SHIV ABAN, INC. v. GEORGIA DEPARTMENT OF TRANSPORTATION; and vice versa.
A15A2013, A15A2014
Court of Appeals of Georgia
March 29, 2016
Rehearing Denied April 14, 2016
336 Ga. App. 804 | 784 SE2d 134
BRANCH, Judge.
The trial court found it unnecessary to address whether as a matter of law the evidence demanded finding the motorist‘s own negligence constituted the sole proximate cause of the collision. But where a motorist drives hundreds of feet completely blinded by sunlight, I think the only safe conclusion is the motorist utterly failed to exercise ordinary care for his own safety, much less the safety of others. Under
Because the majority opinion is wrong for as many reasons as the trial court‘s decision is right, I respectfully dissent from the reversal of the trial court‘s grant of summary judgment for the appellee.
DECIDED MARCH 16, 2016 —
RECONSIDERATION DENIED APRIL 14, 2016.
Ayerbe & Cowart, Paul R. Ayerbe, for appellant.
Lueder, Larkin & Hunter, Kevin T. Shires, Blair J. Cash, for appellees.
A15A2013, A15A2014. SHIV ABAN, INC. v. GEORGIA DEPARTMENT OF TRANSPORTATION; and vice versa. (784 SE2d 134)
BRANCH, Judge.
Shiv Aban, Inc., appeals
The parties agree to the essential facts. On September 12, 2013, the DOT petitioned to condemn property of Shiv Aban and deposited $430,000 into the registry of the Superior Court of Catoosa County as its estimate of just and adequate compensation for the taking of the subject property. The DOT attached to its complaint an affidavit of John Simshauser dated December 4, 2012, in support of the estimate. In the affidavit, Simshauser states that he is giving his appraisal in connection with the condemnation proceedings for the subject parcel and that “the estimated just and adequate compensation” for the parcel is $430,000. Shiv Aban timely filed a notice of appeal for a jury trial in the superior court and petitioned for an interlocutory hearing before a board of assessors on the sufficiency of the amount of compensation paid into court. Following a two-day hearing, the board of assessors determined that Shiv Aban was entitled to total compensation of $1,700,000 as just and adequate compensation for all property and rights taken by the DOT, and the award was approved by an order of the trial court dated August 5, 2014. On August 12, 2014, the DOT therefore deposited into the registry of the court the balance due of $1.27 million. Shiv Aban dismissed its notice of appeal for a jury trial and stated its desire to accept the award of the assessors. The DOT likewise did not further appeal the assessor‘s award.
The DOT then moved that the assessors’ award be made the final judgment of the court. Shiv Aban filed a cross-motion contending that it was entitled to prejudgment interest on the $1.27 million payment from the date of the taking through August 12, 2014, the date that sum was deposited into the registry of the court. Following a hearing, the trial court entered an order and judgment granting DOT‘s motion for a final judgment and denying Shiv Aban‘s cross-motion for prejudgment interest. In Case No. A15A2013, Shiv Aban appeals this ruling.
Shiv Aban also filed a motion for attorney fees and expenses of litigation in the superior court, arguing that under
Case No. A15A2013
1. Whether Shiv Aban was entitled to prejudgment interest on the $1.27 million payment presents a question of statutory interpretation, which we review de novo. Expedia, Inc. v. City of Columbus, 285 Ga. 684, 689 (4) (681 SE2d 122) (2009); Wolfe v. Ga. Dept. of Driver Svcs., 330 Ga. App. 552, 553 (768 SE2d 528) (2015).
When interpreting statutes, “the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”
The context of Shiv Aban‘s claim for interest includes the statutes governing the DOT‘s suit for condemnation. The DOT filed suit under
allows the government to take title immediately by filing a petition and declaration of taking and paying into the court registry just and adequate compensation as determined by its own appraisal. See
OCGA §§ 32-3-6 to32-3-7 . There is no pre-taking notice or opportunity to be heard on the compensation issue. SeeOCGA §§ 32-3-7 (a) ,32-3-13 (a) . The property owner can, however, obtain a de novo determination [of the property‘s value] by a jury after the fact. SeeOCGA §§ 32-3-14 ,32-3-16 .
