author: Branch, Judge.

text:
    A15A2013, A15A2014.
    SHIV ABAN, INC. v. GEORGIA DEPARTMENT OF TRANSPORTATION; and vice versa.
    (784 SE2d 134)
   Branch, Judge.

Shiv Aban, Inc., appeals a condemnation award in its favor on the ground that the award failed to include prejudgment interest on part of the award. The Department of Transportation (the “DOT”) cross-appeals an award of attorney fees and litigation expenses in favor of Shiv Aban. For the reasons that follow, we find that the trial court erred by not awarding prejudgment interest, that the award of attorney fees was proper, but that the award of litigation expenses must be vacated and the case remanded.

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 OCGA § 9-15-14, it was entitled to fees and expenses on the ground that the DOT’s only evidence offered at the assessors’ hearing — an appraisal prepared by Lamar Pinson showing a value of $1.25 million as of the date of the taking — established that the subject property was worth at least that amount, not $430,000, and that the DOT’s original estimate of value was not supported by any evidence. In support, Shiv Aban produced evidence showing that Simshauser’s affidavit of value was based on a determination of value as of May 20, 2012, approximately 16 months before the date of the taking, and that the valuation was based on pictures of a tornado-damaged motel rather than the motel as subsequently repaired, at a cost of over $857,000, months prior to the condemnation. Shiv Aban had engaged its attorneys on a contingent fee and expenses basis, and it asked for its attorney fees and expenses relevant to the difference between what the DOT initially offered and the amount the DOT’s own evidence showed as the value of the subject property at the time of the taking, i.e., $1.25 million. Following a hearing, the superior court found that “no credible explanation has been presented to account for the discrepancy of $820,000.00 between the [DOT’s] deposit on the date of taking... and that of [the DOT’s] only testifying witness, Lamar Pinson.” The court further found that Shiv Aban’s claim for attorney fees was not rooted in a mere difference of opinion among experts but rather that, under the circumstances, “it could not reasonably be believed that a Court would accept the [DOT’s initial claim of value] .’’Accordingly, the court granted Shiv Aban’s request for attorney fees of $236,879 and expenses in the amount of $24,016.19. In Case No. A15A2014, the DOT cross-appeals this ruling.

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.” OCGA § 1-3-1 (a). Nevertheless, when construing a statute, “we must presume that the General Assembly meant what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted). Thus if the language of the statute “is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003) (citation omitted). Where terms of art are not involved, we look to the common and customary usages of the words and their context. Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 SE2d 688) (2015). “For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.” Id. (citation and punctuation omitted). Finally, eminent domain statutes must be strictly construed in favor of the private landowner. Threatt v. Forsyth County, 250 Ga. App. 838, 840 (1) (a) (552 SE2d 123) (2001); see also Thomas v. City of Cairo, 206 Ga. 336, 337 (57 SE2d 192) (1950).

The context of Shiv Aban’s claim for interest includes the statutes governing the DOT’s suit for condemnation. The DOT filed suit under OCGA §§ 32-3-4 through 32-3-20, thereby choosing the “declaration of taking” method of condemnation to acquire the subject property, which is available when property is sought for public roads or public transportation. The declaration-of-taking method

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 to 32-3-7. There is no pre-taking notice or opportunity to be heard on the compensation issue. See OCGA §§ 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. See OCGA §§ 32-3-14, 32-3-16.

Windsor v. City of Atlanta, 287 Ga. 334, 335, n. 1 (695 SE2d 576) (2010). 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 OCGA § 32-3-15 on the issue of whether the amount the DOT deposited into court as just and adequate compensation was sufficient.

As required by OCGA § 32-3-15, which sets forth the rules for interlocutory hearings, the court then appointed a board of assessors to determine whether the DOT should “be required to deposit any additional amount as estimated compensation” and to “make an interlocutoryawardbaseduponsuchdetermination.”OCGA § 32-3-15 (b). Once the court approved the interlocutory award, the court, as required, directed that the DOT pay the additional amount into court. OCGA § 32-3-15 (c). Thus, the DOT paid $1.27 million into the registry of the court on August 12, 2014, exactly 11 months after the DOT’s initial payment of $430,000. Now satisfied with the amount of 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.” OCGA § 32-3-15 (g).

The DOT and Shiv Aban both then requested a final judgment from the superior court, and, relying on OCGA § 32-3-19 (c), Shiv Aban requested that the judgment include seven percent interest on the $1.27 million payment from the date of the taking to the date the DOT made that payment. That Code section provides in relevant part:

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 takingf]

OCGA § 32-3-19 (c) (emphasis supplied). OnApril 23, 2015, the trial court entered a final judgment in the amount determined by the assessors, and it denied Shiv Aban’s request for prejudgment interest. The court held that because OCGA § 32-3-19 (a) and (b) specifically reference a “verdict of the jury,” OCGA § 32-3-19 (c) was applicable only to a judgment following a jury verdict and not to a judgment following an interlocutory award by the assessors. The court also relied on the fact that OCGA § 32-3-15, the Code section dictating the procedure for an interlocutory hearing, does not expressly provide for interest on a judgment rendered on an assessors’ award when a condemnee is satisfied with that award and that because it was amended more recently than OCGA § 32-3-19, OCGA § 32-3-15 constitutes the legislature’s final say on the matter.

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.” OCGA § 32-3-13 (b), (c). This Code section further provides that nothing contained therein “shall be construed as in any way affecting the title acquired by the condemnor by virtue of the declaration of taking[.]” OCGA § 32-3-13 (d). This rule reiterates an underlying central theme to the declaration-of-taking procedure whereby the government takes title immediately upon payment of the estimated value of the property.

Next, we agree with the trial court that OCGA § 32-3-15, which states the procedure for interlocutory hearings by assessors, does not expressly provide for prejudgment interest. It also does not refer to OCGA § 32-3-19 (c), the interest calculation provision at issue. Instead, OCGA § 32-3-15 (g) provides that in a case such as the present case, where the condemnee is satisfied with the assessors’ decision, the assessors’ award “shall become the final judgment in the proceeding and shall not be vacated or modified.” Nevertheless, OCGA § 32-3-15 does not include the language found in OCGA § 32-3-13 (d) transferring the case to the closed docket nor that nothing provided in that Code section shall affect the title acquired by the condemnor.

