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Court of Appeals of Georgia.


No. A03A1859.

Decided: May 22, 2003

Power & Futch, Warren R. Power, Stockbridge, for appellant. David P. Brenskelle, Lawrenceville, for appellee.

Declaring a need for taking, Henry County petitioned the local superior court to condemn certain land owned by TJW Enterprises, LLLP. TJW contested the valuation, requesting that a jury determine the amount of compensation, and also moved the court under OCGA § 32-3-11 to set aside, vacate, and annul the declaration of taking.   Following an evidentiary hearing, the court denied the motion, which ruling TJW has directly appealed.   We hold that we lack jurisdiction to consider this direct appeal, since the valuation issue remains pending below and TJW did not follow the interlocutory appeal procedures.   Accordingly, we dismiss the appeal.

OCGA § 32-3-11 authorizes a condemnee to petition the superior court in a condemnation proceeding to set aside, vacate, and annul the condemnor's declaration of taking if the condemnee can show certain specified facts, such as fraud, bad faith, or the improper use of the condemnation powers.   A hearing on this nonvaluation matter takes place within a short window of time, “with the right of appeal by either party, as in other cases.”  (Emphasis supplied.)  OCGA § 32-3-11(c).  Often these petitions are the only contested issue in the condemnation proceeding, and once a final judgment is entered, a party is allowed to directly appeal the ruling on the petition.   See, e.g., Habersham Downs Homeowners' Assn. v. Dept. of Transp., 212 Ga.App. 686, 442 S.E.2d 868 (1994);  Chamlee v. Dept. of Transp., 189 Ga.App. 334, 375 S.E.2d 626 (1988);  Cox Communications v. Dept. of Transp., 178 Ga.App. 499, 343 S.E.2d 765 (1986), rev'd on other grounds, 256 Ga. 455, 349 S.E.2d 450 (1986).

 Where, however, the petition is not the only contested issue before the superior court, a ruling on the petition is not directly appealable if the other issues are still pending in the superior court.  Dept. of Transp. v. B & G Realty, 193 Ga.App. 649, 388 S.E.2d 749 (1989).   This is based on the following established principle:

Where there is a case involving multiple claims, a decision adjudicating fewer than all the claims is not a final judgment.   In such circumstances, there must be an express determination under OCGA § 9-11-54(b) or there must be compliance with the requirements of OCGA § 5-6-34(b).  Where neither of these code sections is followed, the appeal is premature and must be dismissed.

(Citations and punctuation omitted.)  Id. Thus, although the superior court may have ruled on the nonvaluation issues in a condemnation proceeding, the pendency of the valuation issue in the superior court precludes an appellate court from having jurisdiction over the appeal of the nonvaluation ruling unless the interlocutory procedures are followed.   See Fountain v. DeKalb County, 238 Ga. 14, 15, 231 S.E.2d 49 (1976);  Stafford v. Bryan County Bd. of Ed., 212 Ga.App. 6, 7, 440 S.E.2d 774 (1994);  Cook v. Ga. Power Co., 204 Ga.App. 119, 120, 418 S.E.2d 451 (1992);  Concept Capital Corp. v. DeKalb County, 172 Ga.App. 838, 325 S.E.2d 169 (1984);  Turner v. City of Nashville, 167 Ga.App. 665, 307 S.E.2d 74 (1983);  Hardy v. Ga. Power Co., 151 Ga.App. 803, 804, 261 S.E.2d 749 (1979).

 As stated in Cook, TJW “will be entitled to appeal directly and raise all issues regarding the condemnation of [its] property when the issue of just and adequate compensation is no longer pending below and all issues have become final.   See Skipper v. Dept. of Transp., 197 Ga.App. 634, 635(1a), 399 S.E.2d 538 (1990).”  (Emphasis in original.)  Cook, supra, 204 Ga.App. at 120, 418 S.E.2d 451.   At this stage, however, where issues remain pending below and the appropriate appellate procedure was not followed, the appeal must be dismissed.  B & G Realty, supra, 193 Ga.App. at 649, 388 S.E.2d 749.

Appeal dismissed.

MILLER, Judge.

SMITH, C.J., and RUFFIN, P.J., concur.

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