Duncan v. Department of Transportation

Underwood, Judge. In this condemnation proceeding the recovery of condemnees’ expenses of litigation and attorney fees was recommended by the jury and awarded by the court’s final judgment pursuant to White v. Ga. Power Co., 237 Ga. 341 (227 SE2d 385) (1976). Approximately two weeks later White was overruled by DeKalb County v. Trustees, 242 Ga. 707 (251 SE2d 243) (1978), and thereafter the court vacated the judgment for those items in ruling upon condemnor’s motion for new trial. Condemnees appeal, and we affirm pursuant to the Supreme Court’s ruling in D. O. T. v. Kendricks, 244 Ga. 613 (1979). While condemnees contend that the proper rationale for the Kendricks rule is not as stated in its majority opinion but is rather to be found in the special concurrence thereto, and that under that view Kendricks would not be controlling here, we believe the more prudent course for this court to follow is to presume that the Supreme Court’s failure to adopt that rationale in the majority opinion, over protest of the minority that "[t]he majority fails to address the issue here on appeal,” is tantamount to a rejection of it. We do likewise. Judgment affirmed. McMurray P. J., and Banke, J., concur. Jay M. Sawilowsky, for appellants. Arthur K. Bolton, Attorney General, Thomas R. Burnside, Jr., for appellee.