Looking next at OCGA § 32-3-19 as a whole, it is clear that subsections (a) and (b) of that Code section both expressly pertain only to jury verdicts: subsection (a) generally pertains to the effect of a jury verdict on the property at issue; subsection (b) generally pertains to the entry of a judgment following a jury verdict. 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.” OCGA § 32-3-19 (b). Thus, subsection (b) makes plain that prejudgment interest under subsection (c) is to be awarded following jury verdicts, which necessarily includes cases where the condemnee sought an interlocutory order but, being dissatisfied with the result, maintained its appeal and sought a jury trial. Even so, subsection (c) states that it applies “[a]fter just and adequate compensation has been ascertained and established by judgment” (Emphasis supplied.) And OCGA § 32-3-15 provides that such a judgment is to be entered following an interlocutory award accepted by the condemnee. Thus, on its face, OCGA § 32-3-19 (c) pertains to all judgments establishing just and adequate compensation, i.e., judgments following interlocutory awards as well as judgments following jury awards. Furthermore, as in OCGA § 32-3-13 but unlike OCGA § 32-3-15, the final subsection of OCGA § 32-3-19 provides that once a final judgment with interest has been entered “the case shall be transferred... to the closed docket” and that nothing provided therein shall affect the title acquired by the condemnor. See OCGA § 32-3-19.

Based on a plain reading of all pertinent statutes, which must be construed together, we hold that OCGA § 32-3-19 (c) is applicable in a case such as this where a condemnee accepts an interlocutory ruling by the assessors and the superior court enters a final judgment following a condemnee’s dismissal of an appeal for a jury trial under OCGA § 32-3-15. First, OCGA § 32-3-19 (c), unlike subsections (a) and (b), does not expressly limit itself to final judgments following a jury verdict. And OCGA § 32-3-15 is one method available for establishing such a judgment. Second, although OCGA §§ 32-3-13 and 32-3-19 provide for a case to be transferred to the closed docket, OCGA § 32-3-15 does not. Similarly, although OCGA §§ 32-3-13 and 32-3-19 include language regarding a judgment’s effect on the title acquired by the condemnor by virtue of the declaration of taking, OCGA § 32-3-15 does not. Thus, both OCGA §§ 32-3-13 and 32-3-19 are the only means provided by the legislature under the declaration-of-taking method of condemnation that provide for transfer of the case to the closed docket. So, even when a condemnee, such as Shiv Aban, elects to accept the assessors’ award and a final judgment is accordingly entered under OCGA § 32-3-15, the case is not ready to be sent to the closed docket or for the warning about the effect of any proceedings on the condemnor’s title. Rather, OCGA § 32-3-19 (c), (d) and (e) are still applicable to the termination of a case that has reached final judgment under OCGA § 32-3-15.

The trial court and the DOT contend that the fact that the legislature did not include an express provision for prejudgment interest in OCGA § 32-3-15 as amended in 1998 shows that the legislature did not intend for interest to be awarded on interlocutory orders that become final judgments under that Code section. But the fact that the current OCGA § 32-3-15 was modified after OCGA § 32-3-19 was enacted only reinforces the conclusions we reach above. See Ga. L. 1998, p. 1539, § 12 (amending OCGA § 32-3-15 in its entirety); compare Ga. L. 1973, p. 947, § 1 (original enactment of chapter pertaining to declaration-of-taking method of condemnation). It is true that “[w]here there is a conflict between legislative acts, the later in time will control as it is presumed to be the last expression of legislative will.” Patrick v. Head, 262 Ga. 654, 655 (3) (424 SE2d 615) (1993) (citation omitted). But here, we find no conflict between OCGA § 32-3-15 as amended and OCGA § 32-3-19 once we apply the presumption that the legislature is presumed to act with full knowledge of the existing state of the law:

[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, OCGA § 32-3-19 (c) already stated that interest should be awarded “[a]fter just and adequate compensation has been ascertained and established by judgment.” (Emphasis supplied.) And OCGA § 32-3-15 provides a procedure for establishing such a judgment: an interlocutory hearing is held to determine whether “just and adequate compensation is sufficient”; and, if the condemnee dismisses its appeal of a jury trial, the interlocutory award becomes “the final judgment in the proceeding.” Yet, upon amending OCGA § 32-3-15, the legislature did not amend OCGA § 32-3-19 (c) to state that it only applied to judgments on jury verdicts. Further, at the time that OCGA § 32-3-15 was amended, the legislature did not include the provisions found in OCGA §§ 32-3-13 and 32-3-19 that provide for transferring the case to the “closed docket” nor reiterate that such a judgment has no effect on title to the property, thereby indicating that further proceedings were required, such as OCGA § 32-3-19 (c), (d), and (e). Thus, the amendment to OCGA § 32-3-15 dovetails with the preexisting scheme of the entire declaration-of-taking procedure.

Also, the fact that OCGA § 32-3-15 (g) states that an “interlocutory award... shall not be vacated or modified,” when read in context with the entire declaration-of-taking condemnation procedure, simply shows that the interlocutory award on “just and adequate compensation” may not be altered. Prejudgment interest, however, is not part of the “just and adequate compensation” determined in a condemnation proceeding but rather an addition to that sum. Dept. of Transp. v. Consolidated Equities Corp., 181 Ga. App. 672, 677 (353 SE2d 603) (1987) (holding that post-judgment interest cannot be calculated on prejudgment interest because prejudgment interest is not part of the just and adequate compensation awarded in a condemnation case). Likewise, the DOT’s argument about the quick availability of funds awarded in an interlocutory proceeding under OCGA § 32-3-15 is without merit. The DOT argues:

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 OCGA § 32-3-15 (d). And, as the DOT concedes, prejudgment interest is available on jury trial awards. Thus the quick availability of funds awarded in an interlocutory proceeding is not relevant to whether interest on that award is available.

The DOT also points to the clause of OCGA § 32-3-19 (c), emphasized below:

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 OCGA § 32-3-15 provides that deposited funds are available to only those who dismiss their appeal. Rather, in either case, under the express terms of OCGA § 32-3-19 (c), the trial court must determine whether the condemnee is not entitled to interest because the condemnee had access to the funds “paid into court pursuant to an interlocutory award,” OCGA § 32-3-15 (d), without the requirement of posting a bond.

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. OCGA § 32-3-7 (a). To the extent the condemnor has underestimated the true value of the property, the condemnee has been deprived of a portion of the 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 the DOT paid the balance due, Shiv Aban was deprived of $1.27 million of its property, upon which it could have obtained interest in the open market. In short, there is nothing unreasonable about our interpretation of the applicability of OCGA § 32-3-19 (c) to the present case. See generally Brooks, 254 Ga. at 61 (1) (b) (“The 7% prejudgment interest rate is simply an incident of any condemnation action and applies to all condemnees equally.”).

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 OCGA § 9-15-14 (a) and/or[] OCGA § 9-15-14 (b).”

Subsection (a) of OCGA § 9-15-14 requires an award of attorney fees when a party asserts “a claim, defense, or other position with respect to which there existed such 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, defense, or other position.” Subsection (b), among other things, gives discretion to a trial court to award attorney fees when a party brings or defends an action “that lacked substantial justification.” See also Fulton County Bd. of Tax Assessors v. Boyajian, 271 Ga. 881, 882 (2) (525 SE2d 687) (2000). We will “affirm an award under subsection (a) if there is any evidence to support it, while we review subsection (b) awards for 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 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 reasonably be 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 compensation.” The court therefore awarded fees and expenses to Shiv Aban as stated above.

