text:
    A00A2081.
    BOGLE v. BRAGG et al.
    (548 SE2d 396)
   Phipps, Judge.

Joe Bogle sued Chestatee Minerals, Inc., a mining company; directors John Bragg, Ian Bragg, David Bragg, and Nancy Koppes; and corporate attorney Kenneth Antley for damages arising out of his failed investment in Chestatee. The trial court granted summary judgment to the defendants, and Bogle appeals. We affirm for reasons which follow.

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.*

On appeal of the grant of summary judgment, we must determine whether the trial court erred in concluding that no genuine issue of material fact exists and that the defendants were entitled to summary judgment as a matter of law. Defendants may prevail “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Our review is de novo.

Viewed in the light most favorable to Bogle as the nonmoving party, the record shows that in April 1996, Bogle met with attorney Antley in connection with a possible hotel franchise investment. Bogle gave Antley a $2,000 retainer check, but told him not to perform any legal work until he had secured a loan. Antley returned the retainer when the investment fell through. Antley and Bogle spoke a few months later, and Antley told Bogle about another investment opportunity.

Bogle had worked in the mining industry as a director of operations for Buckhorn Minerals, Inc. Antley informed Bogle that Chestatee was looking for investors and a plant manager. Bogle was familiar with Chestatee from his work with Buckhorn and expressed interest. Antley told Chestatee principals John Bragg and Ian Bragg about Bogle, and Ian Bragg called Bogle and arranged a meeting. At the meeting, John Bragg, Ian Bragg, and Bogle discussed Chestatee’s potential, Bogle’s background, the possibility of Bogle’s employment with Chestatee, and a possible investment by Bogle in Chestatee.

The Braggs told Bogle that Chestatee mined high-quality talc and that the only comparable source was in the northeast. They told him that Chestatee was currently profitable, although it had suffered losses in the past. Bogle was interested in the plant manager position and agreed to an annual salary of $40,000. The Braggs told Bogle that he could buy stock in Chestatee at $18.75 a share. Bogle offered to draw up an agreement to cover both his employment and a stock purchase.

Bogle drafted a Terms of Employment and Stock Purchase Agreement, dated August 6, 1996 (the Purchase Agreement). Under the draft Purchase Agreement, Chestatee agreed to hire Bogle as its operations manager. Either party could terminate Bogle’s employment relationship with three months prior notice. Bogle agreed to purchase 3,000 shares of Chestatee stock for $56,250. Chestatee agreed to redeem Bogle’s stock upon 30 days prior notice.

On August 7,1996, Bogle, his wife, and Ian Bragg met to discuss the Purchase Agreement. Before the meeting, Bogle spoke with Antley, and, at his suggestion, Bogle made handwritten revisions to the Purchase Agreement to reflect that the Chestatee stock was redeemable “at the prevailing stock price, but not less than the original contribution of $56,250.” Ian Bragg told Bogle that a Chestatee financial statement would be ready in a few days and that Bogle would receive it in due course. On behalf of Chestatee, Ian Bragg executed the Purchase Agreement with Bogle at the August 7 meeting, and Bogle tendered the stock purchase price. Bogle also executed a Subscription Agreement in which, among other things, he acknowledged “receipt of any and all information related to [Chestatee], its property, including its real property, and its proposed mining operations, and which [Bogle] considers necessary or appropriate for deciding whether to purchase the [stock].” He also acknowledged that he was capable of evaluating the merits and risks of the investment.

Bogle began work at Chestatee on August 8, 1996. On August 14, Bogle and Ian Bragg reexecuted the Purchase Agreement, which was retyped to reflect the handwritten changes to the document executed on August 7.

On September 17, 1996, Bogle asked that Chestatee redeem his stock at the original $56,250 purchase price, but his stock was never redeemed. On October 14, 1996, Bogle submitted a letter of resignation. On December 4, 1996, Bogle sued Chestatee for breach of contract. Chestatee filed for Chapter 11 bankruptcy on June 26, 1997. On January 20, 1998, Bogle brought this suit against the defendants for common law fraud, securities fraud, and corporate waste.

1. Fraud has five elements:
(1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.
Nancy Koppes and David Bragg

Bogle did not meet, speak to, or correspond with Koppes or David Bragg before the stock purchase. As there was no communication, there could be no misrepresentation by these defendants. Bogle’s claim of fraud against Koppes and David Bragg must fail, and the trial court did not err in granting summary judgment to Koppes and David Bragg on this count.

John Bragg and Ian Bragg

Bogle argues that John Bragg and Ian Bragg made a number of false representations in connection with his purchase of Chestatee stock. These include: (1) Ian Bragg’s representation to Bogle’s wife that Bogle could get the stock purchase money back at any time; (2) their representation to him that the proceeds of the stock purchase were to be used for “reorganizational working capital,” but the money was never used as working capital; (3) Ian Bragg’s never-fulfilled promise to give Bogle financial information on Chestatee; (4) the Subscription Agreement provision that Chestatee was in the organizational stages and had no operational history, although the corporation had been conducting business for four years; and (5) the Subscription Agreement disclosure of a $165,000 lien against Chestatee’s real property when there were additional undisclosed liens against the real property and security interests in corporate personal property. Bogle also claims that John Bragg and Ian Bragg committed fraud by failing to disclose material information.

Actionable fraud cannot be based on statements and promises as to future events, except that fraud may be predicated on a promise made with a present intention not to perform. With respect to Ian Bragg’s representation that Chestatee would refund Bogle’s investment at any time, the Purchase Agreement provides for a redemption of Bogle’s stock by Chestatee at no less than the original subscription price. To support a present knowledge on the part of Ian Bragg that Chestatee would not honor its contractual commitment, Bogle points to Chestatee’s financial condition. There is evidence that Chestatee defaulted on a note in the past and faced possible litigation in the future. But Chestatee was an operating corporation, it continued to operate after Bogle left, and it is not shown that Chestatee was Ian Bragg’s alter ego. Ian Bragg’s representation regarding Chestatee concerns the future actions of a third party and cannot be fairly characterized as made with the present intent to cause Chestatee not to redeem Bogle’s stock.

Although Bogle charges that proceeds of his stock purchase were not used for “reorganizational working capital,” Bogle has not presented evidence to that effect. The record indicates Bogle’s investment money was paid to Chestatee, and there is nothing to support an allegation that the funds were wrongfully diverted to any of the defendants.

With respect to the representations in the Subscription Agreement regarding the operational history of Chestatee and the liens on its real property, even if these statements can be considered material misrepresentations, Bogle cannot show that he was justified in relying upon them. In order to establish justifiable reliance, Bogle must show that he exercised due care to discover the fraud. Bogle knew that Chestatee had an operational history, because he had business dealings with the company when he was an officer with Buckhorn Minerals. The liens on the corporate property were a matter of public record. “In the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations [;] failure to do so will bar an action based on fraud.”

Although Bogle maintains that the Braggs promised to provide financial statements for Chestatee which were never delivered, it was his choice to proceed with the stock purchase without them. And in the Subscription Agreement Bogle agrees that he received “any and all information relating to [Chestatee], its property, . . . and its proposed mining operations, and which [Bogle] considers necessary or appropriate for deciding whether to purchase the Securities.” Bogle also “acknowledge [d] that he [had] been afforded access to all financial and other information relating to [Chestatee].”

Bogle argues that John Bragg and Ian Bragg fraudulently failed to disclose material information about Chestatee, including its unprofitability and litigation status. Bogle can point to evidence that Chestatee had been in default on a note in the past and faced possible future litigation. This is not inconsistent with representations made by John Bragg and Ian Bragg to Bogle before the stock purchase that Chestatee had struggled in the past. And Bogle cannot show that Chestatee was unprofitable at the time he discussed the stock purchase with John Bragg and Ian Bragg.

We note that neither John Bragg nor Ian Bragg had a special duty to Bogle to make disclosures about Chestatee. Suppression of a material fact is fraud only if there is a duty to disclose arising from a fiduciary relationship or the particular circumstances of the case.* Although they were directors of Chestatee, the Braggs did not have a fiduciary duty to Bogle at the time the Purchase Agreement was negotiated. This was an arm’s length transaction between persons experienced in the mining business. Bogle refers us to King Mfg. Co. v. Clay, which involved an alleged scheme by two directors to buy stock from existing shareholders under false pretenses. The facts are dissimilar, and the analysis touching on the duty of a director to existing shareholders is inapposite because Bogle was not a shareholder when the alleged fraudulent transaction occurred.

We find other authority presented by Bogle to be unpersuasive as well. In Vaughan v. Oxenborg, the plaintiff claimed that defendants had set up an elaborate scheme to divert the plaintiff’s stock purchase funds for their own use. There is no evidence that Bogle’s investment proceeds were converted by the defendants. And Adkins v. Lee is distinguishable because the defendant concealed the corporation’s financial condition and caused it to issue the plaintiff nonvoting stock rather than the promised voting stock.

For the foregoing reasons, the trial court did not err in granting summary judgment to John Bragg and Ian Bragg on Bogle’s claim of fraud.

Kenneth Antley

Bogle testified that Antley put him in touch with the Braggs and that Antley told him “about what a safe investment [Chestatee] would be and what a fine family the Braggs were.” This was a statement of opinion, and Bogle was not entitled to rely upon it as a statement of fact.

