FIRST DIVISION BROWN, C. J., BARNES, P. J., and WATKINS, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
September 24, 2025
In the Court of Appeals of Georgia A25A1254. BROWN et al. v. KOI POND CRICKETS, LLC et al.
BARNES, Presiding Judge.
In this case arising from a family dispute over ownership and access to certain
residential property, Thomas Clayton Brown, III and Mary Brown Sapp (collectively,
“Respondents”) appeal from the trial court’s final order granting the petition for an
equitable partition and sale of the property filed by Koi Pond Crickets, LLC (“KPC”),
a company owned by their brother, David Nelson Brown (“David”). The
Respondents contend that the trial court erred by (1) awarding an equitable partition
when statutory partition procedures provided an adequate remedy at law; (2) denying
them an opportunity to buy out KPC’s interest in the property in accordance with
OCGA § 44-6-166.1 and otherwise failing to adequately consider and protect their interests as cotenants; (3) granting David sole discretion to select the real estate agent
who would list and sale the property; and (4) failing to require judicial confirmation
of the sale when the property is sold. For the reasons discussed below, we affirm.
Following a bench trial, we view the evidence in the light most favorable to the
trial court’s ruling. Sitterli v. Csachi, 344 Ga. App. 671, 671 (811 SE2d 454) (2018). So
viewed, the evidence1 showed that the Respondents, David, and Francine Stilwell
Brown (“Bebe”) are siblings who were involved in a multi-year dispute over the
disposition of their mother’s estate. Among other assets, the estate included the
residential property located at 550 South Hill Street in Griffin, Georgia (“Property”).
The Property sits on less than an acre of land; includes a main house, a guest house,
1 At the bench trial and in its final order, the trial court noted that it also considered the evidence and testimony presented at the prior hearing conducted on the Respondents’ motion for an interlocutory injunction, which the trial court had denied. The parties did not object at the trial and have not challenged on appeal the trial court’s consideration of that evidence and testimony as part of its final ruling on the merits. See OCGA § 9-11-65 (a) (2) (stating that “any evidence received upon an application for an interlocutory injunction which would be admissible upon the trial on the merits shall become a part of the record on the trial and need not be repeated upon the trial”); Ga. Canoeing Assn. v. Henry, 263 Ga. 77, 77 (428 SE2d 336) (1993) (explaining that in a bench trial, the trial court may consider “evidence which was heard in connection with the interlocutory injunction and any additional evidence which [the parties] wish[ ] to present”). We have therefore taken into account evidence from the interlocutory injunction hearing in our recitation of the facts and our review of the enumerations of error. 2 a swimming pool, and a jacuzzi; and is one of several historic homes in the
neighborhood. The Property was the siblings’ childhood home and was in need of
renovation and repair. The mother’s estate also included the adjacent residential
property located at 554 South Hill Street (“Adjacent Property”). The properties are
approximately 20 feet apart.
The siblings ultimately attended mediation and settled their dispute over their
mother’s estate, and the terms of their agreement were made part of a consent final
order entered in January 2023 (“Consent Order”). Under the Consent Order, David
was granted sole ownership of the Adjacent Property, while the Respondents and Bebe
were granted ownership of the Property “as tenants in common with each holding an
undivided one third (1/3) interest therein.”
After entry of the Consent Order, a dispute arose between the Respondents and
Bebe over payments for some of the repairs to the Property. Because of the dispute,
Bebe decided to sell her interest in the Property, and she first offered to sell it to the
Respondents, but they were unable to agree on a price. Bebe then offered to sell her
interest to David, and they reached an agreement for him to purchase it for $100,000.
The sale was consummated in August 2023 through a quitclaim deed from Bebe to
3 David. The same day, David formed KPC and conveyed his interest in the Property
to KPC by quitclaim deed. David is the sole member of KPC.
The Respondents lived elsewhere, but they periodically traveled to Griffin and
visited the Property. David lived next door on the Adjacent Property and sometimes
would enter the Property. After KPC obtained its ownership interest, the Respondents
became embroiled in an ongoing, bitter dispute with David over access and control of
the Property. The Respondents installed multiple security cameras around the
Property to maintain surveillance, including a camera pointed at David’s residence;
erected fences and locked gates to hinder David’s access to the Property; and
communicated with David using language that the trial court described as “patently
offensive.” Additionally, the Respondents called the police and fire departments on
David many times, and they pressed criminal charges against him for the alleged theft
of their personal property from the Property that remained pending at the time of the
bench trial. In response, David covered and removed some of the security cameras and
unplugged and removed two internet routers; turned off the power; broke a window
to gain access to the Property; and refused (either individually or through KPC) to pay
one-third of the property taxes, utility expenses, and homeowners’ insurance. David
4 also filled the jacuzzi with koi fish, plants, and rocks, and he placed notes around the
Property accusing the Respondents of never visiting their “sick and dying mother.”
