BRYDE et al.
CITY OF ATLANTA.
BARNES, P. J., MERCIER and BROWN, JJ.
City of Atlanta ("the City") instituted
condemnation proceedings on March 6, 2018, against certain
property owned by Virginia and Walton Bryde in order to
complete a bridge on Powers Ferry Road. Pursuant to the
requirements of OCGA § 32-3-8, the petition and
declaration of taking were personally served upon the Brydes
on March 27, 2018. On May 4, 2018, the Brydes filed an answer
along with a notice of appeal pursuant to OCGA §
32-3-14, seeking a jury trial as to the issue of just and
adequate compensation. Upon the City's motion, the trial
court dismissed the notice of appeal as untimely under OCGA
§ 32-3-14, and entered final judgment for the Brydes in
the amount paid into the court registry pursuant to OCGA
§ 32-3-7. The Brydes appeal, asserting that their notice
of appeal was timely pursuant to OCGA § 9-11-4 (h) of
the Civil Procedure Act (CPA), and further that, even if
their notice of appeal was untimely, the trial court erred in
also dismissing their answer.
1. OCGA § 9-11-4 (h) ("Rule 4 (h)") provides,
in part, that
[t]he person serving the process shall make proof of such
service with the court in the county in which the action is
pending within five business days of the service date. If the
proof of service is not filed within five business days, the
time for the party served to answer the process shall not
begin to run until such proof of service is filed.
further defines "proof of service" to include the
affidavit of the person serving the party. OCGA § 9-11-4
(h) (2). Here, the return of service affidavits show that
Walton Bryde was personally served at his residence on March
27, 2018, and that service on Virginia Bryde was effected by
leaving copies with Walton Bryde at their residence on the
same date. Both affidavits were filed with the clerk of court
on April 5, 2018, more than five business days from the date
of service. According to the Brydes, "the City's
delay in filing its return of service affidavits triggered an
automatic, mandatory tolling under [Rule 4 (h)] of the
Brydes' responsive pleading deadline." The Brydes
filed their notice of appeal and answer on May 4, 2018,
within 30 days of the date the City's return of service
affidavits were filed.
response, the City maintains that the Brydes' notice of
appeal was untimely under OCGA § 32-3-14, which applies
to special statutory condemnation proceedings, and provides
If the owner, or any of the owners, or any person having a
claim against or interest in the property is dissatisfied
with the amount of compensation as estimated in the
declaration of taking and deposited in court, as provided for
in Code Section 32-3-7, such person or persons, or any of
them, shall have the right, at any time subsequent to the
filing of the declaration and the deposit of the fund into
court, but not later than 30 days following the date of
the service as provided for in Code Sections 32-3-8 and
32-3-9, to file with the court a notice of appeal, the
same to be in writing and made a part of the record in the
(Emphasis supplied.) OCGA § 32-3-14. OCGA § 32-3-8
applies to service on residents of this state in condemnation
proceedings and requires that the petition and declaration of
taking be personally served upon any owners of the property
sought to be condemned. OCGA § 32-3-8 (a). Thus, according
to the City, the Brydes had 30 days from March 27, 2018, the
date of personal service, to file their notice of appeal, and
the May 4, 2018 notice of appeal was filed after the
expiration of that 30-day deadline. The City further contends
that to the extent Rule 4 (h) permits a notice of appeal to
be filed more than 30 days following personal service, it
conflicts with OCGA § 32-3-14 and thus does not apply.
provisions of the CPA apply to all special statutory
proceedings except to the extent that there are specific
practice and procedure rules in conflict and expressly
prescribed by law. OCGA § 9-11-81. See Whigham v.
City of Atlanta, 262 Ga.App. 742 (1) (586 S.E.2d 412)
(2003) ("[g]enerally, the [CPA] will apply to in rem
forfeiture actions under OCGA § 32-3-1 et seq. . . .
only to the extent the [CPA] does not conflict with the
specific practice and procedures expressly prescribed by [the
in rem forfeiture statutes]") (citation omitted).
"Our Supreme Court and this court have recognized that
the requirements of the condemnation act override
all provisions of the [CPA] in conflict with the
condemnation act's special purposes." (Emphasis in
original.) Dept. of Transp. v. Defoor, 173 Ga.App.
218, 219 (325 S.E.2d 863) (1984) (physical precedent only).
Thus, the issue becomes whether Rule 4 (h) conflicts with the
special statutory provisions contained in OCGA §
OCGA § 32-3-8 nor § 32-3-14 contain any express
language regarding proof of, or return of, service. However,
OCGA § 32-3-14 clearly states that an owner has the
right to file a notice of appeal, contesting the amount of
compensation, but "not later than 30 days following the
date of the service. . . ." (Emphasis
supplied.) Accordingly, "[t]he time for filing the
notice of appeal begins to run from the date of personal
service." (Citations omitted.) Dept. of Transp. v.
Morris, 186 Ga.App. 673, 674 (368 S.E.2d 155) (1988).
And "[t]he right to appeal to a jury from a declaration
of taking has been held to be absolutely conditional upon the
filing of a timely notice of appeal in the superior
court." (Citations and punctuation omitted.)
Chambers v. Dept. of Transp., 172 Ga.App. 197 (1)
(322 S.E.2d 366) (1984). See also Lil Champ Food Stores,
Inc. v. Dept. of Transp., 230 Ga.App. 715, 716 (1) (498
S.E.2d 94) (1998). This Court has previously held that
"[g]ranting extensions of time as permitted under
certain circumstances by the [CPA] does not apply to periods
of time which are definitely fixed by other statutes."
(Citations omitted.) McClure v. Dept. of Transp.,
140 Ga.App. 564 (1) (231 S.E.2d 532) (1976).
Brydes contend that Rule 4 (h) would not extend the 30-day
response period, but merely toll it. But following
the Brydes' line of reasoning would nevertheless allow an
owner to file a notice of appeal later than 30 days from the
date of personal service, which directly contradicts OCGA
§ 32-3-14. We therefore find that Rule 4 (h) conflicts
with the special statutory provision found in OCGA §
32-3-14 and thus does not apply in condemnation proceedings
such as the one at hand. We are especially persuaded that
this result is correct given the following language found in
OCGA § 32-3-10 (a):
The proceeding described in this article being in rem, no
provision in Code Sections 32-3-8 and 32-3-9 as to service
shall be so construed as to invalidate the intent of the
condemnor or as to delay the taking of the property or
interest described in the declaration of taking and in the
petition or in any manner as to delay the progress of the
work for which the taking was made; and a substantial
compliance with the provisions for service as heretofore set
out in this article shall be deemed sufficient.
the trial court did not err in dismissing the Brydes'
notice of appeal as untimely. See Chambers, 172
Ga.App. at 197 (1) (affirming dismissal of notice of appeal
filed 37 days after ...