Bogle also contends that Antley was familiar with Chestatee’s financial problems and that, because Antley stood in a fiduciary relationship with him, Antley fraudulently failed to disclose this material adverse information. But Bogle has not presented evidence which would authorize a finding that Antley had a fiduciary duty to Bogle with respect to Bogle’s investment in Chestatee.

A relationship is confidential when “one party is so situated as to exercise a controlling influence over the will, conduct, or interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” OCGA § 23-2-58. “[T]he mere fact that one reposes trust and confidence in another does not create a confidential relationship. ... [A] confidential and fiduciary relationship . . . must be shown by proof, and the burden is upon the party asserting the existence of such relationship to affirmatively show the same.”

The record indicates that while Bogle met with Antley concerning another investment, Antley did not do any legal work for him and was not paid any money. Bogle did not ask Antley to represent him in connection with the purchase of Chestatee stock. Bogle talked to Antley about the Purchase Agreement Bogle had drafted, but Antley told Bogle that he represented Chestatee’s interests in that transaction.

We find that the trial court did not err in granting summary judgment to Antley on Bogle’s claim of fraud.

Civil Conspiracy

Bogle claims that the defendants entered into a civil conspiracy to defraud him. “A civil conspiracy has been defined as a combination between two or more persons to do some unlawful act which is a tort. . . .” The record does not support a conspiracy among the defendants to commit an unlawful act.

2. Bogle claims the defendants committed securities fraud under OCGA § 10-5-12 (a) (2). But we have found no evidence of fraud in the stock purchase transaction, and Bogle does not present an argument for the existence of securities fraud separate from the transaction considered in Division l. We find the trial court did not err in granting summary judgment to the defendants on Bogle’s claim of securities fraud.

3. Bogle’s complaint asserts that John Bragg, Ian Bragg, David Bragg, and Koppes, acting as corporate directors, mismanaged Chestatee. This is an action for corporate waste and, as such, is a derivative action that must be maintained by Bogle as a shareholder for the benefit of the corporation and not for his individual benefit. The trial court correctly ruled that Bogle had no standing to assert this claim.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.

Decided March 15, 2001.

Marvin P. Nodvin, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert G. Tanner, Garland, Samuel & Loeb, Robin N. Loeb, Anne Coolidge-Kaplan, for appellees.

        Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).

        Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

       Bogle’s original draft of the Purchase Agreement provided that his stock was redeemable at par value.

       (Citations and punctuation omitted.) Reeves v. Edge, 225 Ga. App. 615, 617-618 (2) (484 SE2d 498) (1997).

        Wheeling v. Ring Radio Co., 213 Ga. App. 210, 211 (444 SE2d 144) (1994).

        Ga. Farm &c. Ins. Co. v. Allen, 228 Ga. App. 607, 608 (492 SE2d 339) (1997).

       See Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989).

       (Citation and punctuation omitted.) Nicholson v. Harris, 179 Ga. App. 35, 37 (3) (345 SE2d 63) (1986).

       OCGA § 23-2-53.

       216 Ga. 581 (118 SE2d 581) (1961).

       105 Ga. App. 295 (124 SE2d 436) (1962).

       127 Ga. App. 261, 263 (1) (193 SE2d 252) (1972).

        Buckner v. Mallett, 245 Ga. 245, 246 (1) (264 SE2d 182) (1980).

       (Citations omitted.) Allen v. Hub Cap Heaven, 225 Ga. App. 533, 537 (4) (484 SE2d 259) (1997).

       (Citations and punctuation omitted.) Sofate of America v. Brown, 171 Ga. App. 39, 40 (1) (318 SE2d 771) (1984).

       See William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 633 (1) (c) (466 SE2d 872) (1995).

       OCGA § 14-2-831. See Pickett v. Paine, 230 Ga. 786, 790 (1) (199 SE2d 223) (1973).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A0342. A01A0343.
    BOOKER v. HALL. BREMER et al. v. HALL.
    (548 SE2d 391)
   Eldridge, Judge.

In Case Nos. A01A0342 and A01A0343, appellants-defendants Randall S. Booker and William J. Bremer, as executor under the last will and testament of Mary J. Bremer, his mother, respectively, appeal from the superior court’s decree in equity setting aside a deed by which Bremer sold certain oceanfront property to Booker in violation of an alleged prior right of first refusal in favor of appelleeplaintiff Stephen R. Hall. By its decree, the superior court further granted Hall specific performance of the right of first refusal as to the property in issue located on Tybee Island’s Strand, which Hall exercised to obtain title to Lots 4 and 5. Defendants first filed the instant appeals in the Supreme Court of Georgia. On October 2, 2000, the Supreme Court transferred each appeal to this Court in that the grant of equitable relief was merely ancillary to underlying issues of law, i.e., whether the trial court properly construed a contract for the sale of land. See Lee v. Green Land Co., 272 Ga. 107 (527 SE2d 204) (2000). Pertinently the facts are as follows.

On March 23, 1994, Bremer acting as attorney-in-fact for his mother, Mary Bremer, entered into a land sales contract with Hall (“contract”). Under the contract, Bremer sold Lot 3 of Beach Lot 75 in the Strand to Hall. The purchase price was $135,000 and included the cottage on the property, known as the “Old Bremer House.” Mary Bremer also owned Lots 4 and 5 of Beach Lot 75. These lots were located immediately to the east of Lot 3, separating the Old Bremer House from the Atlantic Ocean. As part of the sales transaction, Hall sought and Bremer gave a contractual future purchase right in Lots 4 and 5 or, in the event of inability to exercise such right of purchase, a share in profits over $225,000 upon a sale of the lots to a third party or parties. Pertinently, the operable language was as.follows:

SPECIAL STIPULATIONS: The following special stipulations and any addenda, if in conflict with any printed matter in this Agreement, shall control and take precedence over such printed matter. The following provisions will survive the closing on Lot 3/Old Bremer House and remain in effect as option to purchase Lots 1 and 2 as follows:
[a. Hall’s stipulations.]
1. Purchaser(s) shall have the first right of refusal on the purchase of both Lots [4] and [5] (hereinafter referred to as “front lots”); 2. If a contract for sale containing an offer on the front lots is offered to seller prior to two years after the closing on Lot 3, then the purchaser(s) shall at that time have the option to purchase said lot or lots for some price equal or exceeding the offer received by the seller at that time. The payments for said lot or lots, however, shall be extended over a period of two years following the closing between purchaser and seller on the front lots. If at that time the purchaser(s) is unable to match or exceed the offer received by the seller on either or both front lots and the seller sells both lots for a sum greater than $225,000.00, then seller will split the excess over and above $225,000.00 with the purchaser. If the seller sells both Lots [4] and [5] on separate occasions, then the seller will still pay the purchasers) the sum received for both lots in excess of $225,000.00, this amount being due on the sale of the last lot sold; 3. Purchaser(s) shall have an option to purchase both Lots [4] and [5] at some later time for a reasonable sum. Purchaser(s) will pay $500.00 to retain said option at the time of the closing of Lot 3, 12 th Terrace [;]
[b. Bremer’s Stipulations.]
4. Furniture does not convey with the house[;] 5. Seller will have first right of refusal when purchaser sells house [; and] 6. Purchaser has right to maintain and have access [through] Lots [4] and [5].

On March 2, 1998, Bremer, now acting on behalf of his mother’s estate as executor, conveyed Lots 4 and 5 to Booker without first giving Hall the opportunity to purchase the lots at the same price offered by Booker. Hall filed the instant lawsuit nine days after conveyance of title. Booker had already begun clearing Lots 4 and 5 for building. The superior court denied the motions for summary judgment of the parties, those of Bremer and Booker predicated on claims that Special Stipulation 1 (“right of first refusal”) of the contract was unenforceable for violation of the Statute of Frauds, indefiniteness as to the essential term in contract of price, and expiration of the right of first refusal which must be read as limited to two years. Subsequently, the superior court impaneled an advisory jury in equity, projecting a trifurcated trial. In the first round of the trial, the jury heard parol evidence and was asked to determine if “Hall had proven, by a preponderance of the evidence, (1) the essential elements of a contract, and (2) that the right of first refusal in Stipulation 1 is not restricted to two years.” The jury returned its special verdict answering, ‘Yes.” After conducting a second round of trial without a jury, the superior court issued its decree, finding that the right of first refusal was not unenforceable as subject to a two-year time limitation or for its failure to set out the essential term of price therein. Held:

1. (a) Among the claims of error asserted in both cases, Bremer contends that the superior court erred in failing to find the contract unenforceable as too vague and indefinite as to essential terms. In Georgia, it is settled that an “agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense.” (Citations and punctuation omitted.) Southern Med. Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 291 (2) (454 SE2d 180) (1995). We agree and further conclude that reversal would otherwise be required because: (1) the contract was plain and unambiguous insofar as Special Stipulation 1 thereof afforded Hall a right of first refusal limited to two years duration, and (2) even if the right of first refusal were deemed ambiguous, Hall having drafted Special Stipulations 1-3, any ambiguity would have to be construed against him and the rules of construction requiring all the special stipulations read together.