David proposed having the Respondents buy out KPC’s interest in the Property
or having KPC buy out their interests, but no agreement was reached. In September
2023, KPC filed its petition against the Respondents seeking an equitable partition and
sale of the Property. The Respondents filed an answer in which they opposed KPC’s
request for an equitable partition and asserted several counterclaims. Among other
counterclaims, the Respondents sought an accounting between cotenants based on the
expenses they had incurred and the improvements they had made to the Property. The
Respondents also asserted a counterclaim to set aside and cancel the quitclaim deeds
conveying an interest in the Property to David and KPC, alleging that David’s
purchase of Bebe’s interest in the Property violated the Consent Order and that David
was the alter ego of KPC. Additionally, the Respondents requested that David be
joined as a necessary party in light of their counterclaims. During the course of the
litigation, the Respondents also asserted that if the trial court ultimately determined
that a partition of the Property was necessary, they should be afforded an opportunity
5 to buy out KPC’s interest in the Property under Georgia’s statutory partition
procedures.
After a bench trial at which the four siblings testified, the trial court entered a
detailed final order in which the court, among other things, added David as a
counterclaim defendant; granted KPC’s request for an equitable partition and sale of
the Property; denied the Respondents’ counterclaims for an accounting and for the
setting aside and cancellation of the quitclaim deeds; ordered KPC to pay to the
Respondents its pro rata share of the past-due property taxes, utility costs, and
homeowners’ insurance and to continue paying its share of those expenses until the
sale of the Property; and ordered David to return the jacuzzi area to its prior condition
by removing the koi fish, plants, and rocks. To facilitate the sale of the Property, the
trial court ordered David to select a licensed real estate agent to list and sell the
Property, and the court further specified that the agent would have authority to accept
“any commercially reasonable offer that is presented that, in the [a]gent’s sole
discretion, reflects an appropriate market value for the Property.” This appeal
followed.
6 1. The Respondents contend that the trial court erred in granting an equitable
partition of the Property because Georgia’s statutory partition procedures provided
an adequate remedy at law.
Georgia law distinguishes between an “equitable” partition, OCGA § 44-6-140
et seq., and a “statutory” partition, OCGA § 44-6-160 et seq. Pack v. Mahan, 294 Ga.
496, 496 (755 SE2d 126) (2014). But even in a statutory partition, the trial court “may
frame its proceeding and order so as to meet the exigency of the case without forcing
the parties into equity.” OCGA § 44-6-170. Consequently, “proceedings for a
statutory partition sometimes partake of the nature of proceedings in equity,” and this
permits “certain equities between tenants in common to be taken into consideration
in making a partition.” (Citations and punctuation omitted.) Pack, 294 Ga. at 497.
Nevertheless, “[t]he allowance for certain equitable considerations in statutory
partitions . . . was not intended to make the statutory proceeding a substitute in all
cases for partition by a court with equitable cognizance, or to deal with all the rights
which might be asserted in every case by an equitable proceeding,” as the Georgia
Code separately “preserves the right of equitable partition.” (Citations and
punctuation omitted.) Pack, 294 Ga. at 497. See OCGA § 44-6-140 et seq. While
7 statutory partition ordinarily provides an adequate remedy at law, “[e]quity has
jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar
circumstances render the proceeding in equity more suitable and just.” OCGA § 44-6-
140. See Pack, 294 Ga. at 497.
The trial court committed no error in determining that an equitable partition
of the Property was appropriate. One of the peculiar circumstances that can render a
proceeding in equity more suitable and just is where there is “a need to adjust the
accounts or claims of the cotenants.” Pack, 294 Ga. at 497. This includes necessary
adjustments to address expenditures of a cotenant for improvements to the property,
taxes, or other expenses. See Baker v. Baker, 242 Ga. 525, 525-526 (250 SE2d 436)
(1978). While the trial court denied the Respondents’ counterclaim for a full
accounting of the amount due them for all of the expenses they incurred and
improvements they made to the Property, the court adjusted the accounts and claims
of the cotenants to some degree by determining that KPC had failed to pay its pro rata
share of the property taxes, utility costs, and homeowners’ insurance for the Property,
ascertaining the amount of those expenses that had been paid by the Respondents, and
requiring KPC to reimburse the Respondents for its pro rata share of those payments.
8 Equity jurisdiction existed in light of the trial court’s determination that there was a
need for such adjustments. See Pack, 294 Ga. at 497. See also Evans v. Little, 246 Ga.
219, 220 (271 SE2d 138) (1980) (“Equity jurisdiction shall extend to accounts between
tenants in common.”) (citation and punctuation omitted).
