author: Boggs, Judge.

text:
    A16A0237.
    EDEL et al. v. SOUTHTOWNE MOTORS OF NEWNAN II, INC.
    (789 SE2d 224)
   Boggs, Judge.

Matthew and Shanna Edel appeal from the trial court’s grant of summary judgment to Southtowne Motors of Newnan II, Inc. (“South-towne”) in this action stemming from the sale of a used vehicle. The Edels assert that the trial court erred in granting Southtowne summary judgment on their claims under Georgia’s Fair Business Practices Act (“FBPA”), OCGA § 10-1-390 et seq., andón their claims for fraud, violation of the “Georgia Used Car Dealer Statute,” and revocation of acceptance under OCGA § 11-2-608. For the following reasons, 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). We apply a de novo standard of review to an appeal from the grant of summary judgment, construing the evidence in the light most favorable to the nonmovant.

(Citations omitted.) Sheats v. Kroger Co., 336 Ga. App. 307, 308 (784 SE2d 442) (2016). So viewed, the evidence showed that Matthew and Shanna Edel purchased a used 2010 Chevrolet Equinox from South-towne on August 6, 2013. They took possession of the vehicle the next day onAugust 7. One year later, when the Edels sought to trade in the Equinox for another vehicle at another dealership, they were told that the Equinox had previously been in an accident and was a “lemon buy back.” A few months later, on October 22, 2014, they filed suit against Southtowne asserting violations of the FBPAandthe “Georgia Used Car Dealer Statute,” breach of the implied warranty of merchantability, and a claim for revocation of acceptance. The Edels’ amended complaint added a count of fraud and a count of negligence against Southtowne. They alleged that they were never informed before purchasing the vehicle that it was a manufacturer’s buyback vehicle, that they were told that the vehicle had not been in any accidents, and that a Southtowne representative showed them a Carfax report affirming this statement. The Edels assert that they would have never purchased the vehicle had they known it was a manufacturer buyback (that had previously been in an accident), and that the vehicle’s market value was substantially impaired.

Southtowne moved for summary judgment asserting that the Edels’ claims fail because the vehicle’s buyback status and accident history were disclosed to them in documents bearing their signatures and that they therefore cannot rely upon any alleged oral representations. The trial court agreed, finding that the Edels admitted that the disclosures contained their signatures and that they had an opportunity to read them but failed to do so.

On appeal, the Edels assert that the trial court erred in concluding that they failed to state a claim for revocation of acceptance under OCGA § 11-2-608, and erred in granting Southtowne summary judgment on their FBPA claim alleging the deceptive sale of a warranty The Edels argue further that the court erred in granting summary judgment to Southtowne on their claims for violations of the FBPA and the “Georgia Used Car Dealer Statute,” and their claims for fraud and revocation of acceptance, in reliance on post-sale disclosures of the accident history and buyback status, and despite their being told before purchasing the vehicle that it had not been in an accident and were shown a Carfax report to confirm that fact.

1. Revocation of acceptance claim. The Edels argue that the trial court erred in finding that they failed to state a claim for revocation ofacceptance under OCGA § 11-2-608. They contend that they “revoked their acceptance of the vehicle via written letter, [and] Southtowne... failed and refused to honor” the revocation.

OCGA § 11-2-608 provides:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:
(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.

In this case, the Edels should have known of the facts forming the basis of their revocation of acceptance of the vehicle — the buyback status and the accident history — when they signed the disclosures acknowledging those facts on August 7, 2013. They admitted they did not read the disclosures when they were asked to sign them. Matthew Edel testified:

[T]hey had us come back the next day to do more paperwork, had it all quick to go, ready to go, came in, hey, sign all these, here’s the car, had it parked out front on top of the curb, ready to go, said all right, let’s get you through and get you on your way ... I felt that at a franchise dealership it wasn’t something that they would be offering me — I wouldn’t have to worry about it. It wasn’t something that crossed my mind of that would be a buyback vehicle for me to have that worry.

Nevertheless, “[o]ne signing a written document without reading it, unless prevented from doing so by fraud or artifice . .., is chargeable with knowledge of its contents.” (Citations and punctuation omitted.) Carrion v. Smokey, Inc., 164 Ga. App. 790, 791 (298 SE2d 584) (1982). And the “mere allegation that [the] defendant was in a hurry [is] insufficient to excuse plaintiffs from reading documents.” (Citation omitted.) Legacy Academy v. Mamilove, LLC, 297 Ga. 15, 18 (1) (771 SE2d 868) (2015).