Hall correctly points to Radio Webs v. Tele-Media Corp., 249 Ga. 598, 599, n. 2 (292 SE2d 712) (1982) for the proposition that “[w]here no price term is stated when the right [of first refusal] is granted, the offer of the third party supplies the terms under which the right of first refusal may be exercised. [Cit.]” See also Shiver v. Benton, 251 Ga. 284, 285 (1) (304 SE2d 903) (1983); Bouy, Hall &c. Assoc. v. Savannah Airport Comm., 256 Ga. 181-182 (1) (345 SE2d 349) (1986). However, that price and payment terms may thus be “supplied” at a future date is not to say that the term triggering a right of first refusal may be supplied as well because the condition precedent to the right to purchase must be stated in writing in the contract with sufficient specificity to be. enforced by specific performance, which includes the time that such option shall be in force and effect.

A preemptive right [or right of first refusal] merely sets a requirement that when the owner decides to sell the person holding the preemptive right must be offered the opportunity to buy. (Emphasis supplied.) See generally 1A Corbin, Corbin on Contracts, § 261.

Hasty v. Health Svc. Centers, 258 Ga. 625, 626 (373 SE2d 356) (1988). In Georgia, the law makes clear that if a right of first refusal is to be complete, the parties must supply the triggering term by agreement that informs the parties when such right is operative. Inherent vagueness in what a decision to sell means can be illustrated by cases showing that the language chosen is outcome determinative of enforceability. Compare id. (right of first refusal triggered upon execution of option contract, the parties having agreed that this would occur when landlord “otherwise” wanted to sell); Hewatt v. Leppert, 259 Ga. 112, 115 (376 SE2d 883) (1989) (option contract’s execution did not trigger the right of first refusal, the parties having agreed that the landlord’s receipt of an acceptable offer would trigger the right).

The right of first refusal Hall seeks to enforce is devoid of any triggering term. As such, it is no more than an unenforceable agreement to agree in the future. “No contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means there is no agreement to be enforced.” (Citations and punctuation omitted.) Reichard v. Reichard, 262 Ga. 561, 564 (2) (423 SE2d 241) (1992).

(b) The foregoing notwithstanding, Hall’s right of first refusal is unenforceable because the plain and unambiguous meaning of the right is limited to two years duration, and the right expired prior to the time Bremer sold Booker Lots 4 and 5 in the instant case. “The cardinal rule of construction is to ascertain the intention of the parties.” OCGA § 13-2-3. The construction of a contract is a three-step process. First, the construction of a contract presents a question of law for the court. If no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. See generally Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986); Karlan, Inc. v. King, 202 Ga. App. 713, 715 (1) (415 SE2d 319) (1992). If the terms of the contract are clear and unambiguous, the court must look to the contract alone to find the intention of the parties. Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169,173 (3) (390 SE2d 257) (1990). Secondly, if ambiguity is determined to exist, the existence or nonexistence thereof is itself a question of law for the court. “A jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the . . . statutory rules of construction.” Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 256 (2) (381 SE2d 322) (1989). Contractual ambiguity is not indicated upon encountering difficulty in construing a contract, unless after the pertinent rules of construction are applied, among them the requirement that a contract be construed as a whole, see OCGA § 13-2-2 (4); Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858) (1993), and uncertainty remains as to which of two or more possible meanings represents the true intention of the parties. Crooks v. Crim, 159 Ga. App. 745 (285 SE2d 84) (1981); Sims’ Crane Svc. v. Reliance Ins. Co., 514 FSupp. 1033 (S.D. Ga. 1981), aff’d, 667 F2d 30 (11th Cir. 1982).

Consistent with the rule that the whole contract should be looked to in arriving at the construction of any part of a contract, OCGA § 13-2-2 (4), Hall chose preambular language which introduced his special stipulations by providing for their collective survival after closing on Lot 3 as an “option to purchase” Lots 4 and 5. Thus, construing Special Stipulations 1 and 2 together, the right of first refusal had a two-year duration. Thereafter, he set out his special stipulations in seriatim. That Special Stipulation 1, the bare bones right of first refusal in issue, and Special Stipulation 2, a stipulation comprehensively providing the price, payment, duration, and triggering terms lacking in Stipulation 1, were separated by a semicolon rather than a period is a clear indication that the parties intended that the latter should modify the former. Moreover, Stipulation 1 is left superfluous and without apparent meaning if read as a right of first refusal not limited in duration in that Special Stipulation 3 provides Hall an option to purchase at “some later time,” presumably after the passage of two years. It would be unreasonable to read the right of first refusal created by Special Stipulation 1 as overlapping an option to purchase. Unlike the right of first refusal, during its term an option to purchase permits its holder to force sale even if the subject property is not otherwise on the market. Compare Hewatt v. Leppert, supra at 114 (option holder may force sale at any time during option); U. S. Enterprises v. Mikado Custom Tailors, 250 Ga. 415, 416 (297 SE2d 290) (1982) (right of first refusal grants no option). Under these circumstances, the superior court erred in finding as a matter of law that Hall’s right of first refusal was ambiguous as susceptible to two separate meanings and in denying the parties’ motions for summary judgment in part upon the finding that “the mere existence of [the right of first refusal which Bremer sought in Hall’s property by his Special Stipulation 5] raises the possibility that the term ‘right of first refusal’ was meaningful to the parties at the time of contracting.”

Absent the two-year time period, a reasonable time period would be set by the rule of contract enforcement. See Shiver v. Benton, supra at 287-288 (1); see also Hinson v. Roberts, 256 Ga. 396, 398 (2) (349 SE2d 454) (1986).

(c) Further, it is undisputed that Hall drafted Special Stipulations 1 through 3. Having found such stipulations ambiguous as a matter of law, the superior court also erred in failing to construe such ambiguity in favor of nondrafter Bremer. OCGA § 13-2-2 (5); Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533 (397 SE2d 692) (1990). Hall argues, however, that the intent of the parties as to the duration of his right of first refusal should be construed in light of OCGA § 13-2-4 Pretermitting whether OCGA § 13-2-4 is a specific rule of construction which should take precedence over the general rule that contracts should be construed against the draftsman, Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586, 593 (4) (337 SE2d 29) (1985), the record does not support Hall’s claim by his brief on appeal that he communicated his understanding of Special Stipulation 1 as unlimited by time to Bremer or of Bremer’s acquiescence therein by silence. Rather the record shows that the matter was “never discussed, ever.” The superior court’s finding of fact to the contrary was likewise error. “[A] judge’s findings of fact will not be disturbed on appeal as long as there is any evidence to support those findings.” Hughes v. Cobb County, 264 Ga. 128, 130 (1) (441 SE2d 406) (1994).

Finally, since the writing at issue lacks the elements needed to create a binding and enforceable contract, neither specific performance nor damages were obtainable based thereon. Stribling v. Ailion, 223 Ga. 662, 664 (2) (157 SE2d 427) (1967); see also First Nat. Bank &c. Co. v. Falligant, 208 Ga. 479, 480-481 (67 SE2d 473) (1951) (specific performance of a contract will not be decreed if only one portion thereof is uncertain and indefinite).

2. In light of our disposition in Division 1, we need not address the remaining enumerations of error.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

Decided March 15,2001

Ronald C. Berry, for appellant (case no. A01A0342).

Portman & Felser, Barnard M. Portman, Paul H. Felser, David A. Webster, for appellants (case no. A01A0343).

Hunter, Maclean, Exley & Dunn, John M. Tatum, for appellee.

       The superior court found that at Bremer’s request Hall added Special Stipulations 4, 5, and 6 to the contract in his own handwriting at closing of the sales agreement, having “dictated” the stipulations he wanted in the contract, Special Stipulations 1-3, to his attorney the previous day.

       Upon the consent of the parties, the superior court equitably reformed the 1994 sales contract to show Lots 4 and 5 as the subject matter of the Special Stipulations, such lots having been misdesignated as Lots 1 and 2 in the Bremer/Hall contract.

       Hall correctly conceded below that Special Stipulation 3 is unenforceable under Georgia law and did not rely on it insofar as he sought specific performance of the right of first refusal.

       OCGA § 13-2-4 provides that “[t]he intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.”

       In the event of conflict, a specific rule of construction takes precedence over a general rule of construction. Alexander v. Steining, 197 Ga. App. 328, 331 (2) (398 SE2d 390) (1990).


text:
    A01A0957.
    WIEDERKEHR v. BRENT et al.
    (548 SE2d 402)
   Eldridge, Judge.

Appellant-plaintiff Jonathan Wiederkehr brought the instant lawsuit against appellees-defendants Edwin Brent and Dale Sweatman seeking damages for injuries sustained after Buster, a seven-year-old horse weighing 900 pounds and described as “spirited,” reared and fell back on Wiederkehr after he mounted the horse. Sweatman had given Wiederkehr permission to ride the horse upon Wiederkehr’s assurances that he was an experienced horseman. In exchange for feeding and watering his aged horse, Jackie, nonresident Brent let Sweatman board Buster for a nominal fee in stables he owned near Sweatman’s home. Wiederkehr resided with a close female companion who rented a farmhouse on the property from Brent.