Another peculiar circumstance justifying a proceeding in equity is where the
trial court is called “upon to settle the rights of collaterally interested parties brought
into the proceedings as defendants.” Pack, 294 Ga. at 497, quoting 3A K. Morgan
Varner III & Robert H. Turner III, Ga. Jurisprudence Property § 33:13. See Grimes v.
Little, 56 Ga. 649 (1876). That circumstance existed here, where David was added as
a third-party defendant, and when the trial court was called upon by the Respondents
to resolve whether the quitclaim deeds conveying an interest in the Property to David
and KPC should be set aside and canceled, and thus whether David individually or
through KPC held a valid ownership right in the Property. Moreover, the trial court
addressed and resolved what responsibilities David had to restore the jacuzzi to its
prior condition.
The intense family conflict at the center of the parties’ property dispute and the
complications caused by the existence of adjacent properties owned by the parties
9 created another peculiar circumstance justifying an equitable petition. Statutory
partition procedures, namely OCGA § 44-6-166.1, would have afforded the
Respondents an opportunity to buy out KPC’s interest in the Property, with the
potential result that the Respondents and David (who lived on the Adjacent Property)
would remain neighboring property owners. See Stone v. Benton, 258 Ga. 539, 540 (371
SE2d 864) (1988) (explaining that “[t]he legislature added [OCGA §] 44-6-166.1 [to
the statutory partition procedure] in order to give a party in interest the opportunity
to purchase the land before a public sale is ordered”). However, in its final order, the
trial court found that “this is one of the more contentious disputes it has ever had the
occasion to preside over” and that “all parties to this dispute have behaved in a way
that is utterly childish.” The trial court further found that the Property and Adjacent
Property were in close proximity to one another and rejected the Respondents’
contention that “they could peaceably own [the] Property” next door to David if they
were permitted to buy out KPC’s interest. Given the ongoing, heated family dispute
over the Property, the trial court was authorized to find that continued ownership by
one or more of the siblings would necessarily invite further discord, such that a
proceeding in equity was justified.
10 Based on the foregoing circumstances, the trial court did not err in granting an
equitable rather than statutory partition of the Property.
2. The Respondents contend that even if the trial court was authorized to award
an equitable partition, the court abused its discretion by denying them an opportunity
to buy out KPC’s interest in the Property in accordance with OCGA § 44-6-166.1 and
by otherwise failing to adequately consider and protect their interests as cotenants.
“Equitable relief is generally a matter within the sound discretion of the trial
court and should be sustained on review where such discretion has not been abused.
The findings of fact on which a court relies in fashioning an equitable remedy will not
be disturbed unless clearly erroneous.” (Citations and punctuation omitted.)
O’Connor v. Bielski, 288 Ga. 81, 82 (1) (701 SE2d 856) (2010). We discern no abuse
of discretion by the trial court here.
(a) As to whether the trial court should have applied OCGA § 44-6-166.1, the
Respondents point to the general principle that “equity follows the law where the rule
of law is applicable and follows the analogy of the law where no rule is directly
applicable.” OCGA § 23-1-6. Based on this general principle, the Respondents argue
that even if the trial court was entitled to proceed with an equitable partition, the court
11 should have followed the statutory “buy out” procedures set out in OCGA § 44-6-
166.1. We disagree. The Respondents’ argument would collapse the statutory
distinction between equitable and statutory partitions by requiring the same
procedures in both types of proceedings. “As OCGA § 44-6-166.1 is a statutory
remedy which is part of a partitioning at law, the trial court did not err in failing to
follow its procedures” because “the concept of equitable partitioning encompasses
the need for flexibility in fashioning a remedy.” (Citation and punctuation omitted.)
Chaney v. Upchurch, 278 Ga. 515, 516 (2)(603 SE2d 255) (2004).
(b) As to the whether the trial court otherwise failed to adequately consider and
protect the Respondents’ interests, the court acted within its broad discretion in
weighing the equities and fashioning a remedy under the unique facts of this case. The
trial court in its detailed final order took into account the sequence of events and the
ongoing acrimonious interactions between the siblings, and the court concluded that
it would be most equitable to the parties to have the Property partitioned and sold by
a real estate agent on the open market to eliminate the continued friction of having the
siblings retain ownership in adjacent properties. And while the Respondents testified
that they believed they could live without further incident next to David if they were
12 permitted to buy out KPC’s interest in the Property, the trial court was not required
to credit their testimony in light of the siblings’ long history of litigation and
infighting. See O’Connor, 288 Ga. at 83 (1) (noting that the trial court is the “proper
tribunal for deciding . . . the credibility of the witnesses”) (citation and punctuation
omitted). Moreover, the trial court took additional steps to protect the Respondents’
interests by requiring KPC to pay to the Respondents its pro-rata share of the past-due
property taxes, utility expenses, and homeowners’ insurance and to continue paying
its one-third share of those costs until the sale of the Property, and by ordering David
to restore the jacuzzi to its prior condition. In so weighing the equities and fashioning
these remedies, the trial court acted within its broad discretion to “mold its decree to
meet the general justice and equity of each cotenant.” OCGA § 44-6-141. See Bagwell
v. Trammel, 297 Ga. 873, 877 (3) (778 SE2d 173) (2015) (noting that a trial court in an
equitable partition proceeding “has broad discretion to consider all of the
circumstances” in crafting a suitable and just result).
