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Adkins v. Cobb County

The requirement in O.C.G.A. § 32-3-11 for the trial court to set a hearing on a condemnor's motion to set aside or vacate a declaration of taking within 60 days after the filing of the declaration is discretionary, and did not act as a procedural bar to the trial court's consideration of the merits of the appellants' motion to vacate.

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We granted an application for interlocutory appeal in this condemnation case to determine whether application of OCGA § 32-3-11 c1 to bar appellants’ motion to set aside or vacate a declaration of taking violates their due process rights and to consider whether that statute imposed upon appellants a responsibility to obtain a timely hearing on their motion. We conclude the statute as properly applied does not violate a condemnee’s due process rights but reverse and remand to the trial court with direction that it hold a hearing pursuant to the mandate of § 32-3-11 c because it is the duty of the trial court, not the condemnee, to schedule the required hearing.

On January 11, 2010, appellee Cobb County filed a declaration of taking seeking to condemn property owned by appellants Russell Adkins and James Whitfield as part of a road construction project. Appellants signed acknowledgments of service on March 1, 2010 and on March 31, 2010 they filed an answer alleging, inter alia, that the county was not authorized to take the property. The same day, they filed a motion to set aside, vacate, and annul the declaration of taking. A rule nisi issued and after several attempts at settlement failed, the court set a hearing for April 20, 2011.

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