The state court found Brent and Sweatman to be immune from liability under the Injuries From Equine Activities Act, OCGA § 4-12-1 et seq., under the category “other persons”; the court did not find them “equine activity sponsors” or “equine professionals.” The state court then granted Brent and Sweatman summary judgment. Wiederkehr appeals, contending that the state court erred in granting Brent and Sweatman summary judgment while contemporaneously acknowledging that genuine issues of material fact otherwise remained.

The state court correctly noted that Wiederkehr had not alleged liability in Brent and Sweatman as equine activity sponsors or equine professionals. Neither did Wiederkehr oppose summary judgment by evidence characterizing Brent and Sweatman as equine activity sponsors or equine professionals. Under these circumstances, we find that the grant of summary judgment was proper and affirm. See Speir v. Krieger, 235 Ga. App. 392, 397 (2) (509 SE2d 684) (1998) (on motion for summary judgment under OCGA § 9-11-56, movant defendant may prevail (1) by presenting evidence negating essential element of plaintiff’s claims, (2) by showing that there is no evidence in the record supporting essential element of the case, or (3) by showing a complete defense of immunity as in this case, discharge by the moving party, requiring nonmovant plaintiff to point to specific evidence beyond its pleadings giving rise to a triable issue). Held:

OCGA § 4-12-3 (a) relieves, among others, persons denominated as an “equine activity sponsor,” as an “equine professional,” or as “any other person” from liability arising out of risks inherent to participation in equine activities. However, for either equine activity sponsors and equine professionals to have immunity, OCGA § 4-12-4 (c) requires compliance with the duty to warn, i.e., to place clearly visible signage “on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities,” OCGA § 4-12-4 (a), thereby giving individuals participating in equine activities notice of the professional/sponsor’s immunity from liability in law for injury or death arising out of such activities. OCGA § 4-12-4 (b). On its face, OCGA § 4-12-4 (c) does not extend to “other persons” engaged in equine activities. Other person immunity from liability is complete notwithstanding the failure to warn of the same. OCGA § 4-12-3 (a); see also Davis v. Emmis Publishing Corp., 244 Ga. App. 795, 799 (536 SE2d 809) (2000) (Eldridge, J., concurring specially) (“Where the meaning of a statute is clear, plain, and unambiguous, the courts must construe it according to its terms. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981); Atlanta &c. R. Co. v. Wise, 190 Ga. 254, 255 (1) (9 SE2d 63) (1940).”).

Decided March 15, 2001.

Robert P. McFarland, for appellant.

Webb, Carlock, Copeland, Semler & Stair, David F. Root, Kimberly P. Murphy, Saveli & Williams, John C. Parker, Lisa J. Bucko, for appellees.

Wiederkehr neither alleged nor tendered evidence showing Brent or Sweatman as equine activity sponsors or as equine professionals who had to have warning signs to trigger immunity; both here enjoyed immunity from any liability for Wiederkehr’s injuries as “other persons” engaged in equine activities. Thus, it follows that the grant of summary judgment was proper. “To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Berry v. Hamilton, 246 Ga. App. 608 (541 SE2d 428) (2000); Speir v. Krieger, supra.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       Jackie was 29 years old.

       “ ‘Equine’ means a horse, pony, mule, donkey, or hinny.” OCGA § 4-12-2 (3).

       “Equine activity sponsor” means an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for an equine activity, including, but not limited to, pony clubs; 4-H clubs; riding clubs; school and college sponsored classes, programs, and activities; therapeutic riding programs; and operators, instructors, and promoters of equine facilities, including, but not limited to, stables, clubhouses, ponyride strings, fairs, and arenas at which the activity is held.
      OCGA § 4-12-2 (5).

       “Equine professional” means a person engaged for compensation in: (A) Instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine; (B) Renting equipment or tack to a participant; or (C) Examining or administering medical treatment to an equine as a veterinarian.
      OCGA § 4-12-2 (6).

       Wiederkehr originally filed this appeal in the Supreme Court of Georgia, asserting jurisdiction upon the claim that his case involved the constitutionality of a statute. Finding that “the [state] court’s order and the underlying briefs reveal [ ] that there was no trial court ruling on a constitutional issue and that the case merely involves the application of the statute to the facts [,]” the Supreme Court transferred the case to this Court for disposition on appeal.


author: Ellington, Judge.

text:
    A00A2257.
    HICKEY et al. v. BOWDEN et al.
    (548 SE2d 347)
   Ellington, Judge.

After discovering moisture damage under the synthetic stucco cladding used in the construction of their home, David and Kimberly Hickey sued David V. Bowden and Kevin Mathews d/b/a Mathews Custom Homes, Mathews Home Builders, Inc., and Mathews Custom Homes, Inc., the alleged builders and sellers of the home (collectively “the builders”), and Colormatch Exteriors, Inc., a manufacturer of the allegedly defective product. Against the builders, the Hickeys asserted claims for negligent construction, breach of express and implied warranties, and negligent misrepresentation. Against Colormatch, they asserted claims for product liability, negligent design and marketing, and negligent misrepresentation. Finding that the applicable statutes of limitation had expired, the trial court granted motions for summary judgment filed by the builders and Colormatch. The Hickeys appeal the trial court’s grant of summary judgment, contending, inter alia, the trial court failed to apply the correct statute of limitation to their claim for breach of implied warranty and erred in determining when the causes of action accrued. We agree and reverse.

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. On appeal of the grant of summary judgment, we must determine whether the trial court erred in concluding that no genuine issue of material fact exists and that the party was entitled to summary judgment as a matter of law.

(Footnotes omitted.) Mitchell v. Contractors Specialty Supply, 247 Ga. App. 628 (544 SE2d 533) (2001).

Viewed in the light most favorable to the Hickeys, the evidence shows the following: In June 1995, the Hickeys signed a contract to buy a house from the builders. The Chatham County Building Inspections Department issued a certificate of occupancy for the house on July 13, 1995. The “Comments” section of the certificate of occupancy contains the notation “Completed 04/26/95.” The purchase closed on July 27, 1995. After they discovered moisture damage under the synthetic stucco, the Hickeys filed their action against the builders and Colormatch on April 26, 1999.

In ruling on the motions for summary judgment, the trial court found that construction of the house was “completed in early April of 1995.” The trial court noted that the director of the county building inspections department testified by affidavit that the “completed” date notation in the certificate of occupancy referred to the completion of the inspection process and not to the substantial completion of the structure. The trial court stated, “[i]t stands to reason that if the inspection process was completed on April 26, 1995, then the substantial completion of the building must have occurred prior to that date.” The trial court applied the four-year limitation period for actions for damage to realty provided in OCGA § 9-3-30 to all claims, concluded the action was filed more than four years after the right of action accrued in early April 1995, and granted the motions for summary judgment.

1. The Hickeys contend that the trial court should have applied the six-year limitation period for contract actions set out in OCGA § 9-3-24 to their claim for breach of implied warranty, rather than the four-year limitation period for damage to property actions. We agree. We have recently held that claims arising out of contract made by homeowners against professional builders-sellers are subject to the six-year limitation period provided in OCGA § 9-3-24. Smith v. KLS Constr. Co., 247 Ga. App. 493 (544 SE2d 197) (2001); Mitchell v. Jones, 247 Ga. App. 113, 114 (1) (541 SE2d 103) (2000); Stimson v. George Laycock, Inc., 247 Ga. App. 1, 3 (1) (542 SE2d 121) (2000). Further, “the same six-year statute of limitation that applies to a contract for construction also applies to a contract for the sale of new construction by a professional builder-seller.” Mitchell v. Jones, 247 Ga. App. at 115 (1). We have specifically applied the six-year statute to claims for breach of implied warranty. Stimson v. George Laycock, Inc., 247 Ga. App. at 1, 3. Accordingly, the trial court erred in applying a four-year limitation period to the Hickeys’ claim for breach of implied warranty.

“The period of limitation on a construction contract commences on the date the work was substantially complete.” (Footnote omitted.) Mitchell v. Jones, 247 Ga. App. at 114 (1). Because it is undisputed that the Hickeys filed their complaint within six years of the date their home was substantially complete, summary judgment was not warranted on their contract-based claim. Smith v. KLS Constr. Co., 247 Ga. App. at 494 (1).

2. The Hickeys contend the trial court erred in concluding the construction was substantially completed, and therefore their causes of action accrued, before April 26, 1995, more than four years before they filed their complaint. We agree. The Hickeys concede the four-year limitation period for damage to realty applies to their tort claims against the builders and to their claims against Colormatch. See Mitchell v. Jones, 247 Ga. App. at 115 (2) (builders-sellers); Mitchell v. Contractors Specialty Supply, 247 Ga. App. at 629 (manufacturer).

It is well settled that the starting date for damage to realty claims is the date of “substantial completion.” Mitchell v. Contractors Specialty Supply, 247 Ga. App. at 629 (product liability claim against manufacturers of allegedly defective construction materials). See Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988) (tort action for damage to property against manufacturers of allegedly defective construction materials); Hall v. Harris, 239 Ga. App. 812, 818 (5) (521 SE2d 638) (1999) (negligent construction cláim against builder-seller). The trial court found that the date April 26,1995, on the certificate of occupancy reflected when the inspection process was completed and concluded that the building must have been substantially completed before the final inspection. The trial court did “not equate the issuance of the Certificate of Occupancy with the substantial completion of the building.” The Hickeys contend the date of substantial completion of their home was no earlier than July 13, 1995, the date the county issued the certificate of occupancy, because until then the house could not legally be occupied. This appears to be a matter of first impression in Georgia.