(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 reliefregardingSimshauser’s appraisal was OCGA § 32-3-11, which provides the trial court with “the authority to set aside, vacate, and annul the declaration of taking, together with any title acquired thereby’ in instances of fraud; bad faith; improper use, abuse, or misuse of the power of eminent domain; or certain other reasons not applicable here. OCGA § 32-3-11 (a), (b). And any such assertion must be brought within 30 days following service of the declaration of taking, which Shiv Aban did not do. OCGA § 32-3-11 (c).

The Supreme Court of Georgia has confirmed that OCGA §9-15-14 applies to condemnation proceedings. Dept. of Transp. v. Woods, 269 Ga. 53, 55 (1) (494 SE2d 507) (1998). But as this Court has held, OCGA § 9-15-14 does not apply to a condemnor’s pre-litigation activities. Cobb County v. Sevani, 196 Ga. App. 247, 248-249 (395 SE2d 572) (1990) (holding that the focus of OCGA § 9-15-14 is upon actions undertaken during the legal proceedings, “not upon the pre-litigation actions of one who only subsequently becomes a party to a legal proceeding”).

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 OCGA § 9-15-14 “relying entirely upon the manner in which Condemnor had conducted the pre-acquisition appraisal and negotiations.” Id. at 247. No further details are provided about the nature of those alleged activities, and, importantly, the opinion does not state or suggest that condemnor filed a legally flawed appraisal in the litigation in support of its estimate of just and adequate consideration. Here, unlike in Sevani, the facts show that the DOT filed a fundamentally flawed appraisal in support of the declaration of taking and therefore took a baseless position in the present litigation. Thus Shiv Aban rightly challenges litigation activities by the DOT, not pre-litigation activities barred by Sevani.

We further agree with Shiv Aban that it did not waive its claim of fees under OCGA § 9-15-14 by not attacking the taking under OCGA § 32-3-11. By its very terms, OCGA § 32-3-11 (a) and (b) provide that the trial court may “set aside, vacate, [or] annul the declaration of taking, together with any title acquired thereby.” But Shiv Aban does not seek to set aside the taking. Compare Sevani, 196 Ga. App. at 249 (when condemnee believes condemnor’s preacquisition activities are abusive, condemnee can move to set aside the taking under OCGA § 32-3-11). Rather, Shiv Abanaccepted the legitimacy of the taking and only contested the amount of compensation. Its attack on the DOT’s initial estimate of just compensation is not an attempt to set aside the taking but rather to recover fees incurred in response to an initial estimate that was so flawed as to constitute a violation of OCGA § 9-15-14. Sevani is distinguishable because, unlike the present case, the condemnee in Sevani challenged the condemnor’s pre-litigation activities and here, Shiv Aban challenges the condemnor’s litigation activities. Accordingly, the trial court correctly concluded that Shiv Aban was authorized to seek fees under OCGA § 9-15-14, and the DOT’s first enumeration of error is therefore without merit.

(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 OCGA § 9-15-14 (a), which we will affirm if there is any evidence to support the award, and OCGA § 9-15-14 (b), which we review for abuse of discretion.

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 OCGA § 9-15-14 (a); compare Woods, 269 Ga. at 55 (2) (“[Bjecause 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 OCGA § 9-15-14’s standards.

Because the trial court’s award of fees is affirmed under OCGA § 9-15-14 (a), we need not address whether the trial court abused its discretion by finding that the DOT’s action lacked substantial justification under OCGA § 9-15-14 (b).

(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 percent 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 the limited contingency fee sought by Shiv Aban to the fee that would have been incurred under hourly billing, and held that the limited contingency fee was reasonable given the risks involved in taking a contingency fee case. Thus the court evaluated the value of the services for which contingency fees were sought based on information other than the contingency fee agreement itself and therefore properly followed Couch in determining the amount of the fee award. The DOT’s reliance on Gibson is misplaced. That case only found fault with how a trial court failed to show that it apportioned its award to distinguish fees incurred based on sanctionable conduct from fees incurred for other aspects of the case; it did not prohibit fee awards based on contingent fee agreements. Gibson, 327 Ga. App. at 691 (3).

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 OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct.”) (citation, punctuation and footnote omitted). Here, as requested by Shiv Aban, the trial court limited its calculation of attorney fees to those associated with the difference between the DOT’s highest pretrial offer and $1.25 million, the value of the property found by the DOT’s testifying appraiser. Thus, the trial court did not simply award an unapportioned “lump sum” as the DOT suggests and in fact apportioned the award as required by the above case law. Compare Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009) (“trial court failed to apportion fees between those incurred in defending against the claims deemed frivolous and any that were not”). In sum, we find no error in the trial court’s calculation of the fee award.

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.

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.

       Two other methods of condemnation exist under Georgia law: the assessor method, see OCGA §§ 22-2-1 to 22-2-86; and the special master method, see OCGA §§ 22-2-100 to 22-2-114. Windsor v. City of Atlanta, 287 Ga. 334, 335, n. 1 (695 SE2d 576) (2010).

       The declaration of taking method “is the only procedure that allows the taking or damaging of private property before an evidentiary hearing has been held to fix the amount of just and adequate compensation.” 1 Daniel F. Hinkel, Pindar’s Ga. Real Estate Law & Procedure § 2:33 (7th ed.).

       OCGA § 32-3-15 (d) provides that the money in the court registry could have been paid to Shiv Aban at any time after the interlocutory award if Shiv Aban had posted a bond:
      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 he 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.
      OCGA § 32-3-15 (d). As of the hearing held on November 10, 2014, the parties agreed that the money remained in the registry of the court.

       Subsection (c) also provides that “interest shall not be allowed on so much [of the judgment] 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.” OCGA § 32-3-19 (c). The remainder of subsection (c) contains rules that address underpayment and overpayment by the condemnor relative to the final judgment amount.

       OCGA § 32-3-13 (b) provides:
      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.
      OCGA § 32-3-13 (c) provides:
      In any event, the case shall be transferred, under the conditions set out in this Code section, to the closed docket.

       OCGA § 32-3-19 (a) provides:
      (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 he described in said declaration, or to any separate claim against the property or interest therein as may he 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.

       OCGA § 32-3-19 (b) provides:
      (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.

       Subsection (b) also includes a provision allowing the clerk to issue an execution if the condemnor fails to pay prejudgment interest awarded by the court. OCGA § 32-3-19 (b).

       Statutes that are “in pari materia,” i.e., those that relate to the same subject matter, must be construed together. Snyder v. State, 283 Ga. 211, 214 (3) (657 SE2d 834) (2008).

       Here, Shiv Aban is not asking for any interest after the date the DOT deposited the $1.27 million into court, i.e., the earliest date possible that the additional funds became available to Shiv Aban.

       OCGA § 32-3-7 (a) provides:
      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 he deemed to he 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.

       The DOT does not challenge the wording of this award of attorney fees.

