existed such a complete absence of justiciable of law or fact that it could not be reasonably that a court" would accept it.

The Court of Appeals noted, however, that by offering less than half the amount found by the jury to be just and adequate compensation, DOT could have unnecessarily expanded the proceedings by improper conduct, thereby authorizing a discretionary award under § 9-15-14 (b). The Court of Appeals, therefore, remanded the case by to the trial court for a finding on that issue.

The Supreme Court granted Certiorari and stated that it was particularly concerned with the issue of "whether OCGA § 9-15-14 applies to condemnation cases."

III. OCGA § 9-15-14, Attorney's Fees are Recoverable in Any Civil Action

The issue of the recoverability of attorney's fees and litigation expenses in condemnation cases may be broken into two related questions:

1) are reasonable and necessary attorney's fees and litigation expenses incurred in condemnation cases part of the "just and adequate" compensation required by the constitution?

2) if attorney fees and litigation expenses are not routinely available as part of the "just and adequate compensation," does OCGA § 9-15-14 or OCGA § 51-7-80, et seq., authorize the award of attorney's fees and litigation expenses if one party takes frivolous positions or unnecessarily expands the proceedings?

It would appear that in the current state of the law, the answer to the first question is "No." The Dekalb County opinion clearly held that the "just and adequate compensation" requirement of the Constitution did not include attorney fees and litigation costs. The Dekalb County opinion clearly invited the General Assembly to remedy the situation. In 1983, the Georgia Constitution was amended to authorize the General Assembly to include attorney's fees and litigation expenses part of the just and adequate compensation for the taking. That amendment can only be read as meaning that in the absence of action by the General Assembly, attorney's fees and litigation costs are not recoverable as part of the just and adequate compensation. The General Assembly has not seen fit to provide for the recovery of fees and expenses as part of the just and adequate compensation. Thus, it would seem clear that, in the absence of remedial legislation, attorney's fees and litigation expenses are not part of the just compensation required by constitution.

The next issue is whether or not abusive litigation sanctions under OCGA § 9-15-14 are available in eminent domain cases. Two reported decisions have involved the application of OCGA § 9-15-14 in an eminent domain setting. DOT v. Franco's Pizza & Delicatessen, Inc, 200 Ga. App. 723, 409 S.E.2d 281 (1991); Cobb County v. Sevani, 196 Ga. App. 247, 395 S.E.2d 572 (1990). Neither of those cases, however, addressed whether or not, in an appropriate case, OCGA § 9-15-14 sanctions could be applied in eminent domain cases. Franco's Pizza stands for the proposition that the Superior Court may not impose OCGA § 9-15-14 damages for allegedly abusive actions taken in the Court of Appeals. Sevani stands for the proposition that actions taken before the instigation of litigation may not form the basis of an abusive litigation sanction.

There are at least three (3) arguments to support the application of OCGA § 9-14-15 sanctions in eminent domain cases. First, the explicit language of the statute seems to encompass eminent domain cases. OCGA § 9-15-14, by its own terms, applies to "any civil action in any court of record of this state."

Since an eminent domain action is a "civil action" and is brought in the Superior Court, which is undeniably a court of record, it appears that eminent domain cases are within the purview of the statute.

Secondly, the General Assembly understood how to make exceptions to the "any civil action" rule when it chose to do so.

OCGA § 9-15-14 (g) states as follows:

This code section shall not apply to proceedings in magistrate courts. However, when a case is appealed from magistrate court, the appellee may seek litigation expenses incurred below if the appeal lacks substantial justification.

Thus, the General Assembly knew how to make explicit changes in the "any civil action" rule when it so desired. In passing OCGA § 9-15-14, the General Assembly could have written that the statute applies "in all civil actions in courts of record of this state other than in eminent domain cases." The General Assembly chose not to make such an exception.

Finally, the purposes of OCGA § 9-15-14 are promoted by its application to eminent domain cases. The purpose of an award under OCGA § 9-15-14 is to punish and deter litigation abuses as well as to recompense litigants who are forced to expend their resources in contending with abusive litigation positions. Furguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551 (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 376 S.E.2d 860 (1989).

To the extent that a party to a condemnation action engages in frivolous, abusive litigation, it would seem that the threat of sanctions could both punish and deter such tactics. Similarly, if one side of a condemnation action unnecessarily expands the proceedings, through discovery abuse or otherwise, an OCGA § 9-15-14 award could compensate the other party for the resources required to counter such positions.

It should be noted that to allow an award of attorney's fees and litigation expenses under OCGA § 9-15-14 in eminent domain cases would not effect the amount of just and adequate compensation. The OCGA § 9-15-14 award would, rather, accomplish it own purposes of sanctioning abusive litigation tactics and compensating the victims of such tactics.