The Edels attempted to revoke their acceptance of the vehicle on September 3, 2014, more than a year after they should have discovered the claimed nonconformity and one month before they filed suit, and after driving the vehicle 26,000 miles. OCGA § 11-2-608 (2) requires: “Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods.” We recognize that “whether reasonable notification was given to the seller . . . [is] ordinarily [a] matter[ ] for the trier of fact.” (Citation and punctuation omitted.) Paulk v. Thomasville Ford Lincoln Mercury, 317 Ga. App. 780, 785 (4) (732 SE2d 297) (2012). But the 13-month delay here after a substantial change in the condition of the vehicle is unreasonable as a matter of law. Id. at 785-786 (4) (attempted revocation unreasonable after plaintiffs drove car for six months and put thousands of miles on car); see also, e.g., Liberty v. Storage Trust Properties, 267 Ga. App. 905, 911-912 (2) (600 SE2d 841) (2004) (plaintiffs failed to promptly rescind where delay was nearly nine months). We therefore affirm the trial court’s grant of summary judgment on the Edels’ revocation of acceptance claim.

2. FBPA claim sale of supplemental warranty. The FBPA provides: “Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are . . . unlawful.” OCGA § 10-1-393 (a). The Edels assert that “it was an unfair business practice for Southtowne to sell to them a Warranty Solutions warranty which specifically excludes manufacturer buy back vehicles.” Southtowne presented the affidavit of its part-owner and an attached letter from the warranty company to explain that notwithstanding the buyback vehicle exclusion in the warranty, the vehicle would be covered under the warranty because the “manufacturer’s powertrain warranty was still in force.” The Edels respond that the trial court improperly relied upon hearsay in considering the letter attached to the affidavit. As Southtowne points out, however, this claim fails because the Edels have not shown that they suffered any damages under the proper measure of damages.

Although the FBPA provides administrative remedies for any violation of the Act, a private right of action is available only to a person who suffers injury or damages as a result of a violation. Accordingly, we have held that to prevail on a private cause of action under the FBPA, a private individual must establish three elements: a violation of the Act, causation, and injury We have consistently held that in accordance with the statutory requirements of the FBPA, the measure of damages to be applied for an FBPA violation is that of actual injury suffered. The general provisions of OCGA § 51-12-2 (a) damages recoverable without proof of amount are not applicable. Actual damages, for purposes of the FBPA, means relief other than the refund of the purchase price and restitution.

(Citations and punctuation omitted; emphasis supplied.) Small v. Savannah Intl. Motors, 275 Ga. App. 12, 15-16 (4) (619 SE2d 738) (2005). As the Edels admit, they have made no claim under the warranty (and been denied), made no repair other than that made by Southtowne at no charge, nor otherwise shown an “actual injury suffered.” The only relief they could seek under the facts here is a refund of the purchase price of the warranty. They have therefore failed to show “actual damages” on this ground to sustain an action under the FBPA. See id. The trial court did not err in concluding that this claim fails.

3. Fraud and FBPA claims sale of vehicle.

To make out a claim at common law for fraud, a plaintiff must show not only that he relied upon some misrepresentation, but he must show as well that his reliance was reasonable. The same is true of a claim under the Fair Business Practices Act of 1975, OCGA § 10-1-390 et seq., for consumer fraud.

(Citations, punctuation and footnotes omitted.) Raysoni v. Payless Auto Deals, 296 Ga. 156, 156-157 (766 SE2d 24) (2014). And“[w]hether it was reasonable for one to rely upon a certain misrepresentation is generally a question for a jury, although in some cases, the answer may appear so clearly that the question can be decided by a court as a matter of law.” (Citations omitted.) Id. at 157.

The Edels asserted through their deposition testimony that before they signed the sales agreement and retail installment sale contract on August 6, a representative of Southtowne told them that the vehicle had not been in an accident and showed them a Carfax report revealing no accidents. Shanna Edel testified that they did not take possession of the vehicle that day “[bjecause [Southtowne] had to take it in for detailing and it was getting late that night, so they had to take it in to get all of the detailing done to it before they gave it to us.” When they returned to pick up the vehicle the next day, on August 7, they were presented with several documents to sign, one of which was a “Vehicle Condition Notice” which disclosed that the vehicle was a “Lemon Law/Manufacturer or OEM Buyback Vehicle.” This notice shows a handwritten date of “8/6/13” under both signatures. The Edels claim, however, that despite the date shown, they did not sign this document until August 7.

