State legal protection offered by sovereign immunity will not unbalance the Georgia Department of Transportation after the installation of a major freeway domain allegedly flooded a Ware County’s land.
In a Tuesday ruling by the Georgia Supreme Court, the Supreme Court cleared property owner Cathy Mixon to seek damages and an injunction against the State Department of Transportation after a fair compensation provision waived sovereign immunity.
Justice Nels Peterson, Georgia Supreme Court. (Photo: John Disney / ALM)
“The Georgia Constitution generally provides that ‘private property may not be stolen or damaged for public use without proper and fair compensation,'” said the Supreme Court ruling by Justice Nels SD Peterson . “This court has long ruled that this provision removes sovereign immunity for inverse conviction claims that seek financial compensation.”
The reverse conviction refers to a lawsuit “brought by a private landowner under the provision of fair compensation claiming that private property is being taken or damaged for public purposes without trial over significant domains,” according to the Supreme Court.
In the Supreme Court’s opinion, Peterson noted that the fair compensation provision also removes sovereign immunity for injunction claims for inverse conviction.
“Difficult to anticipate”
Doug L. Gibson of Gibson & Associates. (Courtesy photo)
Douglas L. Gibson, Ware County State Court judge, represented Mixon on this matter in his capacity as an attorney with Gibson & Associates in Waycross, Georgia.
“I’m glad we’re making progress on this case,” said Gibson. “What I thought from the start is that it just can’t be that the state is showering you with water, turning your commercial property into wetlands, and you just can’t stop it. Now you can stop it. “
Mixon’s lawsuit alleged that her property had been reduced in value by “periodic flooding, drainage and erosion problems’ within and around ” her property” after a GDOT road expansion project along Victory Drive diverted water to her property.
Since the floods were caused by the failure of GDOT to maintain the stormwater drainage system, they complained that the damage caused amounted to the expropriation of their property without “fair and fair compensation” in violation of the Georgia Constitution.
(Photo: John Disney / ALM)
With the exception of Presiding Judge Michael Boggs, who had been expelled from the trial, the Supreme Court unanimously agreed.
“We recognize that it can sometimes be difficult to foresee in advance that a particular measure against public property will constitute nuisance equivalent to constitutional damage to private property,” said the Supreme Court ruling. “But the provision on fair compensation does not contain any exception for difficult to foresee claims or damage.”
On behalf of Mixon, Gibson sought “fair and equitable compensation” for the alleged kidnapping, as well as additional monetary damage, attorney fees and an injunction that will prevent “future harassment and constant violation”.
“This is a major case,” said Gibson. “It’s a topic that has been simmering for a long time. It had to be resolved, and I think the Supreme Court [of Georgia] sketched out the background excellently and came to the only decision that could really be made. “
Dismissal refused
Georgia Attorney General Chris Carr (Courtesy photo)
Represented by the Georgia Attorney General, GDOT denied Mixon’s allegations.
The state agency filed a motion to dismiss on grounds of state immunity, but failed an interim appeal in both the court and the Georgia Court of Appeals.
Like the lower courts, the Georgia Supreme Court ruled against the state Department of Transportation for failing to produce sufficient evidence to undo the waiver of the fair compensation provision.
“There is no indication in the records that GDOT made any compensation to Mixon for this alleged ingestion; In fact, her complaint is seeking monetary damages, ”Peterson wrote. “Neither is there any evidence that GDOT has resorted to any legal process to exercise its pre-eminent domain authority over Mixon’s property.”
“Viable from earnings”
Although the Supreme Court ruling found that the sovereign immunity did not interfere with Mixon’s claim, Peterson cautioned lawyers not to interpret the opinion as an affirmation of merit.
“We do not believe that Mixon is actually entitled to injunctions,” wrote Peterson. “A waiver of sovereign immunity says nothing about whether a claim is viable in terms of the matter.”
Peterson noted in the statement that Mixon’s attorney Gibson conceded during the hearing that money could sane his client while arguing that she was not limited to that appeal.
“While Mixon seeks a permanent restraining order ‘to prevent future harassment and constant trespassing of her property’, her complaint does not contain an allegation that her claim for damages does not provide her with an adequate remedy for such a tort.”
Continue reading:
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