It should also be noted that the fact that amounts different from the amounts deposited into court were awarded as "just and adequate compensation" (either higher or lower), should not, in and of itself, justify an award of attorney fees and litigation expenses. Presumably, if the court allows OCGA § 9-15-14 awards in condemnation cases, such awards will be subject to the requirements of the statute as in any other civil action. Under OCGA § 9-15-14 (a), therefore, no mandatory award can issue unless a party asserted a position "with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not reasonably be believed that a court would accept" the position. Similarly, for an award to issue under OCGA § 9-15-14(b), there must be a finding that a party's position "lacked substantial justification," was interposed for delay or harassment, or unnecessarily expanded the proceedings.

Thus, unless the difference in the amount deposited into court and the amount awarded at trial is so large as to "lack substantial justification" for the amount claimed to be just and adequate or that it could not be reasonably believed that the court would accept such an amount as just and adequate compensation, then the mere fact that the jury finds a different amount as was deposited should not form the basis for an award of attorney's fees.

IV. Sovereign Immunity does not Shield DOT from OCGA § 9-15-14 Attorney's Fees

The argument for prohibiting OCGA § 9-15-14 awards in condemnation cases is based on the doctrine of sovereign immunity. DOT has argued that it has sovereign immunity from awards under OCGA § 9-15-14. The government is immune from suit in the absence a waiver of its sovereign immunity. A waiver of sovereign immunity must be explicit.

DOT argues that since OCGA § 9-15-14 makes no explicit waiver of sovereign immunity and, in fact, does not mention the State at all, sovereign immunity has not been waived and, therefore, such immunity prohibits any award under OCGA § 9-15-14 against the State.

That argument fails for two reasons. First, it is unclear that a waiver of sovereign immunity is necessary other than the waiver needed in order to bring the underlying cause of action. Generally, sovereign immunity only prevents "suits" against the government. Echols v. Dekalb County, 146 Ga. App. 560, 247 S.E.2d 114 (1978). OCGA § 9-15-14 does not create a cause of action but rather merely makes procedural and substantive provisions for the court to award sanctions against certain abusive conduct. Devours v. Hog Mountain Creations, Inc., 207 Ga. App. 557, 428 S.E.2d 388 (1993). Thus, is not clear that a waiver of sovereign immunity is necessary to authorize sanctions against the State.

For instance, there is no explicit waiver of sovereign immunity contained in the discovery sanctions code section, OCGA § 9-11-37. If, in a contract action or in an action under the State Tort Claims Act, the State simply refused to produce documents required by court order, would sovereign immunity prevent the court from imposing sanctions for discovery abuse?

To say that OCGA § 9-15-14 does not create a cause of action for abusive litigation does not mean that the General Assembly has not created such a tort. The General Assembly passed OCGA § 51-7-80, et seq., which not only creates a cause of action for abusive litigation, but expressly waived sovereign immunity for it.

OCGA § 51-7-81 imposes liability upon "any person" who litigates abusively. OCGA § 51-7-80 (6) defines "person" as "an individual, corporation ... or any other entity including any governmental entity with capacity to sue or be sued." In addition, under OCGA § 51-7-83 (b), if the sole damages sought to be recovered are litigation expenses and attorney fees, the "procedures of provided in Code Section 9-15-14 shall be utilized..."

Thus, the General Assembly explicitly provided that governmental entities would be subject to abusive litigation claims and that such claims could, in certain circumstances, be pursued through the procedures of OCGA § 9-15-14. Such provisions of the General Assembly constitute a waiver of sovereign immunity.

V. Conclusion

In conclusion, the Supreme Court should find that OCGA § 9-15-14 applies to all civil actions including the civil action of eminent domain by the State. It is the prerogative of the General Assembly to determine if attorney's fees and litigation expenses are part of the just and adequate compensation required in condemnation cases. To date, the General Assembly, despite specific constitutional authority and urging by the Supreme Court, has chosen not to do so. The Courts should not usurp the prerogatives of the General Assembly and use OCGA § 9-15-14 as a back door method of including attorney's fees and litigation expenses in the usual case.

The General Assembly, however, has decided to use the sanctions, in the form of awards of attorney's fees and litigation costs, as a method to deter abusive litigation in all civil action in courts of record in Georgia. The General Assembly has decided that governmental entities are subject to liability for abusive litigation. Thus, in the exceptional condemnation case in which a governmental entity litigates abusively, sanctions of attorney's fees and litigation expenses are just and proper.

The Supreme Court should affirm the Court of Appeals' decision in Woods to allow OCGA § 9-15-14 sanctions in condemnation cases and the matter should be remanded to the trial court for a determination of whether or not DOT violated the provisions of OCGA § 9-15-14(b).

Dwight Meredith
August 1, 1997

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