The Edels also claim that August 7 was the date they signed the bottom of a document entitled “Your AutoCheck Vehicle History Report,” which revealed that the vehicle had been previously involved in an accident. No date is provided with their signatures, but “Report Run Date: 2013-08-06” is pre-printed at the top of the first page under the vehicle year, make and model. The Edels admit that they signed these documents without reading them on August 7, explaining that Southtowne “had them all prepped on the table, labeled with blue and pink, sign here. We signed quickly and they said we just want to get you through so you can get your vehicle because we waited the day before so long. We signed everything, and they did not provide any of the documentation to take home.”

Southtowne argues that certain other documents, that the Edels do not dispute were signed on August 6, preclude reliance on any alleged oral representations made the same day. Specifically, language in the sales agreement that “VERBAL PROMISES ARE NOT BINDING,” the merger clause in the retail installment sale contract that “[t]his contract contains the entire agreement between you and us relating to this contract,” and a statement in the “AS-IS NO WARRANTY” notice that “[sjpoken promises are difficult to enforce. Ask dealer to put all promises in writing.” While the merger clause provides that the retail installment sale contract is the entire agreement between the parties, the contract itself makes no representations concerning the accident history or buyback status of the vehicle. And although the sales agreement and “AS-IS NO WARRANTY” notice make reference to verbal representations, the Edels testified that they also relied on the Carfax report presented to them by Southtowne that revealed no accidents. “Accordingly, this is not a case in which reliance on all precontractual representations was rendered unreasonable as a matter of law” by a merger clause or disclaimer. See Raysoni, supra, 296 Ga. at 159 (plaintiff alleged he relied on Carfax report provided by dealer).

Southtowne, citing OCGA § 11-2-401 (2), argues that even if the Edels signed the disclosures the day after signing the sales agreement and retail installment sale contract, “the sale was not complete until they took physical possession of the vehicle on August 7, 2013.” But that Code section provides that title passes to the buyer “at the time and place at which the seller completes his or her performance with reference to the physical delivery of the goods.” Here, the issue is not whether title had passed to the Edels when they signed the disclosures. Indeed once the Edels signed the sales agreement and retail installment sale contract on August 6, they were then bound by them even though they did not take possession of the vehicle until the next day. The issue here is whether the disclosures were made before or after they were bound by those agreements.

Decided July 12, 2016

Reconsiderations denied and dismissed July 28, 2016

T. Michael Flinn, for appellants.

Rosenzweig, Jones, Horne & Griffis, George C. Rosenzweig, for appellee.

Because the evidence is in conflict regarding the timing of the disclosure of the vehicle’s accident history, we cannot say that reliance on any oral representations was unreasonable and therefore inadequate to sustain a fraud or FBPA claim. And, because the evidence is in conflict concerning the timing of the disclosure of the vehicle’s status as a buyback vehicle, we cannot say as a matter of law that Southtowne did not engage in a deceptive act prohibited by the FBPA. As issues of fact remain, the trial court erred in granting summary judgment on the Edels’ fraud and FBPA claims on the sale of the vehicle.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Rickman, J., concur.

       Southtowne’s general manager and co-owner averred that “[a] manufacturer’s buyback is a vehicle that has been repurchased pursuant to consumer warranty laws due to an alleged defect or non-conformity.”

       This appeal does not involve claims under Ga. Comp. R. & Regs., r. 122-23-.01 (Reacquired Vehicle Nonconformity Disclosure Form). See Ga. Comp. R. & Regs., r. 122-23-.02 (Return, Transfer and Resale of a Reacquired Vehicle).

       Although the trial court did not rule on this ground, we “will affirm a grant of summary judgment if it is right for any reason raised below.” (Citation omitted.) McPherson v. McPherson, 307 Ga. App. 548, 550 (1) (705 SE2d 314) (2011).

       The Edels also asserted a claim for violation of the “Georgia Used Car Dealer Statute” citing OCGA § 43-47-10 (1) (C) and (D). But this subsection is part of the Used Motor Vehicle Dealers’ and Used Motor Vehicle Parts Dealers’ Registration Act (OCGA § 43-47-1 et seq.), a licensing and regulatory act, which is inapplicable here as that subsection governs fines and penalties that may be imposed (upon a verified complaint from “any person”) upon a licensee if a majority of the members of the state board of registration find that the licensee made a substantial misrepresentation or false promise.