       Other eases cited by the DOT are inapposite or distinguishable. In Dept. of Transp. v. Franco’s Pizza & Delicatessen, 164 Ga. App. 497 (297 SE2d 72) (1982), which is physical precedent only, the condemnee alleged that the condemnor improperly handled pre-acquisition negotiation with prospective condemnees pursuant to inapplicable federal guidelines. Id. at 498 (Carley, J., concurring specially). The condemnees did not contend that the condemnor filed a legally insufficient affidavit in support of a declaration of taking. The case of Kitchens v. Ezell, 315 Ga. App. 444, 451 (2) (726 SE2d 461) (2012) (physical precedent only), involved bad faith negotiations and actions during pre-litigation attempts to settle a claim.

       Shiv Aban had a contingent fee contract that provided a sliding scale contingency of 40 percent of the first $250,000 recovered in excess of the DOT’s highest pre-taking offer of $503,684; 30 percent of the amount recovered in excess of $753,684; and 25 percent of the amount recovered in excess of $1,003,684.


source: Caselaw Access Project

author: Branch, Judge. MILLER, Presiding Judge,

license: Public Domain

text:
    A15A2064.
    HUNT v. THE STATE.
    (783 SE2d 456)
   Branch, Judge.

Edward Hunt appeals his conviction on 16 counts of criminal conduct as well as the denial of his motion for new trial. He contends the evidence was insufficient to support the convictions, that the trial court erred by admitting certain evidence, and that his trial counsel was ineffective by failing to challenge the scientific basis of the “Child Abuse Accommodation Syndrome” (CAAS). For the reasons below, we affirm the judgment but vacate the sentence and remand for resentencing.

On appeal, we do not assess the weight of the evidence or the credibility of witnesses. Instead, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original).

When the case came to trial, K. B., age 17 at the time of trial, testified that her mother introduced Hunt to her and her siblings when K. B. was six years old, in approximately 1999. Months later, he moved into their home in Oconee County. When she was six, he touched her on the inside and outside of her clothing, and on the inside and outside of her private parts. While she was still six, his touching progressed to oral sex, which occurred almost every day and lasted until her mother and Hunt split up when she was about 7.5 years old. The family then moved to north Georgia and she rarely saw Hunt for several years. In approximately 2003 or 2004 when K. B. was in sixth grade, however, her mother and Hunt resumed their relationship, this time in Barrow County. They eventually got married and had a daughter, H. H., who was born on August 16, 2005. Hunt’s improper sexual activity with K. B. started up again almost immediately thereafter, including Hunt forcing her to give him oral sex in order to be released from time-out in her room. During the time the family lived in Barrow County, Hunt would touch her “[e] verywhere. My breasts, my privates ... [m]y vagina .. . my butt. He touched me everywhere,” including inside her vagina with his fingers and touching her breast area with his mouth. These incidents occurred “pretty often” and in multiple places in the house and in a building in the back of the house. During this time, Hunt would also touch her breasts, privates, and buttocks with his penis; give her oral sex; make her touch his privates; and make her give him oral sex. Hunt also had sex with her, once when she was 12 years old. On that occasion, she told him “no” and “to stop,” but he “did it anyway,” which hurt her and made her feel awful. When asked how often he had sex with her, K. B. testified “everything went on for so long it just kind of runs together. But at least two times that I know of.” She testified that to make her engage in these activities, he would threaten to hit her mother, which he had done before, or to sexually abuse one of her siblings. The sexual activity continued until March of her eighth-grade year. At about that time, K. B. told her older sister S. B. what had been happening, and, later, when her younger sister said that Hunt had hurt her, K. B. told her mother. K. B.’s mother testified that K. B. appeared to be depressed at this time, and K. B.’s counselor testified that K. B. had difficulties with “trust, relationships, guilt, anger, and [had] a recurrent nightmare,” which was consistent with a child that had been sexually abused.

The State also introduced two similar transactions into evidence. In one transaction, S. B. testified that Hunt once commented on her breast size and once asked her if she had been masturbating because “if [she] was masturbating then [she’d] better share.” In the second similar transaction, H. H., Hunt’s biological daughter and K. B.’s younger half-sister, testified that Hunt “did nasty things to [her] really hard.” These events occurred when the child was age three. Other witnesses testified that H. H. reported that Hunt had hurt her mouth, butt, and vagina with his penis. K. B.’s mother contacted DFACS, which ultimately led to an investigation of Hunt’s actions with K. B. Finally, the State introduced the testimony of a social worker who interviewed H. H.; as a part of her testimony, the social worker was allowed to testify, over defense objection, regarding the CAAS.

Following the investigation of the allegations against Hunt regarding K. B., the State charged him with sixteen crimes, including two counts of rape, nine counts of child molestation, four counts of aggravated child molestation, and one count of cruelty to a child in the first degree. In six matching pairs of counts (Counts 1 and 2, 3 and 4, 5 and 6, 7 and 8, 9 and 10, and 14 and 15), Hunt was charged with committing identical crimes against K. B. “on and between the 6th day of August, 2005, and the 1st day of March, 2007, the exact date being unknown to the Grand Jury,” with the only difference between the two counts in each pair being that the second count specified that the second occurrence of the same crime occurred on an “occasion different” or “on a different date” than the first occurrence. The jury returned a verdict against Hunt on all 16 counts, and the trial court sentenced him on each count. The sentences on each count within each of the six pairs of matching crimes were to run concurrently with each other.

1. Hunt first contends the evidence against him was insufficient. We disagree.

(a) K. B. testified to facts to show that Hunt committed each of the crimes alleged in the indictment within the time period alleged in the indictment.

As shown above, she testified that Hunt forced her to have sex with him against her will and under threat of harm to her mother on at least two occasions, which supports the two counts of rape. OCGA § 16-6-1 (a) (1) (“Aperson commits the offense of rape when he has carnal knowledge of... [a] female forcibly and against her will.”); Ponder v. State, 332 Ga. App. 576, 581 (1) (b) (774 SE2d 152) (2015) (“[F]orce may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.”) (citation and punctuation omitted); Summerour v. State, 242 Ga. App. 599, 600 (1) (530 SE2d 494) (2000) (“The element of force is shown if the defendant’s words or acts were sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself or others.”) (punctuation and footnote omitted).

The victim also testified that Hunt put his penis in her mouth on multiple occasions and put his mouth on her vagina on multiple occasions, which supports the four counts of aggravated child molestation based on that conduct. OCGA § 16-6-4 (c) (“A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which . . . involves an act of sodomy.”). She testified that Hunt made her touch his penis on multiple occasions and that he touched her private parts in numerous ways on multiple occasions, which supports the seven counts of child molestation based on that conduct. OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person:... Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”). And the evidence showed that by his conduct, Hunt hurt K. B., made her feel awful, caused her to feel depressed, and gave her nightmares, which supports the single count of cruelty to children in the first degree. See OCGA § 16-5-70 (b) (“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”); Banta v. State, 282 Ga. 392, 397 (5) (651 SE2d 21) (2007) (one manner of proving cruelty to children in the first degree is to establish “the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm might result”) (citations omitted); see, e.g., Bunn v. State, 307 Ga. App. 381, 383 (1) (a) (705 SE2d 180) (2010), affirmed, 291 Ga. 183 (728 SE2d 569) (2012) (cruel or excessive mental pain shown where victims testified that defendant’s sexual misconduct made them feel uncomfortable and caused one victim to stop paying attention in school, to start stealing in school, and to became aggressive with her sister).

