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City of Marietta v. Summerour

Supreme Court of Georgia

October 30, 2017


          Blackwell, Justice

         This case concerns a small grocery store on Allgood Road in Marietta and, more particularly, the parcel of land on which that store sits. Ray Summerour has owned the land for nearly three decades. The City of Marietta wants to acquire the land for the purpose of building a public park. When the City was unable to negotiate a voluntary sale of the parcel, it resolved to take the land by eminent domain, and it filed a petition in the Superior Court of Cobb County to condemn the property. Following an evidentiary hearing before a special master, see OCGA § 22-2-100 et seq., the superior court adopted the return of the special master and entered an order of condemnation.

         Summerour appealed, and in Summerour v. City of Marietta, 338 Ga.App. 259 (788 S.E.2d 921) (2016), the Court of Appeals set aside the condemnation order. The Court of Appeals reasoned that, when the City attempted to negotiate a voluntary sale of the land, it failed to fulfill its obligations under OCGA § 22-1-9, and the Court of Appeals directed that the case be remanded for the superior court to consider whether the failure to comply with Section 22-1-9 amounted to bad faith. We issued a writ of certiorari to review the decision of the Court of Appeals, and we now hold that compliance with Section 22-1-9 is an essential prerequisite to the filing of a petition to condemn, that the City failed in this case to fulfill that prerequisite, and that its petition to condemn, therefore, must be dismissed, irrespective of bad faith. We accordingly affirm the judgment of the Court of Appeals to the extent that it set aside the order of condemnation, but we reverse its direction to the superior court to inquire into bad faith.

         1. The relevant facts are not in dispute. In 2009, Marietta voters approved the issuance of bonds for, among other purposes, the improvement and expansion of a park located at the site of an existing recreation center near the intersection of Allgood Road and North Marietta Parkway. Soon thereafter, the City commenced efforts to acquire several parcels of land in the vicinity of that recreation center, including the parcel owned by Summerour. On June 1, 2010, the City sent a letter to Summerour, informing him that the City had an interest in his property, that it had hired an appraiser to determine the value of the land, and that an offer to purchase the property was forthcoming. Three weeks later, the City sent a written offer to Summerour, which said:

The City of Marietta has employed a Certified Appraiser to appraise your property. The Certified Appraiser has valued your property at $85, 000.00. 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.

         Summerour did not respond to this offer. On October 6, 2010, the City sent another offer letter to Summerour, identical to its earlier written offer. Again, Summerour did not respond.

         For the next two-and-a-half years, the City did not correspond further with Summerour. But then, on May 23, 2013, the City resumed its efforts to acquire his land. That day, the City sent a letter to Summerour in which it expressed its continuing interest in the land and suggested that, if Summerour had any interest in selling the property, he ought to contact the City. In that letter, however, the City did not offer to purchase the land for any particular amount. Summerour again did not respond. The City hired a real estate appraiser to reappraise the land, and it engaged a business appraiser to assess the value of the grocery store that sits on the property. On July 26, 2013, a lawyer for the City sent another written offer to Summerour, which said:

This firm represents the City of Marietta which has an interest in purchasing your property located at the above referenced address. The city has engaged a professional certified real estate appraiser to conduct a current appraisal on your property and the current appraised value is $95, 000.00. In addition, the certified business appraiser has placed a value of $46, 700.00 on the business located on the property. Therefore, the total value of the property is believed to be $141, 700.00. Please accept this letter as an official request by the City of Marietta to purchase your property at the above address for the above stated value. At your convenience, please contact the undersigned regarding this matter.

         On August 13, 2013, Summerour responded. In a letter to the City, he explained that he had cooperated with the appraisers hired by the City, meeting with them and giving them the information that they requested. Summerour asked for a summary of the appraisals done for the City or "some form of documentation to show me how [the appraisers] came up with the numbers, " and he noted that the offer was less than he expected. Summerour said that he intended to obtain his own appraisal of the property, and he expressed his willingness to discuss the matter with the City.