Windsor v. City of Atlanta, 287 Ga. 334, 335, n. 1 (695 SE2d 576) (2010).2 Here, because Shiv Aban was dissatisfied with the amount of compensation the DOT paid into court, Shiv Aban filed a notice of appeal demanding a trial by jury and sought an interlocutory hearing under
As required by
the award of just and adequate compensation, Shiv Aban gave notice of intent to dismiss its appeal for a jury trial in the superior court and stated its desire to “accept the award of the Assessors.” Finally, the same statute provides that once Shiv Aban notified the court of its intent to dismiss its appeal, the interlocutory award became “the final judgment in the proceeding” and “[it] shall not be vacated or modified.”
The DOT and Shiv Aban both then requested a final judgment from the superior court, and, relying on
After just and adequate compensation has been ascertained and established by judgment, the judgment shall include, as part of the just and adequate compensation awarded, interest from the date of taking to the date of payment pursuant to final judgment at the rate of 7 percent per annum on the amount awarded by final judgment as the value of the property as of the date of taking[.]
Several aspects of the procedure for a declaration of taking condemnation are relevant to our analysis. First, in the event a condemnee does not appeal the condemnor‘s original estimate of the just and adequate compensation as paid into court, the superior court is required, upon payment of costs, to enter judgment in favor of the condemnee for the sum of money deposited and the case shall be “transferred . . . to the closed docket.”
Next, we agree with the trial court that
Looking next at
a jury verdict on the property at issue;6 subsection (b) generally pertains to the entry of a judgment following a jury verdict.7 And subsection (b) is linked directly with subsection (c) in that it provides, as a part of rendering a judgment, that the court “shall” award “interest as provided in subsection (c) of this Code section.”
Based on a plain reading of all pertinent statutes, which must be construed together,9 we hold that
a case such as this where a condemnee accepts an interlocutory ruling by
The trial court and the DOT contend that the fact that the legislature did not include an express provision for prejudgment interest in
[A] statute is presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. It is therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and its meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.
Retention Alternatives v. Hayward, 285 Ga. 437, 440 (2) (678 SE2d 877) (2009) (citation omitted). In this case, at the time the current version of that statute was enacted,
Also, the fact that
Because the interlocutory funds are quickly and readily available to the Condemnee, the legislature did not make any provision for payment of interest on additional compensation awarded to a Condemnee by a Board of Assessors.
But additional compensation awarded via the interlocutory procedure is available to the condemnee regardless of whether it withdraws its appeal or proceeds with a jury trial. See
The DOT also points to the clause of
After just and adequate compensation has been ascertained and established by judgment, the judgment shall include . . . interest from the date of taking . . . ; but interest shall not be allowed on so much thereof as shall have been paid into the court and was subject to withdrawal by the condemnee without the requirement of posting a bond as required by Code Section 32-3-15.
But again, this provision sheds no light on the fundamental question before us because it is equally applicable to cases where the condemnee accepts the interlocutory award and dismisses the appeal for a jury trial and cases where the condemnee proceeds to a jury trial; nothing in
Finally, our interpretation of the relevant statutes is consistent with a traditional understanding of when interest should be awarded. Under the declaration-of-taking method of condemnation, once the original payment is made, the taking has occurred.
value of its property starting that day. See Brooks v. Dept. of Transp., 254 Ga. 60, 61 (1) (a) (327 SE2d 175) (1985) (prejudgment interest compensates the condemnee for the use of funds generated in a condemnation action). That is the case here. On September 12, 2013, the DOT took Shiv Aban‘s property and placed only $430,000 into the registry of the court. The proceedings ultimately showed that the DOT should have paid $1.7 million into court that day. Thus, from that day through the day
For the above reasons, we hold that the trial court erred by failing to award prejudgment interest on $1.27 million from the date of the taking through the date that amount was deposited into court. We therefore reverse the judgment in Case No. A15A2013 and remand with direction to reenter the judgment with prejudgment interest consistent with this opinion.
Case No. A15A2014
2. In the cross-appeal, the DOT contends the trial court erred by awarding attorney fees and expenses in favor of Shiv Aban. The trial court found that Shiv Aban was “entitled to recover under
Subsection (a) of
abuse of discretion.” Fox v. City of Cumming, 298 Ga. App. 134, 135 (679 SE2d 365) (2009) (footnote omitted).