Decided February 28, 2001

Reconsiderations denied March 19,2001

Eugene C. Brooks IV, Christopher M. Kessinger, for appellants.

Drew, Eckl & Farnham, Hall F. McKinley III, Andrew D. Horowitz, McCorkle, Pedigo & Johnson, David H. Johnson, Amy E. Edgy, Pursley, Howell, Lowery & Meeks, John C. Amabile, for appellees.

OCGA § 9-3-30 does not define “substantial completion,” but the phrase is defined for purposes of the statute of repose for claims for deficiencies in construction of improvements to real property, OCGA § 9-3-51. For the statute of repose, “substantial completion” is defined as “the date when construction was sufficiently completed, in accordance with the contract... so that the owner could occupy the project for the use for which it was intended.” OCGA § 9-3-50 (2). Because the Hickeys could not legally occupy the house for the purpose for which it was intended — as their residence — until the certificate of occupancy was issued, we hold the date the certificate of occupancy was issued is the earliest date their house could be deemed substantially completed. Because it is undisputed that the Hickeys filed their action less than four years after the certificate of occupancy was issued, the trial court erred in granting summary judgment to the builders and Colormatch on the Hickeys’ tort, fraud, and product liability claims for damage to realty. Mitchell v. Jones, 247 Ga. App. at 115 (2); Mitchell v. Contractors Specialty Supply, 247 Ga. App. at 629.

3. The Hickeys’ remaining enumerations of error are rendered moot by our holding in Divisions 1 and 2.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

Holland & Knight, Frank O. Brown, Jr., amicus curiae.

       At the time relevant to this action, OCGA § 9-3-30 provided, “[a]ll actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues.” The General Assembly amended § 9-3-30, for claims which had not expired under the previous law by March 28, 2000, to provide that certain actions for damage due to the manufacture of synthetic exterior siding “shall accrue when the damage to the dwelling is discovered or, in the exercise of reasonable diligence, should have been discovered, whichever first occurs.” OCGA § 9-3-30 (b) (1), (2) (2000). See Mitchell v. Contractors Specialty Supply, 247 Ga. App. at 630.

       See Chatham County Building Code, CABO Code (1 & 2 Single Family, 1989 ed.), § A103.9; OCGA §§ 8-2-20 (9) (B) (i) (VI); 8-2-25; 8-2-28.

        See Nolan v. Paramount Homes, 135 N.C. App. 73, 76 (518 SE2d 789, 791) (1999) (construing “substantial completion” as used in a statute of repose very similar to OCGA § 9-3-51, as follows: “An owner of a residential dwelling may use it as a residence when the appropriate government agency issues a final certificate of compliance. The owner may then utilize the residence for the purpose which it was intended and the home is substantially eompleted.”) (citations omitted).


author: Andrews, Presiding Judge.

text:
    A00A2333.
    BROWN & COMPANY JEWELRY, INC. v. FULTON COUNTY BOARD OF ASSESSORS.
    (548 SE2d 404)
   Andrews, Presiding Judge.

This case involves the application of Georgia ad valorem tax to an agent for consigned merchandise owned by out-of-state residents but offered for sale in Fulton County. The local jewelry store where the merchandise was offered for sale challenged the inclusion of items under consignment in its assessment. It claims that the merchandise cannot be taxed because it was only temporarily in Georgia. The Superior Court of Fulton County determined that the tax assessment properly included the consigned goods, and the jewelry store appeals. We hold that the plain statutory language authorizes assessment of the consigned goods and the fact that the store kept some of the items temporarily does not mean that the tax was applied unconstitutionally.

Brown & Company Jewelry, Inc., a Georgia corporation in business since 1974, owns and operates a business in Fulton County. Part of Brown’s inventory consists of store-owned property, and part consists of consignment items belonging to companies located in other states. Brown either sells the jewelry, giving the consignor the “reference price” as indicated on the contract, or returns the jewelry to the consignor. Industry standard contracts provide that the jewelry remains the property of the consignor, which can recall it at any time. The consignment jewelry typically spends from three to ninety days at Brown’s store before being either sold or returned. As Frank Brown explained, displaying the consignment jewelry constituted “good window dressing for us” because it offered potential buyers other purchase options and increased the appearance of store inventory when’the store-owned jewelry became depleted. For example, at the end of December 1995, the store had $1,385,038 in consigned jewelry on hand for sale. By the end of January 1996, the store still had most of the consigned jewelry and had sent back $440,268 worth.

At trial, two issues were presented for resolution, the taxability of the jewelry held by Brown on consignment in tax years 1995 and 1996, and the valuation of that jewelry if, in fact, the property was subject to ad valorem taxation. The merchandise at issue came from 25 or 30 jewelry companies located in other states and was not owned by Brown. The trial court noted that under the provisions of OCGA § 48-5-3, generally all personal property is subject to taxation unless a recognized tax exemption applies. Concluding that no tax exemption applied to the jewelry held on consignment by Brown, the court found that as part of the inventory of a retail Georgia business, under OCGA § 48-5-3 the property was required to be returned to the Tax Assessor of Fulton County, the county where the inventory was located. The trial court further found:

the Georgia statutory scheme as set out herein does not violate the Constitution of the United States or of the State of Georgia and that because the Court does not declare the statutes to be unconstitutional as applied to this category of property, no notice to the Attorney General is required.

In this appeal, Brown contends that the trial court erred in holding that the consigned personal property owned by out-of-state consignors and held for only short periods of time by Brown for sale to its customers is subject to Georgia ad valorem taxation. Brown claims that because the jewelry was present in Fulton County on only a short, temporary basis, the property did not acquire a tax situs in Georgia for ad valorem tax purposes.

When reviewing a bench trial where only issues of law were decided, this Court uses the plain legal error standard of review. Hart v. Hart, 245 Ga. App. 734-735 (538 SE2d 814) (2000). Here, no error occurred. See Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999).

When the language of a statute is unambiguous, a court has no authority to imply a contrary intent. Jersawitz v. Hicks, 264 Ga. 553, 554 (448 SE2d 352) (1994). Nor should subtle or forced constructions of a statute be used to limit or extend its scope. Id. Here, the explicit language of the applicable statutory law requires that this property be taxed. With certain statutory exceptions not relevant here, OCGA § 48-5-3 provides that “all personal property shall be liable to taxation and shall be taxed.” Tax assessment day is January 1. OCGA § 48-5-10. OCGA § 48-5-14 imposes tax liability upon nonresidents, all persons who return property for nonresidents, and the nonresident’s property located in Georgia. And the determinative statute, OCGA § 48-5-16 (b), expressly provides: “When the agent in this state of any person who is a resident of another state has on hand and for sale, storage, or otherwise merchandise or other tangible property, he shall return the property for taxation as provided in Code Section 48-5-12.” According to OCGA § 48-5-12, the personal property of nonresidents shall be returned for taxation in the county where the property is located. It is undisputed that the jewelry was located at Brown’s store in Fulton County.

While conceding that it had consigned merchandise on hand for sale on January 1, Brown argues that it should not be required to return the merchandise for taxes because the jewelry customarily remains in this State only for brief periods. However, the law affords no statutory exception based on the length of time merchandise is present in this State. Consequently, according to the plain statutory terms, Brown was obligated to return the property for taxation in Fulton County because Brown was acting as the “agent in this state,” on behalf of “any person who is a resident of another state,” and who “has,on hand and for sale” the merchandise. OCGA § 48-5-16 (b); see Jersawitz, 264 Ga. at 554 (no interpretation needed when statutory terms are clear).

Brown does not attack the constitutionality of OCGA § 48-5-16. Instead, Brown seeks to engraft a proviso extracted from another statute entitled “Situs of returns by nonresidents” (OCGA § 48-5-12). That Code section mandates that “[u]nless otherwise provided by law, all real and personal property of nonresidents shall be returned for taxation to the tax commissioner or tax receiver of the county where the property is located.” OCGA § 48-5-12. Brown argues that the due process and commerce clauses of the U. S. Constitution constitute such other provisions of law that prohibit the application of the tax to property of a nonresident unless that property has attained a “degree of permanency” in Georgia.

To support that assertion, Brown relies solely upon Marion v. Floyd County Bd. of Equalization, 270 Ga. 475 (511 SE2d 512) (1999). But Marion is factually and legally distinguishable. The central issue in Marion was the application of a different statute which pertains to the taxation of real and personal property belonging to a resident individual. See OCGA § 48-5-11. That Code section provides: “Unless otherwise provided by law, all: ... (2) Personal property of a resident individual shall be returned for taxation to the tax commissioner or tax receiver of the county where the individual maintains a permanent legal residence.” OCGA § 48-5-11 (2). In Marion, the issue was the propriety of taxing a recreational boat “functionally located” in Alabama but owned by an individual who resided in Georgia. Marion, 270 Ga. at 476. Our Supreme Court determined that the application of OCGA § 48-5-11 “to property permanently located outside the State of Georgia is an unconstitutional deprivation of due process of law.” Marion, 270 Ga. at 477 (2). For that reason, the Supreme Court remanded for a factual determination as to whether the boat had acquired a tax situs in Alabama. Id. at 478.