(b) As a part of his argument, Hunt contends that he was improperly convicted on both counts in each of the six matching pairs of counts set forth above for the reason that there was insufficient evidence that a second offense occurred; he also argues that the trial court was not authorized to sentence him on both of each matching counts. As we have held above, sufficient evidence was presented to show that Hunt committed each of the crimes alleged, including that he committed each of the crimes charged in the six matching pairs of counts on multiple occasions. We agree, however, that Hunt may only be sentenced on one count in each of the six matching pairs of counts.

‘Where two charges are indistinguishable because all of the averments, including date (which was not made an essential element), victim, and description of defendant’s conduct constituting the offense were identical, only one sentence maybe imposed.” Daniels v. State, 320 Ga. App. 340, 342 (2) (739 SE2d 773) (2013) (citation and punctuation omitted). See also LaPan v. State, 167 Ga. App. 250, 253-254 (4) (305 SE2d 858) (1983) (“Since all the dates alleged fall within the period of the statute of limitation, only one sentence can be imposed.”) (citations omitted) (physical precedent only); Smith v. State, 160 Ga. App. 26, 29 (4) (285 SE2d 749) (1981) (where “the counts in the accusation are identical except for the dates alleged,” and the dates “were not made essential averments, only one conviction can stand”) (citation omitted); Hilliard v. State, 193 Ga. App. 54 (1) (387 SE2d 21) (1989). Here, as shown above, in six matching pairs of counts (Counts 1 and 2, 3 and 4, 5 and 6, 7 and 8, 9 and 10, and 14 and 15), Hunt was charged with committing one of these crimes against K. B. within a certain range of dates, “the exact date being unknown to the Grand Jury,” with the only difference between the two counts in each pair being that the second count specified that the second occurrence of the same crime occurred on an “occasion different” or “on a different date” than the first occurrence. The State did not allege in these counts, nor could they, that the separate events within the same date range were somehow material averments of the complaint. Accordingly, Hunt may be sentenced on only one of the counts in each of the matching pairs of counts listed above. Hunt’s sentence therefore is vacated and the case remanded for resentencing consistent with this opinion.

2. Hunt contends the trial court erred by allowing similar transaction evidence regarding S. B. and H. H. The trial in this case was held in February 2011, and therefore former OCGA § 24-2-2 was applicable at the time.

Under the prior law, “evidence of an independent bad act committed by the defendant [could] be admissible if the evidence [was] substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he has a criminal character,” such as “to prove such things as motive, intent, bent of mind, course of conduct,... plan, scheme, or identity.” Peoples v. State, 295 Ga. 44, 53-54 (4) (b) (757 SE2d 646) (2014) (citations and punctuation omitted). Thus, at the hearing on the similar transaction evidence, the State bears the burden of showing

that it seeks to introduce the evidence for an appropriate purpose; that there is sufficient evidence to establish that the accused committed the independent act; and that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.

Johnson v. State, 289 Ga. 22, 24 (2) (709 SE2d 217) (2011) (citations omitted). With regard to similarity, “there can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar.” Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007) (punctuation andfootnote omitted). Atrial court’s factual findings regarding whether the State satisfied the three-prong test will be affirmed unless those factual findings are clearly erroneous. Reed v. State, 291 Ga. 10, 13-14 (3) (727 SE2d 112) (2012). The trial court’s decision to admit the similar transaction is reviewed for abuse of discretion. Id.

(a) Hunt objected to S. B.’s testimony that Hunt once commented on her breast size and once asked her if she had been masturbating because “if [she] was masturbating then [she’d] better share.” Following a hearing on the admissibility of the evidence regarding S. B., the trial court found that although the evidence did not show a criminal offense, “such inappropriate and questionable behavior is admissible and tends to show Defendant’s lustful disposition”; that the evidence could be offered to show Hunt’s “common scheme and a course of conduct of instigating inappropriate sexual contact with a minor female family member”; that it was admissible to show his “sexual proclivity toward young girls, i.e., bent of mind”; and that there was sufficient similarity and connection between these acts and the charges against Hunt.

We find no abuse of discretion. First, bent of mind, course of conduct, and lustful disposition were all valid purposes under the prior law. See Dillard v. State, 297 Ga. 756, 759 (3) (778 SE2d 184) (2015). And Hunt’s comment about S. B. “sharing” can certainly be construed in a way to show his bent of mind and lustful disposition. Second, S. B.’s testimony was sufficient to establish that he made the comments at issue. And, third, the trial court’s finding that the prior acts were sufficiently similar to the charges against Hunt was not clearly erroneous. Again, the “sharing” comment can be construed as an act whereby Hunt instigated inappropriate sexual contact with a minor female family member, as he did in the charges for which he was on trial. And “this Court has previously upheld the admission of similar transaction evidence demonstrating noncriminal, but inappropriate or questionable behavior by a defendant toward young girls as tending to show the defendant’s lustful disposition.” Leaptrot v. State, 272 Ga. App. 587, 597 (3) (a) (612 SE2d 887) (2005) (citations omitted). We therefore find no abuse of discretion by the trial court in allowing the similar transaction evidence regarding S. B.

(b) Hunt enumerates as error that the trial court allowed similar transaction evidence regarding Hunt’s actions on K. B.’s younger sister H. H. But Hunt argues only that the trial court erred by admitting child hearsay of H. H. under former OCGA § 24-3-16 and Gregg v. State, 201 Ga. App. 238 (411 SE2d 65) (1991).

Under former OCGA § 24-3-16:

A statement made by a child under the age of 14 years describing any act of sexual contact... performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

When assessing the indicia of reliability, the trial court may consider the following factors:

(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

Gregg, 201 Ga. App. at 240 (3) (b) (citations omitted). Other factors, such as “consistency with known facts, repeated questioning or counseling by several people during the interview period, and whether the interviews were conducted by law enforcement personnel with the intention of gathering evidence against the accused” may also be considered. Ferreri v. State, 267 Ga. App. 811, 813 (600 SE2d 793) (2004) (citation omitted). A trial court is not required to make “a specific finding of sufficient indicia of reliability in order for the out-of-court statements of child victims to be admissible.” Whorton v. State, 321 Ga. App. 335, 338 (1) (741 SE2d 653) (2013) (punctuation and footnote omitted). Rather, the requirements of former OCGA § 24-3-16 are met if “after both parties have rested, the record contains evidence which would support such a finding.” Id. (punctuation and footnote omitted).