The essential factual findings of the trial court regarding the fee award are that although the DOT made its initial deposit of $430,000 on September 12, 2013, in connection with its declaration of taking based on an appraisal of Shiv Aban‘s property by John Simshauser, a qualified and licensed real estate appraiser, that appraisal was fundamentally flawed. Shiv Aban‘s property, a motel, was extensively damaged by a tornado in April 2011 and the motel ceased doing business, but Shiv Aban eventually spent approximately $857,000 restoring the property, and the motel reopened in June 2012, months before the condemnation. Yet Simshauser‘s appraisal, which allegedly provided a valuation as of May 20, 2012, was in fact based on photographs dated November 2011, all of which showed a tornado-damaged motel. And Simshauser‘s affidavit of value for the motel, based on the appraisal and filed in support of the declaration of taking, was dated December 4, 2012, ten months before the date of the taking.
Thus, the court concluded, the DOT‘s basis for its original estimated value of Shiv Aban‘s property was not adjusted to the date of the taking. Although the DOT presented a different appraisal by a different appraiser (Lamar Pinson) at the interlocutory hearing on the adequacy of the DOT‘s original estimate showing the value as of the date of the taking to be $1.25 million, the DOT presented “no credible explanation . . . to account for the discrepancy of $820,000.00 between the Condemnor‘s deposit on the date of taking . . . and that of [the DOT‘s] only testifying witness [at that hearing], Lamar Pinson.” The trial court therefore held:
Given the [DOT‘s] failure to time adjust its estimate of fair, just, and adequate compensation in its initial estimate of damages and to account for [Shiv Aban‘s] reconstruction of its storm damaged motel for $857,000, [the DOT‘s] deposit of $430,000 evidences a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a Court would accept the asserted claim or position.
The court further concluded that Shiv Aban incurred reasonable and necessary attorney fees and expenses of litigation in order “to achieve a recovery of fair, just and adequate
(a) The DOT first contends the trial court erred as a matter of law because it relied on the DOT‘s pre-litigation activities to authorize the award of fees. It contends that because none of Simshauser‘s actions regarding his appraisal of the property occurred during the litigation, the trial court erred by basing its award on those actions. The DOT further contends that under the circumstances, Shiv Aban‘s avenue for relief regarding Simshauser‘s appraisal was
The Supreme Court of Georgia has confirmed that
We agree with Shiv Aban and the trial court that Shiv Aban does not complain about the DOT‘s pre-litigation activities nor about how Simshauser developed his appraisal, which was a pre-litigation activity. Rather, Shiv Aban complains about DOT‘s use of a legally inapplicable appraisal in its declaration of taking, which shows that it took a position in the litigation itself that was not factually or legally supported, i.e., it based its condemnation action on a fundamentally flawed appraisal. The Sevani case is distinguishable on the facts. The opinion in Sevani makes plain that the condemnee sought fees under
We further agree with Shiv Aban that it did not waive its claim of fees under
(b) The DOT next contends the trial court erred because Shiv Aban failed to present any evidence of improper conduct, a lack of substantial justification, or an intent to delay or harass on the part of the DOT during the course of the litigation. As stated above, the trial court awarded fees under both
Shiv Aban presented some evidence to show that the DOT‘s initial estimate was so flawed that it could not be reasonably believed that the trial court would accept the position. Shiv Aban presented evidence to show that the initial estimate was based on an appraisal conducted in May 2012 that stated the value of the property as of May 20, 2012, approximately sixteen months prior to the date of taking; the appraisal was dated December 4, 2012, approximately nine months prior to the taking; it was based on photographs taken of a storm damaged and nonoperational motel; and it failed to take into account that Shiv Aban spent approximately $857,000 to repair the motel and that the motel was operational months before the date of the taking. Thus, the trial court did not err by finding that Shiv Aban was entitled to fees under
55 (2) (“[B]ecause DOT‘s initial deposit was based upon a valid estimate made by a qualified appraiser, it cannot be said that its position was void of any justiciable fact, such that it could not be reasonably believed that a court would accept it.“) (citation, punctuation and footnote omitted).
