Department of Transportation v. Ross , 152 Ga. App. 433 ( 1979 )

Shulman, Judge.

This is the second appearance of this case in this court. See D.O.T. v. Ross, 148 Ga. App. 256 (251 SE2d 141). On remand the trial court (pursuant to a reservation of jurisdiction) entered judgment awarding an additional $5,000 for attorney fees incurred by the condemnee subsequent to verdict and judgment. The sole issue in this appeal is the propriety of the judgment awarding additional attorney fees in light of DeKalb County v. Trustees &c. Elks, 242 Ga. 707 (251 SE2d 243), which, in overruling the then prevailing contrary rule, held that attorney fees are no longer an authorized element of just and adequate compensation in eminent domain cases. (DeKalb County v. Trustees &c. Elks, supra, became effective one day prior to the entry of final judgment awarding the additional, attorney fees in this case. See Radford v. State, 238 Ga. 532 (233 SE2d 785)). See generally 50 ALR2d 1386, § 4. On appeal, we reverse.

Argued April 3,1979 — Decided November 6, 1979 — Rehearing denied November 21, 1979 — Arthur K. Bolton, Attorney General, William Joy, Assistant Attorney General, for appellant. Forrest L. Champion, Roy D. Moultrie, for appellees.

In D.O.T. v. Kendricks, 244 Ga. 613 (1979), the Supreme Court addressed an issue which we deem dispositive of this case. There, the Supreme Court held that the right to attorney fees as an element of just and adequate compensation is not a vested right that, by reason of being vested, is immune to impairment by a change in decisional law. Thus, pretermitting whether the asserted right of the condemnee to additional attorney fees for post judgment costs may be an element of just and adequate compensation when an award of attorney fees is otherwise proper, the award of additional attorney fees in this case was not authorized and must be reversed.

Judgment reversed.

Deen, C. J., and McMurray, P. J., concur.