         On December 4, 2013, Summerour sent another letter to the City, in which he made a counteroffer to sell the property for $375, 000. The next day, Summerour met with a lawyer for the City to discuss his counteroffer. The City rejected the counteroffer on December 10, 2013. Two days later, the City offered $152, 000 for the property and warned that, unless Summerour obtained his own appraisal and shared it with the City, "this is likely to be the [C]ity's highest offer." On December 17, 2013, Summerour rejected the latest offer but proposed a meeting to discuss the differences in how he and the City valued the property. Following the December negotiations, Summerour hired an attorney, and at some point, he obtained his own appraisal of the land.

         In April 2014, the lawyers for the City and Summerour corresponded about the property on several occasions, although the City refused to schedule a meeting with Summerour until he had his own "written signed appraisal" in hand. On May 8, 2014, Summerour's lawyer sent a letter to the City, reminding the City that it never had provided Summerour with a summary of its appraisals, notwithstanding its repeated demands that Summerour produce his own appraisal report. At that point, the City finally provided a summary of its appraisals to Summerour, and on May 16, 2014, the City produced a copy of an appraisal report. That report was dated July 17, 2013, almost ten months prior to its production.

         On May 21, 2014, the City notified Summerour that the mayor and city council soon would meet to consider whether to acquire the property by eminent domain. The City again offered to purchase the property based on its 2013 appraisal. A flurry of negotiations followed, in the course of which the City eventually offered $160, 000 for the land, but Summerour rejected the City's final offer. On June 11, 2014, the city council approved a motion for the City to acquire the land by eminent domain.

         On October 2, 2014, the City filed a petition in the Superior Court of Cobb County to condemn the parcel of land owned by Summerour. Summerour filed an answer, and the trial court appointed a special master to conduct an evidentiary hearing. For three days, the special master heard evidence from both parties regarding their respective valuations of the land. In addition, Summerour argued to the special master that the petition should be dismissed because the City had failed to comply with OCGA § 22-1-9 when it attempted to negotiate a voluntary sale of the land. On January 20, 2015, less than one week after the conclusion of the hearing, the special master issued written findings that the City had complied with its statutory obligations and had negotiated with Summerour in good faith. The special master also found that the fair market value of Summerour's land was $225, 000. The findings of the special master were returned to the superior court, and the parties filed exceptions to the return. After a hearing, the trial court adopted the special master's return as its own judgment, and it ordered the condemnation of the land.

         Summerour appealed, and the Court of Appeals set aside the condemnation order. In its opinion, the Court of Appeals pointed to OCGA § 22-1-9 (3), which, it said, required the City to provide Summerour with a written summary of the basis for its valuation of his land before, or at least around the time that, negotiations commenced. See Summerour, 338 Ga.App. at 265 (1). Upon its review of the record, the Court of Appeals concluded that the City did not provide Summerour with any such summary in a timely manner, and indeed, the City only provided a summary in May 2014, "long after the initiation of negotiations." Id. (punctuation omitted). Noting that the failure of the City to fulfill its obligations under Section 22-1-9 (3) might be indicative of bad faith, the Court of Appeals directed the superior court on remand to reconsider the question of bad faith. See id. at 267 (2). The Court of Appeals declined to decide whether noncompliance with Section 22-1-9 (3) is remediable, irrespective of bad faith. See id. at 268 (3).

         The City timely filed a petition for a writ of certiorari. We granted that petition, directing the parties to address three questions:

(1) To what extent are the provisions of OCGA § 22-1-9 mandatory requirements?
(2) Did the Court of Appeals err in determining that [the City] failed to comply with OCGA § 22-1-9 (3)?
(3) If the provisions of OCGA § 22-1-9 are mandatory and the Court of Appeals correctly determined that [the City] failed to comply, what is the proper remedy?

We turn now to these questions.

         3. To begin, we consider the extent to which the provisions of OCGA § 22-1-9 are mandatory. The City contends that Section 22-1-9 sets forth merely suggested guidelines for condemnations, which are not mandatory or, at the least, judicially enforceable. Summerour responds that the provisions of Section 22-1-9 are mandatory except to the extent that compliance with those provisions is impracticable, and he says that the statute imposes meaningful and judicially enforceable limits upon condemnations, even if it leaves some matters to the discretion of the condemning ...

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