In this case, the trial court assessed the ten Gregg factors and found that the only factors that were “questionable” were “the child’s age and the spontaneity other statements.” After additional discussion, the court concluded that the statements had sufficient reliability to be submitted to the jury for the ultimate determination of credibility.

Hunt’s primary argument on appeal is deficient. In the single sentence that directly addresses the child hearsay, Hunt only argues that the statements made by H. H. to the witnesses were internally inconsistent and not spontaneous. Yet Hunt has failed to identify precisely what evidence he challenges and failed to offer any explanation, supporting facts, or other detail to support his conclusion, either in the argument section of his brief or his statement of facts. “It is not this Court’s job to cull the record on behalf of the [appellant] to find alleged errors.” Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012) (citation omitted). Accordingly, Hunt has failed to carry his burden of showing an abuse of discretion by the trial court in admitting the similar transaction evidence, including child hearsay, about Hunt’s actions with regard to H. H. See generally Brittain v. State, 329 Ga. App. 689, 693 (2) (766 SE2d 106) (2014) (nothing for this Court to review where appellant provided only “vague reference to alleged hearsay statements by various witnesses . . . [and] little detail or specific record citations to the statements he contends were admitted in error by the trial court”).

3. Hunt contends the trial court erred by allowing testimony regarding alleged acts of violence between Hunt and K. B.’s mother.

Prior to trial, the State stated its intent to offer testimony regarding acts of violence between Hunt and K. B.’s mother, that K. B. witnessed, on the ground that the incidents were relevant to show why K. B. waited to disclose the crimes and as evidence of force for the rape count. Hunt objected to the admission of this evidence on the ground that the State failed to show that the alleged domestic violence caused K. B. to delay reporting and on the ground that the evidence put Hunt’s character in issue. On appeal, Hunt contends the court erred by allowing the domestic violence evidence because the evidence presented at trial did not support the State’s contention that witnessing the domestic violence prompted K. B. to delay reporting the crimes against her. Pretermitting that question, however, the evidence was otherwise relevant in that it shed light on the force element of rape, that is, that Hunt told K. B. that he would hurt her mother if she refused his sexual advances. Summerour, 242 Ga. App. at 601 (2) (where force is an element of proof, “victim’s testimony regarding [defendant’s] violence in the form of threats to himself and others and the victim’s fear of him was relevant and admissible” even if the evidence incidentally places the defendant’s character in issue) (footnote omitted). We find no abuse of discretion in allowing this evidence. Siharath v. State, 246 Ga. App. 736, 739 (2) (541 SE2d 71) (2000) (proof that defendant had harmed victim’s mother and others was some evidence that defendant used force, in the form of intimidation, to rape child).

4. Finally, Hunt contends his trial counsel was ineffective because she failed to present evidence to challenge the scientific basis of the CAAS, especially given that the jury was not instructed to consider the evidence only in connection with the similar transaction involving H. H. “To prevail on this claim, Appellant must show both that [his] trial counsel provided deficient performance and that, but for that unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different.” Brown v. State, 292 Ga. 454, 456 (2) (738 SE2d 591) (2013) (citations omitted).

At trial, the State introduced the testimony of Becky Lee, the director of a children’s advocacy center with a master’s degree in social work who had conducted over 500 forensic interviews. Lee was qualified as an expert in forensic interviewing, and she testified that she interviewed H. H. in August 2009. During Lee’s testimony, the State announced that it intended to have Lee testify about CAAS, and Hunt objected on the ground that Lee was not qualified as an expert in child abuse. The court ruled that as an expert forensic interviewer, Lee was qualified to testify about CAAS. Lee then identified and described five “categories” of CAAS: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction. Lee did not relate her testimony to any specific victim. Hunt’s trial counsel then cross-examined Lee and got Lee to admit that even though a child who has experienced molestation may remain secret, the lack of a disclosure by a child is also consistent with the defendant’s innocence. And counsel made the same argument to the jury during closing.

At the hearing on Hunt’s motion for new trial, Hunt’s appellate counsel presented the testimony of Dr. Mac Martin, a forensic psychologist, to explain the basis of CAAS and the appropriate uses of that theory. In Hunt’s only reference to Martin’s testimony, Hunt contends that Martin testified that “using CAAS in a forensic context is not appropriate.” But Hunt has not shown that Lee used CAAS in a forensic or inappropriate manner; Hunt has not shown that Lee used CAAS to opine that either K. B. or H. H. had been molested. Moreover, Hunt’s trial counsel testified that her decision not to employ an expert to rebut Lee’s testimony regarding CAAS was strategic; she testified that calling such an expert could bolster the State’s expert by testifying to much of the same information. Rather, she chose to cross-examine Lee to show that the “symptoms of this syndrome were also consistent with a kid who wasn’t molested,” and to illustrate that an expert can “take anything and make it look like it’s consistent with child sexual abuse.”

“It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics.” Hubbard v. State, 285 Ga. 791, 794 (3) (683 SE2d 602) (2009) (citation and punctuation omitted). “And tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.” Brown, 292 Ga. at 456 (2) (citation and punctuation omitted). Given that Martin testified that an abused child will experience several of the CAAS traits, which would have bolstered the State’s case at trial, we cannot conclude that no competent attorney would have relied on cross-examination alone to rebut the testimony about CAAS in this case. Accordingly, Hunt’s claim of ineffective assistance of counsel must fail. See id. (“[C]ounsel’s strategic decision not to continue hunting for a defense expert, but instead to challenge the State’s experts on cross-examination, while also presenting a robust defense to other aspects of the State’s case, was not unreasonable and did not constitute deficient performance.”) (citation omitted).

Judgment affirmed, sentence vacated, and case remanded with direction.

Andrews, P. J., Barnes, P. J., Ellington, P. J., Dillard and McFadden, JJ., concur. Miller, P. J., concurs in part and dissents in part.

MILLER, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 2, 3, and 4 of the majority’s opinion. I also concur fully with the majority’s holding in Division 1 that the evidence was sufficient to support all of Hunt’s convictions. I respectfully dissent to the majority’s decision to vacate Hunt’s sentence and remand this case with direction, because the trial court properly entered separate sentences on each of Hunt’s convictions.

Where an averment in one count of an accusation or indictment distinguishes it from all other counts, either by alleging a different set of facts or a different date which is made an essential averment of the transaction, the State may on conviction punish the defendant for the various crimes.

(Citation and punctuation omitted; emphasis supplied.) Salley v. State, 199 Ga. App. 358, 362 (4) (405 SE2d 260) (1991); see also Anderson v. State, 306 Ga. App. 423, 424 (2) (702 SE2d 458) (2010). Moreover, it is well settled that where the “averments of each count refer to a different period of time [the] same is made an essential averment of the transaction, and each count of the indictment is distinguishable.” (Citations omitted.) Hamilton v. State, 167 Ga. App. 370, 371 (306 SE2d 673) (1983).