Furthermore, the Respondents’ argument that the trial court failed to
sufficiently take into account their interests is predicated on their misreading of the
Consent Order. According to the Respondents, David violated the Consent Order by
13 acquiring Bebe’s interest in the Property, transferring his interest to his newly formed
limited liability company KPC, and then seeking a partition of the Property. In support
of their argument, the Respondents emphasize that the Consent Order included a
provision stating that the siblings “release and forever discharge each other from any
and all claims or liability that he or she may have against any other of them arising out
of this litigation or this . . . Consent Order or involving any of the assets of [their
mother] or her estate.”
“[A] consent order is essentially a binding agreement of the parties that is
sanctioned by a court, and it is subject to the rules governing the interpretation and
enforcement of contracts.” City of Centerville v. City of Warner Robins, 270 Ga. 183,
186 (3) (508 SE2d 161) (1998). And it is axiomatic under the rules of contract
construction that a contractual provision must be read “in light of the contract as a
whole and in the legal context in which it was created.” Langley v. MP Spring Lake,
307 Ga. 321, 325 (834 SE2d 800) (2019). As the trial court reasoned, the clear intent
from the language of the Consent Order as a whole was to resolve the dispute among
the siblings in their prior litigation over their mother’s estate, and once the Consent
Order was effectuated and the mother’s assets were distributed to the siblings, those
14 assets no longer belonged to the estate, and the siblings “stood in the same position
as any other property owner.” Moreover, nothing in the language of the release
provision restricted a sibling’s use or sale of property once it became his or her own.
The trial court therefore properly concluded that David’s actions did not contravene
the Consent Order.
3. The Respondents next contend that the trial court abused its discretion by
granting David sole discretion to select the real estate agent who would list and sell the
Property. Again, however, a trial court awarding an equitable partition has broad
authority to “mold its decree to meet the general justice and equity of each cotenant,”
OCGA § 44-6-141, and to take into account the totality of the circumstances in
fashioning relief. See Bagwell, 297 Ga. at 877 (3). The evidence showed that David had
previously worked in the real estate industry and was familiar with the local housing
market, had bought and sold properties in the county, and had remodeled houses.
Additionally, David, unlike the Respondents, lived near the Property. And the
acrimonious relationship between the siblings pointed to the potential difficulty in
requiring any joint decision-making over selection of a real estate agent. Under these
15 circumstances, the trial court acted within its discretion in authorizing David to
choose the real estate agent who would list and sell the Property.
4. Lastly, the Respondents argue that the trial court erred by failing to require
judicial confirmation when the Property is sold and instead granting the real estate
agent sole discretion to determine and accept any “commercially reasonable offer”
reflecting “an appropriate market value for the Property.” It is true, as KPC concedes
on appeal, that “sales under decrees in equitable partition proceedings are . . . subject
to confirmation.” Pack, 294 Ga. at 500, n. 2. See OCGA § 23-4-35 (“Sales under
decrees in equity shall be subject to confirmation by the judge, who has a large
discretion vested in him in reference thereto. Such sales shall not be consummated
until confirmed by him.”). But “[a] trial court is presumed to have followed the law
in rendering a decision, unless and until that presumption is rebutted.” Love v. Fulton
County Bd. of Tax Assessors, 348 Ga. App. 309, 315 (1) (821 SE2d 575) (2018).
The trial court’s final order is silent regarding the need for judicial confirmation
after the real estate agent accepts an offer to purchase the Property, and the order does
not prevent any of the parties from seeking confirmation once a contract for sale has
been executed. “In the absence of any explicit ruling by the trial court we cannot
16 assume that it improperly applied the law in the manner posited by the
[Respondents].” (Citation and punctuation omitted.) Dixon v. State, 350 Ga. App.
211, 214 (1) (828 SE2d 427) (2019). The Respondents have “failed to point to any
affirmative evidence of an error, [and] we will not rely on speculation. Instead, we will
rely on the presumption in favor of the regularity and legality of all proceedings in the
trial court.” (Citation and punctuation omitted.) Lundy v. Hancock County, 368 Ga.
App. 772, 774 (1) (890 SE2d 92) (2023). Because we presume that the trial court
intended for any sale of the Property to require judicial confirmation, the Respondents
have failed to show a basis for reversal.
Judgment affirmed. Brown, C. J., and Watkins, J., concur.