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 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.