It is true that the DOT‘s original estimate is only that, an estimate and that the declaration-of-taking procedure allows the DOT to present a different expert at the interlocutory hearing. Morrison v. Dept. of Transp., 166 Ga. App. 144, 145 (303 SE2d 501) (1983) (“DOT was not bound by its original estimate but could present evidence de novo as to fair market value and consequential damages“); Aiken v. Dept. of Transp., 171 Ga. App. 154, 155 (1) (319 SE2d 58) (1984). Even so, a condemnor is not allowed to file court pleadings that violate
Because the trial court‘s award of fees is affirmed under
(c) Finally, the DOT contends the trial court erred as a matter of law in determining the amount of the award. It argues that the trial court impermissibly awarded attorney fees on a lump sum contingent fee basis and that it failed to apportion the fees and expenses between sanctionable acts and those deemed proper.
“[A]n award of attorney fees is to be determined upon evidence of the reasonable value of the professional services which underlie the claim for attorney fees.” Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 483 (3) (a) (759 SE2d 804) (2014) (citation and punctuation omitted). In Couch, the Supreme Court held that a court may award fees based on a contingent fee agreement, but “evidence of the existence of a contingent fee contract, without more, is not sufficient to support the award of attorney fees.” Id. (citation and punctuation omitted). The party must present “proof of the value” of the services for which fees are sought. Id. Thus, although “[a] court may consider a contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney fees,” to do so
the party must show that the contingency fee percentage was a usual or customary fee for such case and that the contingency
fee was a valid indicator of the value of the professional services rendered. In addition, the party seeking fees must also introduce evidence of hours, rates, or some other indication of the value of the professional services actually rendered.
Id. (citation omitted), quoting Brock Built, LLC v. Blake, 316 Ga. App. 710, 714-715 (2) (b) (730 SE2d 180) (2012). In addition, “the trial court must limit the fee[ ] award to those fees incurred because of the sanctionable conduct.” The Gibson Law Firm v. Miller Built Homes, 327 Ga. App. 688, 691 (3) (761 SE2d 95) (2014) (punctuation omitted) (failure to apportion award of fees based on the party‘s sanctionable conduct is error).
Here, the trial court heard evidence regarding the legal experience of the attorneys and other employees of Shiv Aban‘s counsel, including that lead counsel had 50 years of experience handling condemnation litigation on behalf of condemnors and condemnees; that the firm usually charged a flat rate of 40 percent of any award that exceeded the highest offer obtained by the condemnee from the condemnor; that most condemnees prefer a contingency fee basis and do not want to pay an hourly fee; that in this case, counsel offered a contingency fee on a sliding scale that was less than 40 percent14 as a result of negotiation with Shiv Aban; that the firm put in 510 to 515 total hours on the entire case through the day of the fee hearing; that the hourly rates of the attorneys and other professionals ranged from $350 to $165 per hour; that the rates were reasonable for the north Georgia area based on the experience and services provided; that if the firm had billed Shiv Aban based on those rates, the bill for attorney fees would have been approximately $124,000; that the firm incurred $24,016.19 in litigation expenses associated with all their work; that Shiv Aban only sought fees against the DOT based on the difference between the highest offer that it received from the DOT and the DOT‘s $1.25 million appraisal; that under the contingent fee agreement, the amount of fees sought against the DOT was approximately $236,000 plus the total amount of litigation expenses; that Shiv Aban paid fees to its attorneys above and beyond $236,000 in accordance with the contingency fee agreement; and that the firm risked having to try the case twice if the DOT had appealed the assessors’ award.
In its order granting the motion for fees and expenses, the trial court held that Shiv Aban had
self-limited its claim for attorney [ ] fees, and has not claimed attorney[ ] fees and expenses of litigation based on its full recovery of $1,700,000.00 . . . . Instead [Shiv Aban] asserts a
claim for contingent attorney[ ] fees only on sums in excess of $503,684 and less than $1,250,000.
The court further found that Shiv Aban had negotiated a fee contract with its counsel at a rate less than counsel‘s standard, 40 percent flat rate; that counsel‘s hourly rates were reasonable; and that Shiv Aban‘s counsel expended over 510 hours, “which amounts to more than $123,500” at those rates. The court concluded as follows:
Considering all factors, the Court finds that a risk premium of two times the hourly rate to be a reasonable parameter for this condemnation case. As such, the Court finds . . . that the actual contingent fee claimed of $236,879 (31%) is reasonable.
With one exception, we hold that the DOT‘s assertions of error with regard to the trial court‘s award are without merit.