Decided March 19, 2001

W. Wheeler Bryan, Marie B. Hannon, Scott M. Dixon, for appellant.

Maddox, Nix, Bowman & Zoeckler, Thomas A. Bowman, Robert L. Zoeckler, for appellee.

Notwithstanding Brown’s claim to the contrary, we cannot agree that Marion stands for the proposition that any personal property which is not “permanently located” or has not acquired a degree of permanency in Georgia on January 1 is not taxable. Consequently, we do not find that similar due process concerns are implicated here. Nor do we find a commerce clause problem. See Quill Corp. v. North Dakota, 504 U. S. 298, 307 (III) (112 SC 1904, 119 LE2d 91) (1992). We conclude that regardless of the “degree of permanence” of the personalty in Georgia, this State’s tax has been properly applied to Brown. The merchandise was held for sale at Brown’s store, was located here for a limited amount of time, and was advertised for sale here, and sales could and did occur here. In other words, the goods were in commerce here. These contacts constitute a substantial nexus, regardless of the length of time the merchandise remained advertised or held for sale in Georgia. See generally Complete Auto Transit v. Brady, 430 U. S. 274 (97 SC 1076, 51 LE2d 326) (1977). Since Brown did not sustain its burden of showing that OCGA § 48-5-16 was applied in an unconstitutional manner, we affirm the judgment of the trial court. See Marion, 270 Ga. at 477 (2).

Judgment affirmed.

Miller and Mikell, JJ., concur. Pope, P. J, disqualified.

       We have jurisdiction to consider this question despite Ga. Const, of 1983, Art. VI, Sec. VI, Par. II, because Brown is not contesting the constitutionality of the relevant statute. See Marion, 270 Ga. at 477 (2). Second, we may decide questions involving settled principles of constitutional law. Pollard v. State, 229 Ga. 698 (194 SE2d 107) (1972).


text:
    A00A2083.
    MARTIN et al. v. SARAH RHODES, LLC et al.
    (548 SE2d 365)
   Andrews, Presiding Judge.

The sole issue before the court in this case is the width of an easement. The Sloans and Martin claim they are entitled to an easement of 60 feet across Sarah Rhodes’ property. The trial court found the existing 25-foot right-of-way was sufficient for full enjoyment of the easement and the Sloans had not shown a reasonable necessity for a wider access route to their property. For reasons which follow, we agree and affirm.

This easement was the subject of an earlier case in the Supreme Court of Georgia, Martin v. First State Bank &c. Co., 231 Ga. 511 (202 SE2d 447) (1973). That case sets out the history of the easement and deals with a complaint by Martin, the grantee, against the grantor’s successors in title who tried to bar his right-of-way. Originally, the grantor, Davis, sold a one-acre tract of land to Martin. The deed for this tract referred to the northern boundary line of the one-acre tract as running 390.68 feet along the south right-of-way of a “proposed street” on land still owned by Davis. Martin, supra at 512. Although the proposed street was not in existence at the time of the conveyance, the court in Martin found that it had been established and in use for several years when the trustees of the Davis estate sought to bar Martin’s use of the easement. Id. at 513. The Supreme Court held that Martin was entitled to use this road as an easement, stating

“[r]egardless of whether the way referred to actually exists as such, it is generally held that where a street or other way is called for as a boundary in a conveyance of land, and the grantor owns the fee in the land represented as the way or street, he is estopped, as against the grantee, to deny that the street or other way exists, and an easement in such way passes to the grantee by implication of law.”

Id. at 512. The court then went on to state,

“[w]hen a road is mentioned as a boundary, it should generally be understood that the boundary intended is a road as a road or way, and not as embracing the physical substance of the soil in and under the road, all the way down to the center of the earth. In other words, a road as a boundary is the road as an easement, together with such land, or interest in land, as is necessary to full enjoyment of the easement, but no more.”

Id. at 513.

The instant case arose when Rhodes purchased the servient estate from the Davis estate and cut down trees and put up buildings on property the Sloans and Martin claimed as their easement. The Sloans sought an injunction, and the court held a bench trial on their claim. The parties stipulated at trial that an easement existed and the only issue was the width of that easement. They agreed there was never anything of record stating the width of the easement and that the width of the easement was not an issue before the court in Martin, supra.

The trial court found that the Sloans were entitled to only that amount of land reasonably necessary to full enjoyment of the easement and the existing 25-foot right-of-way was sufficient for this purpose. This appeal followed.

In reviewing the evidence, we note that testimony from longtime users and also photographs of the easement show that at one time there was a two-track lane on one side of a row of pecan trees and another two-track lane on the other side of the trees. In recent years, the two lanes on the north side of the trees were used more than the lanes on the south side, and those two southern lanes disappeared, leaving a grassy area.

The easement now is just the one two-track lane, approximately twenty-five feet wide, which Rhodes has improved by grading, filling and graveling it. Nevertheless, the Sloans and Martin contend they are entitled to the 60-foot easement that existed when the court handed down its decision in Martin in 1973. They argue that when Davis originally laid out the road, it was 60 feet wide and this is the easement the Supreme Court held Martin was entitled to use. Therefore, they claim the trial court erred when it heard evidence on the amount of land reasonably necessary for full enjoyment of the easement.

We disagree. Not only does Martin not refer to an easement of any specific width, as stated above, it refers to this type of easement by implication as being “an easement, together with such land, or interest in land, as is necessary to full enjoyment of the easement, but no more.” Id. at 513.

Moreover,
[i]t is established law in this State, and generally, that nothing passes as an incident to the grant of an easement but what is requisite to its fair enjoyment. Notwithstanding such a grant, there remains in the grantor the right of full dominion and use of the land, except so far as a limitation thereof is essential to the reasonable enjoyment of the easement granted. It is not necessary that he should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him because they are not granted.

Decided March 6, 2001

Reconsideration denied March 20,2001

B. Samuel Engram, Jr., for appellants.

Moore, Clarke, Duvall & Rodgers, James H. Moore III, Edgar W. Duskin, Jr., for appellees.

(Citations omitted.) Ga. Power Co. v. Leonard, 187 Ga. 608, 610-611 (1 SE2d 579) (1939).

Thomason v. Kern & Co., 259 Ga. 119 (376 SE2d 872) (1989), cited by the Sloans is not helpful. In Thomason, the easement at issue was prescriptive and, therefore, could not be altered. The court reasoned that because

[o]ne who would acquire a prescriptive easement must not have shifted the path from place to place during the establishment period[, i]t follows that once the easement has been acquired, the owner of the servient tenement may not alter the path of the easement.

(Citation omitted.) Id. at 120.

Here, the trial court correctly concluded that because this easement was an implied one, the appropriate inquiry was whether the existing 25-foot right-of-way was sufficient for full enjoyment of the easement. The trial court determined that it was, and appellants do not dispute this finding on appeal. Accordingly, we affirm the judgment of the trial court. OCGA § 9-11-52 (a).

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       Martin later conveyed this tract of land to his son, who then conveyed it to his sister Shirley Sloan and her husband.

       Martin also purchased another tract of land from Davis which was adjacent to and east of the initial one-acre tract., He now claims on appeal that he has acquired a prescriptive easement to the 60-foot strip because he used it continuously for almost 30 years. Rhodes claims this was never argued below. In any event, there is no merit to this contention because a private way may not be acquired by prescription where use is with the owner’s permission. See, e.g., Douglas v. Knox, 232 Ga. App. 551, 552 (502 SE2d 490) (1998). There is no evidence Martin ever made an adverse claim or gave notice of one to the party in possession. Id.


author: Per curiam.

text:
    A00A2212.
    DAKER v. THE STATE.
    (548 SE2d 354)
   Per curiam.

A Fulton County grand jury indicted Waseem Daker for aggravated stalking, burglary, aggravated assault, and five counts of stalking. Daker filed a plea in bar, arguing that his prosecution is barred by his previous conviction in Cobb County for two counts of aggravated stalking. The trial court denied Daker’s plea, and he appeals. For reasons that follow, we affirm.

The relevant history between Daker and his victim, Lottie Spencer, is set forth in detail in this Court’s opinion in Daker v. State. Daker met Spencer either in 1993 or 1994, and, in December 1994, he began harassing her. The harassment began with telephone calls, but eventually escalated to include showing up at Spencer’s home, entering Spencer’s home without permission, threatening to kill both Spencer and her daughter, and attempting to force Spencer’s car off the road. Spencer contacted the police, and Daker was charged with multiple offenses in both Fulton and Cobb Counties. The Fulton County offenses occurred between December 15, 1994, and September 1, 1995, and the two Cobb County offenses occurred on October 14 and 20, 1995.

Daker was first tried in Cobb County, and the jury convicted him of two counts of aggravated stalking. During the Cobb County trial, the State introduced evidence of the Fulton County offenses. In two enumerations of error, Daker contends that the State’s use of this evidence to secure his Cobb County convictions bars any future prosecution in Fulton County on double jeopardy principles.