Decided March 29, 2016 —

Reconsideration denied April 14, 2016

Benjamin A. Pearlman, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Patricia J. Brooks, Assistant District Attorneys, for appellee.

Here, in each pair of counts (Counts 1 and 2, 3 and 4, 5 and 6, 7 and 8, 9 and 10, and 14 and 15), the second count charged Hunt with committing the alleged act on an occasion or date different from the prior count. For instance, Count 2 charged Hunt with committing rape “on an occasion different than Count 1”; Count 4 charged Hunt with committing child molestation “on a date different from Count 3”; and Count 6 charged Hunt with committing aggravated child molestation “on a date different than Count 5.” Because Hunt’s indictment alleged that each pair of crimes was committed on different dates, those dates were made an essential averment of each charged crime. Salley, supra, 199 Ga. App. at 362 (4). Evidently, the trial court found that the evidence was legally sufficient as to each date alleged in each count of Hunt’s indictment. Consequently, the trial court did not err in sentencing Hunt separately for each of his convictions. See Anderson, supra, 306 Ga. App. at 424 (2). Accordingly, I would affirm the trial court.

       See generally Bloodworth v. State, 128 Ga. App. 657, 658 (1) (197 SE2d 423) (1973) (“The rule is generally that time is not of the essence, and that on a general presentment there may be a conviction of the offense charged within the period of the statute of limitation, which may, however, be pleaded as res judicata to any offense fitting the averments of the indictment within such period. But where the date is alleged to be material, the contrary is true: the defendant may be convicted if and only if the proof corresponds to the date alleged, but no res judicata plea lies as to any other date.”) (citations omitted).

       See Jones v. State, 333 Ga. App. 796, 800 (2) (777 SE2d 480) (2015) (“The State must make an election when it charges a defendant with multiple counts of the same crime: if the State makes the dates material averments and introduces sufficient evidence to prove the dates, it may obtain multiple convictions; if the State does not make the dates material averments, then it has a much broader time frame within which to prove the crimes were committed, but it is limited to a single conviction.”).

       The cases cited by the dissent do not support a different conclusion. In both Salley v. State, 199 Ga. App. 358, 362 (4) (405 SE2d 260) (1991), and Hamilton v. State, 167 Ga. App. 370, 371 (306 SE2d 673) (1983), unlike the present case, the two otherwise matching counts referred to different periods of time and thus the counts were distinguishable and the defendant could be sentenced on both counts. See Hamilton, 167 Ga. App. at 371 (where “[t]he averments of each count refer to a different period of time . . . [the] same is made an essential averment of the transaction, and each count of the indictment is distinguishable”). In the present case, each of the pairs of matching counts refers to the same period of time, with the only difference being that the second count alleges that within that same period of time a second identical crime occurred on a different unknown date. And the averment that there was a separate crime within the same period but on an unknown date does not, by any means, establish the date of the crime as a material averment. The third case cited by the dissent, Anderson v. State, 306 Ga. App. 423, 424 (2) (702 SE2d 458) (2010), is also distinguishable because in that case, the defendant was charged with “separate and distinct acts” for which each date of commission was alleged as a material averment.

       Georgia’s new rules of evidence apply to “any motion made or hearing or trial commenced on or after” January 1, 2013. See Ga. L. 2011, p. 99, §§ 2, 101.

       For offenses occurring on or after July 1,2013, a showing of indicia of reliability is no longer a requirement for allowing child hearsay evidence. Ga.L. 2013, p.222, § 21; OCGA § 24-8-820 (also changing age to 16).


author: MCFADDEN, Judge. DILLARD, Judge,

text:
    A15A2136.
    PARK SOLUTIONS, LLC v. DeKALB COUNTY BOARD OF TAX ASSESSORS.
    (783 SE2d 453)
   MCFADDEN, Judge.

The issue in this appeal is whether a sheriff’s sale of certain real property was an “arm’s length, bona fide” sale under OCGA § 48-5-2 (3) so that the sale price constituted the property’s maximum allowable fair market value for the next taxable year. Because we find that the sheriff’s sale was such an arm’s length, bona fide sale, the superior court’s ruling to the contrary was erroneous and must be reversed.

On June 4, 2013, Park Solutions, LLC bought a tract of land for $25,000 at a sheriff’s sale in DeKalb County. The sheriff’s deed provided that Mollye Devault and Robert Christopher Taylor were the owners of the property; that the owners made the deed by and through the DeKalb County sheriff, acting in his official capacity; that the sheriff conducted the sale to satisfy a default judgment of $37,796 obtained by DRST Holdings Ltd.; that the sale was held “at the usual place for conducting [s]heriff’s sales in DeKalb [C]ounty before the [c]ourthouse door”; and that Park Solutions was the highest bidder at the “public outcry.”

After the sale, the county appraised the value of the property as $146,900 for the 2014 tax year, and Park Solutions appealed that valuation to the DeKalb County Board of Tax Assessors. The board of tax assessors issued a decision finding that the fair market value of the property was $137,700. Park Solutions appealed that decision to the DeKalb County Board of Equalization, which upheld the county tax assessor’s fair market value finding of the property as $137,700. Park Solutions then appealed to the superior court, asserting that, pursuant to OCGA § 48-5-2 (3), the maximum allowable fair market value of the property for the 2014 tax year was the $25,000 price that it had paid at the sheriff’s sale. The trial court rejected the argument, finding that the sheriff’s sale was not an arm’s length, bona fide sale under that statute because such “judicial foreclosure sales are not mentioned in the statute and also the parties to the sale are related and affiliated.” The trial court concluded that the county had accurately determined the fair market value ofthe property as of January 1, 2014, to be $137,700. Park Solutions appeals from the superior court’s final order.

1. Sheriff’s sale.

Park Solutions asserts that the trial court erred in finding that the sheriff’s sale in this case was not governed by OCGA § 48-5-2 (3) because such judicial foreclosure sales are not mentioned in the statute. We agree with the assertion.

OCGA § 48-5-2 (3), which is part ofthe code governing ad valorem taxation of property, provides, in pertinent part:

“Fair market value of property” means the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale. . . . Notwithstanding any other provision of this chapter to the contrary, the transaction amount of the most recent arm’s length, bona fide sale in any year shall be the maximum allowable fair market value for the next taxable year. . . .

The term “arm’s length, bona fide” sale as used in this Code section is defined as

meaning] a transaction which has occurred in good faith without fraud or deceit carried out by unrelated or unaffiliated parties, as by a willing buyer and a willing seller, each acting in his or her own self-interest, including but not limited to a distress sale, short sale, bank sale, or sale at public auction.

OCGA § 48-5-2 (.1) (emphasis supplied).