First, as shown above, the trial court was authorized to make an award based on a contingent fee agreement. Following Couch, the court received evidence regarding the reasonableness of the fees, including that the contingent fee percentage negotiated by Shiv Aban was less than that normally charged by Shiv Aban‘s attorneys for similar work. The court also held that the normal hourly rates that the attorneys for Shiv Aban charged were reasonable based on the experience of each person involved. The court then compared
Second, the trial court apportioned the fees incurred between those associated with the DOT‘s improper conduct and those that were not. See Fedina v. Larichev, 322 Ga. App. 76, 81 (5) (744 SE2d 72) (2013) (“[I]n cases involving
With regard to litigation expenses, however, we find no evidence of any apportionment. Unlike the attorney fee award, Shiv Aban was awarded all of the litigation expenses incurred by its attorneys. Because the trial court failed to make any apportionment whatsoever regarding those expenses, we vacate that portion of the award and remand with direction to apportion those expenses and to award only those associated with the DOT‘s sanctionable conduct.
Judgment reversed and case remanded with direction in Case No. A15A2013. Judgment affirmed in part and vacated in part, and case remanded with direction in Case No. A15A2014. Andrews, P. J., and Miller, P. J., concur.
DECIDED MARCH 29, 2016 —
RECONSIDERATIONS DENIED APRIL 14, 2016
Coppedge & Associates, Warren N. Coppedge, Jr., Daniel H. Laird III, Stephen Michmerhuizen, for appellant.
Samuel S. Olens, Attorney General, Mary Jo Volkert, Senior Assistant Attorney General, Henry C. Tharpe, Jr., Anne W. Sapp, Assistant Attorneys General, for appellee.
Notes
Upon the application of the party or parties in interest at any time before a jury verdict on the appeal, the court shall order that the additional money deposited in court be paid forthwith to the parties found to be entitled thereto; provided, however, that any party or parties receiving any payment of any amount paid into court pursuant to an interlocutory award shall, before receiving such payment, file in the case a bond in the amount of such payment conditioned for the repayment of any amount so received by such party which may be in excess of the amount awarded by the jury upon the trial of the appeal.
If no appeal is filed as provided for in Code Section 32-3-14, the condemnor shall, at the next term of the superior court convening not earlier than 30 days subsequent to the date of service, as provided for in Code Sections 32-3-8 and 32-3-9, or at any time thereafter, pay all accrued court costs in the case to the clerk of the superior court in which the same is pending, at which time the judge of the superior court shall enter judgment in favor of the condemnee and against the condemnor for the sum of money deposited by the condemnor with the declaration of taking. If such sum has been withdrawn from the court by the condemnee as provided for in Code Section 32-3-12, the clerk of the superior court shall mark such judgment satisfied; and if the condemnee has not withdrawn such sum the clerk shall immediately apply the same to the payment of the judgment and either transmit the same to the condemnee or cause the condemnee to be notified that he, the clerk, holds the same subject to the demand of the condemnee.
In any event, the case shall be transferred, under the conditions set out in this Code section, to the closed docket.
(a) The verdict of the jury shall have respect to the lands described in the declaration of taking as set forth in Code Section 32-3-6, or such interest therein as may be described in said declaration, or to any separate claim against the property or interest therein as may be ordered and may be molded under the direction of the court so as to do complete justice and avoid confusion of interest. The court shall give such direction as to the disposition of the fund as shall be proper according to the rights of the several respondents.
(b) After the verdict of the jury, the court shall, in instances where no motion for new trial or notice of appeal is filed within the time provided for by law or where such verdict has been affirmed by a proper appellate court and the remittitur from such court has been made the judgment of the superior court, enter judgment in favor of the condemnee and against the condemnor in the amount of such verdict, together with the accrued court costs, which judgment shall be immediately credited with the sum of money deposited by the condemnor with the declaration of taking and which shall bear interest as provided in subsection (c) of this Code section; and, upon the failure or refusal of the condemnor immediately to deposit such increase in such sum into the registry of the court, as well as the accrued court costs, it shall be the duty of said clerk to issue execution therefor.
Upon the filing of the declaration of taking and the deposit into court, which deposit shall be made at the time the declaration of taking is filed to the use of the persons entitled thereto, of the sum of money estimated in the declaration by the condemning authority to be just compensation, title to the property in fee simple absolute or such lesser interest as is specified in the declaration shall vest in the condemnor; the land shall be deemed to be condemned and taken for the use of the condemnor; and the right to just compensation for the same shall vest in the persons entitled thereto.