1. First, Daker asserts that his prosecution in Fulton County is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution. The Fifth Amendment provides that no person shall twice be put in jeopardy of life and limb for the same offense. In determining whether prosecution is barred by double jeopardy, we employ the Blockburger test, which provides that “successively charged offenses are separate for purposes of double jeopardy if each offense requires the State to prove some element or fact that is not required in the other.” Here, the charges pending against Daker in Fulton County are not barred by double jeopardy because they are based upon different events from those for which Daker was prosecuted in Cobb County.

In Cobb County, Daker was prosecuted for two stalking incidents that occurred on October 14 and 20, 1995. The stalking incidents in Fulton County are alleged to have occurred between December 15, 1994, and September 1, 1995. Thus, the two prosecutions are necessarily based upon different facts. Accordingly, Daker’s prosecution in Fulton County is not barred.

The case cited by Daker, United States v. Dixon does not require a different result. In Dixon, the defendant, who had been arrested for second-degree murder, was free on bond. As a condition of his release, Dixon was ordered not to commit any subsequent criminal offense. Thereafter, Dixon was arrested and indicted for possession of cocaine with intent to distribute. As a result of the second arrest, Dixon was found guilty of criminal contempt for violating the order not to commit any criminal offense while free on bond. When the government attempted to try Dixon for cocaine possession, he moved to dismiss the indictment on double jeopardy grounds. The United States Supreme Court concluded that “[b]ecause Dixon’s drug offense did not include any element not contained in his previous contempt offense, his subsequent prosecution violates the Double Jeopardy Clause.” In other words, double jeopardy applied because both offenses were based upon the same conduct. Clearly, the same reasoning does not apply in cases such as this, where the defendant is charged with different offenses based upon different events that occurred on different dates.

2. Second, Daker argues that his prosecution is barred by OCGA §§ 16-1-6 and 16-1-7, Georgia’s statutory prohibitions against double jeopardy. Specifically, he argues that, because any trial in Fulton County would necessarily require relitigating the same facts that served as the bases for his convictions in Cobb County, such trial is barred by double jeopardy. We disagree.

In order to fully appreciate Daker’s argument, we must first look to the language of the stalking statute. OCGA § 16-5-90 provides that a person stalks another if he follows or places another under surveillance or contacts another “for the purpose of harassing and intimidating” the other person. The term harassing or intimidating is defined as

a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior.

Pursuant to OCGA § 16-5-91, a person commits aggravated stalking if he or she stalks another in violation of an order prohibiting such conduct.

Daker argues that, during the Cobb County trial, the State introduced evidence of the Fulton County offenses to establish the “willful course of conduct” element of the stalking. Accordingly, he asserts that the State “used up” the evidence and that his prosecution in Fulton County is barred. We disagree.

As a general rule, “if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact.” “The facts of the instant case, however, reveal that. . . separate incidents were involved, each established by proof of different facts and distinct as a matter of law.” Accordingly, double jeopardy is not implicated.

If we were to accept Daker’s argument, then it would be impossible for the State to prosecute repeat offenders of the stalking statute as, having once used the evidence to demonstrate a course of conduct, the State would be forever barred from using that evidence again in establishing a subsequent stalking violation. As stalking is, by its very nature, a cumulative crime, Daker’s interpretation of double jeopardy would eviscerate the purpose of the stalking statute, leaving would-be stalkers free to begin stalking their victim with a clean slate following a stalking conviction. We cannot believe the legislature intended such result. Indeed, although this appears to be an issue of first impression in this state, other states that have addressed the issue have reached the same result.*

Furthermore, the result reached here does not violate the underlying principles of double jeopardy. The prohibition against double jeopardy protects individuals from “three types of abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” None of these concerns is implicated here, as Daker was prosecuted for altogether different incidents in Cobb County. The fact that evidence of the Fulton County incidents was admitted during the Cobb County trial does not change the result. Thus, the trial court did not err in denying Daker’s plea in bar.

Judgment affirmed. All division judges concur.

Decided March 5, 2001

Reconsideration denied March 20, 2001

R. Gary Spencer, for appellant.

Paul L. Howard, Jr., District Attorney, Ashutosh S. Joshi, Anna E. Green, Assistant District Attorneys, for appellee.

       243 Ga. App. 848 (533 SE2d 393) (2000).

       Although, in his motion, Daker argues that his prosecution violates the Sixth and Fourteenth Amendments of the United States Constitution, it is evident that he actually alleges a Fifth Amendment double jeopardy violation.

       See Blockburger v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932).

        Sword v. State, 232 Ga. App. 497, 498 (502 SE2d 334) (1998).

       509 U. S. 688 (113 SC 2849, 125 LE2d 556) (1993).

       Id. at 700.

       OCGA § 16-5-90 (a) (1).

       (Punctuation omitted.) Chadwick v. State, 236 Ga. App. 199, 202 (3) (511 SE2d 286) (1999).

        Ramsey v. State, 145 Ga. App. 60, 64 (10) (243 SE2d 555), rev’d on other grounds, Ramsey v. State, 241 Ga. 426 (246 SE2d 190) (1978).

       See id.; Teal v. State, 203 Ga. App. 440, 441-442 (1) (417 SE2d 666) (1992); cf. Kinney v. State, 223 Ga. App. 418, 420-421 (1) (477 SE2d 843) (1996) (double jeopardy applies when State introduces evidence of prior acts for the purpose of securing convictions for those acts).

       See State v. Martino, 61 Conn. App. 118 (762 A2d 6) (2000); Commonwealth v. Roefaro, 456 Pa. Super. 588 (691 A2d 472) (1997); People v. Kelley, 52 Cal. App.4th 568 (60 Cal. Rptr.2d 653) (1997); State v. Jones, 678 S2d 1336 (Fla. App. 1996); People v. White, 212 Mich. App. 298 (536 NW2d 876) (1995).

       (Punctuation omitted.) Thompson v. State, 229 Ga. App. 526, 527 (494 SE2d 306) (1997).

       See Teal, supra.


author: Blackburn, Chief Judge.

text:
    A00A2470.
    JORDAN v. TRI COUNTY AG, INC.
    (546 SE2d 528)
   Blackburn, Chief Judge.

In this action for repayment of a debt, Wiley Jordan appeals the trial court’s denial of his motion for summary judgment, contending that he is not liable to Tri County Ag, Inc. for funds borrowed by Jack Daniel Garrett pursuant to a $200,000 line of credit. Jordan also appeals the trial court’s grant of partial summary judgment to Tri County, contending that, even if he were liable under the line of credit agreement: (1) Tri County misapplied payments and credits on the account; (2) he cannot be held responsible for amounts lent to Garrett which exceeded the $200,000 line of credit limit; (3) Tri County charged usurious interest rates and, as such, forfeited its right to collect any interest on past due amounts; and (4) Tri County violated the Racketeer Influenced & Corrupt Organizations Act and, therefore, is not entitled to enforce the credit agreement. For the reasons set forth below, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

The evidence shows that Tri County sold farming supplies to Garrett in 1996. That year, Garrett’s crops failed, and, as a result, he was unable to pay all of his farming bills, including Tri County’s bill. Due to these credit problems, the Bank of Dawson County refused Garrett’s request for an operating loan in 1997, and, after exhausting other possibilities, Garrett approached Jordan, a friend and business acquaintance, for assistance.

An entrepreneur familiar with rural real estate transactions, crop production, and crop sales, Jordan agreed to assist Garrett in obtaining farm loans if Garrett, in return, (1) transferred an interest to Jordan in a certain real estate transaction and (2) agreed to sell his peanut crop through an organization in which Jordan held an interest. In addition, as Garrett’s landlord on some farming property, Jordan was motivated to assist Garrett in order to collect back rent on the leased property.

As part of their business arrangement, Jordan agreed to obtain a loan from the Bank of Dawson County in the name of his partnership, J & W Farms, and then loan the funds to Garrett to grow his crops. Because the bank required that the loan be secured by the crops, Garrett assigned the leases of farming property he held to J & W which, in turn, pledged the crops to the bank as collateral. Thereafter, Jordan transferred the proceeds of this loan to Garrett throughout the 1997 farming season.

That same year, Garrett also requested a $200,000 line of credit from Tri County in order to obtain seed, fertilizer, and other farming supplies. Tri County initially refused due to Garrett’s past due account and bad credit history. Garrett then informed Tri County that he had assigned his crops to J & W and that Jordan had agreed to allow Garrett to operate under the J & W name. After learning about the business deal between Garrett and Jordan, Tri County decided that it would extend a line of credit to Garrett only if both Garrett and Jordan were responsible for the debt. In addition, based upon Garrett’s explanation of his business dealings with Jordan, Tri County believed that Garrett and Jordan, through J & W Farms, were acting as partners, and Tri County, being aware of Jordan’s reputation as a savvy businessman in the community, was more willing to extend credit with this understanding.

At that time, Garrett, without assistance of an attorney, drafted a line of credit agreement “to be utilized by GARRETT personally and/or farming as J & W FARMS for the 1997 crop year.” Among other things, the agreement extended to Tri County a first lien on Garrett’s corn crop and a second lien on cotton and peanut crops produced under the name of J & W. Garrett signed this agreement in his individual capacity, and Jordan signed the agreement under the heading “J & W Farms.”

