Department of Transportation v. Defoor

Sognier, Judge. The sole issue before this court is the Department of Transportation’s appeal from an order of the Superior Court consolidating two condemnation proceedings instituted by DOT against one tract of land owned by appellees. It is uncontroverted that the property is one tract, with continuous borders and a connecting roadway. The apparent rationale behind the DOT’s institution of two separate condemnation proceedings lies in the irregular shape of the tract which results in the property connecting with the DOT’s construction site at two different points. We affirm the trial court’s order consolidating the two condemnation proceedings. Whether it is appropriate to consolidate two cases [219] depends upon the use of the property. See Gaines v. City of Calhoun, 42 Ga. App. 89 (2) (155 SE 214) (1930). There is some indication in the record that the entire property has a common use, and, should that be so, appellees are entitled to the consequential damages calculated as resulting to the whole of the property rather than to separate parcels. To otherwise allow two different actions to be brought regarding this one property could result in great harm and injustice to the condemnees’ substantive rights. The trial court has the authority to order consolidation under OCGA § 32-3-17.1 which provides that the judge “may . . . make such orders and give such directions as are necessary to speed the cause, and as may be consistent with justice and due process of law . . . .” (Emphasis supplied). The trial court exercised this authority in its order granting the motion for consolidation, stating that “the interests of justice and of judicial economy will be served by having a single trial for the determination of the value of the property taken in both cases and for the determination of the total consequential damages to the entire property of the condemnees remaining after the takings in both cases by reason of such takings.” (Emphasis supplied.) DOT contends that the Civil Practice Act’s consolidation rules govern here and that the trial court erred by ordering the two condemnation proceedings to be consolidated without the consent of all parties involved. We do not agree with DOT’s argument because we do not find Section 42 of the Civil Practice Act (OCGA § 9-11-42) to be the controlling law here. The Civil Practice Act specifically provides that where its requirements conflict with those of a special statutory proceeding, the latter controls: “This chapter shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, intervention, evidence, motions, summary judgment, relief from judgments, and the effect of judgments shall apply to all such proceedings.” OCGA § 9-11-81. Our Supreme Court and this court have recognized that the requirements of the condemnation act override all provisions of the Civil Practice Act in conflict with the condemnation act’s special purposes. In discussing the sufficiency of a pleading, a declaration of taking in a condemnation action, the Supreme Court stated: “Due to the special nature of condemnation cases in general, it has been held that the CPA did not apply to . . . specific proceedings under Chapter 95A-6 [present OCGA § 32-3-1 et seq.] (Cit.), although provisions of [220] the CPA may be applied if not in conflict with the condemnation act, (Cit.)” Dorsey v. Dept. of Transp., 248 Ga. 34, 36 (279 SE2d 707) (1981). (Emphasis supplied.) See Dept. of Transp. v. Forrester, 149 Ga. App. 647 (255 SE2d 115) (1979); Nodvin v. Ga. Power Co., 125 Ga. App. 821 (189 SE2d 118) (1972). In the case sub judice, a conflict exists between OCGA § 9-11-42 (a) of the Civil Practice Act and OCGA § 32-3-17.1 of the condemnation act. OCGA § 9-11-42 (a) requires the consent of all the parties before any consolidation of actions can be effectuated. The provision of the Civil Practice Act in this case conflicts with the trial court’s broad powers contained in OCGA § 32-3-17.1 to take what action is necessary in condemnation proceedings to promote justice and due process. Because of the conflict between OCGA § 9-11-42 (a) and OCGA § 32-3-17.1, the Civil Practice Act mandates that the special statutory provisions of the condemnation act control, OCGA § 9-11-81, and thus the trial court had the authority to order consolidation of the two condemnation proceedings. Decided December 5, 1984 Rehearing denied December 20, 1984 Michael J. Bowers, Attorney General, James P. Googe, Executive Assistant Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, John R. Strother, Jr., J. Matthew Dwyer, Jr., Special Assistant Attorneys General, William W. White, for appellant. Frank Love, Jr., Paul H. Anderson, Sr., Christopher G. Knighton, for appellees. There is sufficient indication in the record that the trial court properly exercised its power under OCGA § 32-3-17.1 when it consolidated the two actions involving one tract in order to promote justice and due process and avoid the miscarriage of justice. In the absence of a showing of any abuse of discretion by the trial court, we affirm. Judgment affirmed. Birdsong, P. J., Pope and Benham, JJ., concur. Beasley, J., concurs specially. McMurray, C. J., Deen, P. J., Banke, P. J., and Carley, J., dissent.