Thus, OCGA § 48-5-2 (3) “provides the method for assessing [fair market] value as of [January 1 of the applicable tax year] . . . , with its focus on the actual market-determined value of property on the actual date the property was acquired, rather than its value as much as a year later[.]” Columbus Bd. of Tax Assessors v. Yeoman, 293 Ga. 107, 109 (2) (744 SE2d 18) (2013). “This amounts to a freeze on the ad valorem tax value of property for one year. [Cit.]” Ballard v. Newton County Bd. of Tax Assessors, 332 Ga. App. 521, 522 (773 SE2d 780) (2015).

In finding that this freeze on the value of the property did not apply to the sheriff’s sale in this case, the trial court relied on OCGA § 48-5-1, which provides:

The intent and purpose of the tax laws of this state are to have all property and subjects of taxation returned at the value which would be realized from the cash sale, but not the forced sale, of the property and subjects as such property and subjects are usually sold except as otherwise provided in this chapter.

(Emphasis supplied.) The trial court then reasoned that foreclosure sales are considered to be forced sales and therefore “[r]eading [OCGA] § 48-5-2 (.1) to include judicial foreclosure sales would be contrary to the expressed intent of Title 48 to exclude values realized as a result of the forced sale of a property.”

However, the trial court overlooked the plain language in OCGA § 48-5-1 providing that it applies “except as otherwise provided in this chapter.” Likewise, the controlling portion of OCGA § 48-5-2 (3) itself expressly provides that it applies “[notwithstanding any other provision of this chapter to the contrary [.]” We must construe these statutes together and harmonize them to ascertain the legislative intent. Aimwell, Inc. v. McLendon Enterprises, 318 Ga. App. 394, 397 (1) (734 SE2d 84) (2012). In so doing, even if we assume, without deciding, that there is some inconsistency between them, it is apparent from the plain language of both Code sections that, notwithstanding anything to the contrary, the legislative intent was to allow the specific provision of a one-year freeze on ad valorem tax value set forth in OCGA § 48-5-2 (3) to control over the general expression of purpose set forth in OCGA § 48-5-1. See Hubert Properties, LLP v. Cobb County, 318 Ga. App. 321, 323 (1) (733 SE2d 373) (2012) (specific statute will prevail over a general statute to resolve any inconsistency between them).

Moreover, the trial court also erred in concluding that the absence of the term “foreclosure sale” from OCGA § 48-5-2 (.1) indicates that such sales were excluded by the legislature from that Code section’s definition of an arm’s length, bona fide sale. As recited above, OCGA § 48-5-2 (.1) defines an arm’s length, bona fide sale as “including but not limited to a distress sale, short sale, bank sale, or sale at public auction.” (Emphasis supplied.) Contrary to the trial court’s interpretation of this Code section, the legislature’s use of the phrase “including but not limited to” is not restrictive or exclusive, and instead “reflects broad language of illustration or enlargement. [Cit.]” Hendry v. Hendry, 292 Ga. 1, 2 (1), n. 2 (734 SE2d 46) (2012).

Indeed, two of the examples of the types of sales expressly included in the definition of an arm’s length, bona fide sale set forth in OCGA § 48-5-2 (. 1) — distress sales and public auctions — clearly include the foreclosure sale executed by the sheriff in this case. “The statute does not define the... terms [‘distress sale’or ‘public auction,’] and we therefore look to their plain and ordinary meanings as defined by dictionaries.” Skelhorn v. State, 332 Ga. App. 782, 787 (3) (b) (773 SE2d 45) (2015) (citation and punctuation omitted). Black’s Law Dictionary (10th ed. 2014), defines the term “distress sale” as “[a] form of liquidation in which the seller receives less for the goods than what would be received under normal sales conditions,” and as a “foreclosure ... sale.” Under this ordinary meaning of the phrase, the sheriff’s foreclosure sale in this case was a distress sale as contemplated by the statute.

Furthermore, Black’s Law Dictionary (10th ed. 2014) defines the word “auction” as being “[a] public sale of property to the highest bidder,” and it defines the term “public sale” as meaning “[a] sale made after public notice, such as an auction or sheriff’s sale.” Consistent with this dictionary definition, another statute in our official Code provides that “the term ‘public sale’ means any sale, the notice of which must by law in any manner be given to the public.” OCGA § 9-13-160 (a). Thus, under these definitions, the sheriff’s sale in this case was a public auction at which Park Solutions was the high bidder.

“OCGA § 48-5-2 (.1) expressly defines an arm’s length, bona fide sale to include those types of transactions where the seller might suffer a financial loss[,] including distress sales ... or sales at public auction[ ].” CPF Investments v. Fulton County Bd. of Assessors, 330 Ga. App. 744, 749 (769 SE2d 159) (2015) (punctuation omitted). Here, because the sheriff’s sale of the subject property was a distress sale and public auction, it was an arm’s length, bona fide sale under the plain terms of OCGA § 48-5-2 (.1). Consequently, the board of tax assessors could not “assess the property at a higher value in the year following that sale, regardless of whether the [bjoard believe[d] the sale price reflect [ed] the actual fair market value of a property.” CPF Investments, supra at 747, n. 4. The trial court’s findings to the contrary with regard to the sheriff’s sale in this case were erroneous and must be reversed. Compare Ballard, supra at 525 (holding that a tax sale purchaser receives only a defeasible fee interest and since fair market value “is not defined as the amount a buyer would pay to purchase, and [a] willing seller accept, for a defeasible interest in property, a tax sale does not qualify as an arm’s length, bona fide sale such that the one-year freeze of OCGA § 48-5-2 (3) would apply”) (emphasis in original).

2. Parties to the sale.

The trial court also found that the sheriff’s sale was not an arm’s length transaction under OCGA § 48-5-2 (.1) because the parties to the 2013 sheriff’s sale were DRST and Park Solutions and those parties were related in that the president of DRST and the manager of Park Solutions were, respectively, father and son. However, regardless of the relationship between the father and son and the respective corporate entities, the factual premise of the trial court’s ruling is flawed because DRST was not a party to the sale.

As the sheriff’s deed plainly shows, the parties to the sale were the sheriff as the grantor, acting in his official capacity on behalf of the property owners, and Park Solutions as the grantee after being the highest bidder for the property at the public auction. See Associates Financial Svcs. Co. v. Johnson, 128 Ga. App. 712, 713 (197 SE2d 764) (1973) (sheriffs who are legally authorized to make sales at a public outcry represent the sellers of the property). Thus, contrary to the trial court’s finding, DRST simply was not a party to the sheriff’s sale, which instead was an arm’s length sale between the unrelated and unaffiliated parties of the grantor sheriff and the grantee Park Solutions. Accordingly, the trial court’s finding that the transaction was not an arm’s length sale was erroneous. “In light of the foregoing [errors], the [final] order of the trial court ... is reversed.” CPF Investments, supra at 750.

Decided March 23, 2016 —

Reconsideration denied April 14, 2016.

CTB Law Firm, C. Terry Blanton, for appellant.

Shaheem M. Williams, Mark A. Thompson, for appellee.

Judgment reversed.

Ellington, P. J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).