Following the 1997 crop season, Garrett again had insufficient funds to pay all of his debts, including the amount due on the 1997 line of credit with Tri County. As a result, Tri County brought suit against Garrett and Jordan to recover the balance due under the credit agreement along with interest and attorney fees. Jordan subsequently filed a motion for summary judgment contending that he had no obligations to repay the line of credit, which the trial court denied. Tri County filed a motion for partial summary judgment regarding a number of Jordan’s defenses, which the trial court granted. Jordan now appeals these rulings.

1. In his first enumeration of error, Jordan contends that the trial court erred by denying his motion for summary judgment, contending that there is no question of fact regarding his obligation under the contract. We disagree.

Viewed in the light most favorable to Tri County, the evidence supports the trial court’s ruling that a question of fact remains regarding Jordan’s obligations under the credit agreement. Jordan contends that nothing contained within the line of credit agreement obligates him to repay money borrowed by Garrett. The agreement, however, contains no terms regarding repayment by anyone and, as such, appears to be materially incomplete on its face.

As a general rule,

parol evidence is inadmissible to add to, take from, vary or contradict the terms of a written instrument. However, if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract only is reduced to writing . . ., and it is manifest that the writing was not intended to speak the. whole contract, then parol evidence is admissible. If the writing appears on its face to be an incomplete contract and if the parol evidence offered is consistent with and not contradictory of the terms of the written instrument, then the parol evidence is admissible to complete the agreement between the parties. A party is entitled to prove the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transactions between them.

(Citations and punctuation omitted.) Doyle v. Estes Heating &c.

The line of credit agreement, which was drafted by Garrett without the aid of an attorney, makes no reference to payments or obligations to pay the line of credit. It is axiomatic that such provisions are integral to any credit agreement, and it cannot be the intent of the parties herein that no such terms existed. Accordingly, it is appropriate in this instance for the trial court to consider parol evidence regarding the terms of the agreement, and based on the evidence of Jordan’s business relationship with Garrett, testimony of Tri County officers that they were led to believe that Garrett and Jordan were partners, and Jordan’s signature on the agreement, the trial court properly denied Jordan’s motion for summary judgment.

2. Jordan contends that the trial court erred by granting summary judgment to Tri County regarding his defense that Tri County “misapplied funds made in payment on the account under the letter of credit, and . . . misapplied credits.”

Jordan first argues that Tri County misapplied a $25,000 payment to satisfy a portion of Garrett’s 1996 debt rather than the debt incurred under the 1997 line of credit. This argument, however, is unfounded. In his deposition, Jordan testified that he understood that the $25,000 payment would be applied to a “back account,” not the 1997 line of credit.

Jordan also argues that, pursuant to the agreement, Tri County was required to extend certain credits to Garrett. In relevant part, the agreement provides:

TRI-COUNTY agrees to pay the sum of $15,000 to Case Credit on behalf of GARRETT to be credited to that certain account with Case Credit in the name of JACK DANIEL GARRETT. Said payment shall be made no later than August 15, 1997. TRI-COUNTY further agrees to pay the sum of $10,000 directly to GARRETT on September 1, 1997 as an advance towards 1997 operating expenses.

Jordan apparently argues that these credits were to be paid unconditionally to Garrett, without obligation for repayment. Nothing in the record supports Jordan’s contention, and the trial court did not err in granting Tri County’s request for summary judgment on this claim.

3. Jordan contends that the trial court erred by granting summary judgment to Tri County regarding his claim that any obligation he might have under the agreement has been satisfied because Tri County lent Garrett more than $200,000 and more than $200,000 had been paid on the account.

Black’s Law Dictionary (6th ed.) defines a line of credit as:

A margin or fixed limit of credit granted by one to another, typically from bank, retailer, or credit card issuer to customer, to the full extent of which the latter may avail himself in his dealings with the former, but which he must not exceed; usually intended to cover a series of transactions, in which case, when the customer’s line of credit is nearly or quite exhausted, he is expected to reduce his indebtedness by payments before drawing upon it further.

In other words, the credit limit is the maximum amount which a customer may borrow at any one time. A customer, however, may borrow far more than the limit in the aggregate over time, as long as periodic payments are made on the account. Therefore, to the extent that Jordan argues that he has no obligation under the agreement because Garrett has made payments to Tri County over time exceeding $200,000, his contention misconstrues the nature of a line of credit and has no merit.

However, to the extent that Jordan contends that Garrett was allowed to exceed his credit limit by having an outstanding balance of more than $200,000 at any one given time, questions of fact regarding Jordan’s liability remain. Because it is unclear in what capacity Jordan executed the agreement and because the agreement is incomplete with regard to payment obligations, Jordan may be entitled to set-offs for damages for breach of the contract by Tri County. See OCGA § 13-7-1. As such, Tri County is not entitled to summary judgment on Jordan’s defense that he may not be liable for the repayment of money loaned to Garrett in excess of the credit limit under the agreement. Accordingly, we must reverse the trial court’s grant of summary judgment to Tri County on this particular issue.

4. Jordan contends that the trial court erred by granting Tri County’s motion for summary judgment with regard to his claim that Tri County forfeited its rights to any interest accrued under the contract after conveying usurious invoices.

The record shows that, during the pendency of Garrett’s account with Tri County, Tri County used a computer billing program which erroneously charged its customers interest both on unpaid balances as well as unpaid interest. Jordan contends that Tri County knowingly and intentionally used this method of billing and is, therefore, guilty of usury. Jordan further contends that, because Tri County knowingly charged usurious rates of interest, it has forfeited all interest under the agreement.

In support of this argument, Jordan cites numerous cases in which there was evidence that the creditors involved intentionally charged usurious rates of interest. Here, on the other hand, the inappropriate interest charges were the result of faulty software, not the action of the creditor. The charging error was caused by a glitch in the software itself, not an intentional act of Tri County. The evidence is clear that Tri County did not know of, or intend for, the software to calculate interest upon interest and that the error was in the software itself as a result of a development error. The record, therefore, shows that the billing error originated in the programming of the software and was not a billing method intended to be employed by Tri County. Moreover, once Tri County discovered the programming error, it discontinued use of the software, recalculated the accounts of its customers, and made reparations where necessary. Based on this evidence, the trial court appropriately granted Tri County’s request for summary judgment with regard to Jordan’s claim that it had forfeited its right to all interest under the agreement.

5. Finally, Jordan contends that the trial court erred by granting summary judgment to Tri County regarding his claim that Tri County violated the Georgia RICO Act by knowingly employing a scheme to charge usurious interest. We disagree.

OCGA § 16-14-4 (a) provides:

It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.

In this case, the activity proscribed is the acquisition of usurious interest through a “pattern of racketeering activity.”

The act further provides that “pattern” means engaging in at least two incidents of racketeering activity. OCGA § 16-14-3 (2). Finally, “racketeering activity” is defined to mean the commission of a crime in any of thirty-one specified categories of offenses (known as predicate offenses).

State of Ga. v. Shearson Lehman Bros. The two predicate acts alleged by Jordan are mail fraud and theft by conversion. Jordan contends that Tri County committed mail fraud by sending invoices through the U. S. mail to perpetuate a scheme to collect usurious interest. He contends that Tri County committed theft by misapplying the $25,000 payment made by Jordan discussed in Division 2.

As discussed previously, the record does not support his contention either that Tri County knowingly and intentionally charged usurious interest or that Tri County converted the $25,000 payment. As discussed in Division 4, the evidence shows that the inappropriate interest charges made by Tri County were the result of a programming error in software used by the bank. This programming error was not requested by Tri County, and it had no prior knowledge of this problem. As such, there is no evidence that Tri County intentionally charged usurious interest. With regard to Jordan’s conversion accusation, as discussed in Division 2, nothing in the record supports Jordan’s contention that Tri County misapplied a $25,000 payment. Therefore, neither of the predicate acts alleged by Jordan is supported by the record in this case, and the trial court appropriately granted Tri County’s motion for summary judgment with regard to Jordan’s claims of RICO violations.

Decided February 26, 2001

Reconsideration denied March 20,,2001

Divine, Dorough & Sizemore, Kermit S. Dorough, Jr., William J. Sizemore, for appellant.

King & Spalding, Benjamin E Easterlin IV, Shannon F. Cox, for appellee.

Judgment affirmed in part and reversed in part.

Eldridge and Barnes, JJ., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

         Doyle v. Estes Heating &c., 173 Ga. App. 491, 493 (2) (326 SE2d 846) (1985).

        State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988).


author: Johnson, Presiding Judge.

text:
    A99A2269.
    DUDLEY v. THE STATE.
    (548 SE2d 414)
    Decided March 20, 2001.

      Franklin H. Thornton, for appellant.
    Robert H. Dudley, pro se.

      Patrick J. McDonough, District Attorney, David N. Marple, Assistant District Attorney, for appellee.
   Johnson, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Dudley v. State, 273 Ga. 466 (542 SE2d 99) (2001), our decision in Dudley v. State, 242 Ga. App. 53 (527 SE2d 912) (2000), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Phipps and Mikell, JJ., concur.