       It is true, as Southtowne argues, that parol evidence cannot vary the terms of a valid written agreement. See OCGA § 24-3-1; see also OCGA § 11-2-202. But the Edels’ testimony does not attempt to vary the terms of the sales agreements, but rather creates an issue of fact concerning the disclosure of information affecting their decision to purchase the vehicle.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A16A0239.
    CAMPBELL v. AILION et al.
    (790 SE2d 68)
   Branch, Judge.

Jolaunda Boone Campbell filed suit in Cobb County State Court against Bruce Ailion and two limited liability companies that Campbell alleges Ailion controls: ATL Investments, LLC, and Next Chapter Investments, LLC (collectively, the defendants are referred to herein as “Ailion”). Campbell’s complaint asserted two claims, one of which she labeled “Theft of Labor and Materials,” and the other of which she captioned “Mental Anguish and Emotional Distress and Attorney[ Fees.” Ailion moved to dismiss the complaint for failure to state a claim upon which relief could be granted. Following a hearing, the trial court granted that motion and dismissed Campbell’s complaint with prejudice. Campbell now appeals from that order. For the reasons explained below, we reverse the order of the trial court and remand the case for proceedings consistent with this opinion.

We review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, treating all material allegations set forth in the complaint as true, treating all denials set forth in the answer as false, and resolving any doubts in favor of the plaintiff. Wylie v. Denton, 323 Ga. App. 161, 162-163 (746 SE2d 689) (2013); Center for a Sustainable Coast v. Ga. Dept. of Natural Resources, 319 Ga.App. 205-206 (734 SE2d 206) (2012), rev’d on other grounds, Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593 (755 SE2d 184) (2014).

In support of Count 1 of her complaint, captioned “Theft of Labor and Materials,” Campbell alleged that she and Ailion entered into an oral agreement for Campbell to oversee the rehabilitation of a residential investment and/or rental property located in Atlanta and owned by Ailion or related entities. Ailion provided Campbell with a budget of $72,275 and an itemized list of repairs and improvements to be made to the property. Although Campbell was not to be compensated for her time, the parties agreed that she would retain contractors to perform the repairs and improvements, that she would fund the work, and that Ailion would then reimburse Campbell. Campbell thereafter spent $43,000 making repairs and improvements to the property, but Ailion only reimbursed her for $26,000, leaving a balance owed of $17,000. Campbell further alleges that Ailion entered into this agreement knowing that Ailion did not intend to reimburse her for any of the work she funded.

In support of Count 2 of her complaint, captioned “Mental Anguish and Emotional Distress and Attorney[ ] Fees,” Campbell alleged that Ailion acted intentionally and in bad faith and that its refusal to reimburse her has caused and continues to cause her “mental anguish and emotional distress.” She further contended that Ailion has caused her “unnecessary trouble and expense,” including forcing her to hire an attorney to file suit in an effort to recover the amounts owed. Campbell therefore requested that the trial court award her compensatory damages, punitive damages, interest on the amount owed, and reasonable costs and attorney fees.

Ailion moved to dismiss the complaint, asserting that Georgia does not recognize a cause of action for civil theft. Ailion further asserted that because Georgia does not recognize a cause of action for civil theft, Campbell could not premise her claim for emotional anguish on such a theft. Additionally, Ailion argued that Campbell could not pursue both of her claims simultaneously, as both were predicated on the same conduct. In her response, Campbell pointed out that the allegations of her complaint supported, at the very least, a claim for breach of contract.

Following a hearing at which it heard oral argument from the parties, the trial court granted Ailion’s motion to dismiss. In its order, the trial court held that Count 1 failed as a matter of law because Georgia does not recognize a civil cause of action for theft. Additionally, the trial court found that Count 1 could not state a breach of contract claim because Campbell acknowledged “that she was not to be compensated for the services she allegedly performed.” With respect to Count 2, the trial court found that “a claim for damages for mental anguish and emotional distress will not lie where, as in this case, the plaintiff is also claiming pecuniary damages.” The court further found that even though the allegations of Campbell’s complaint might support a claim of fraud, Campbell had failed to “adequately plead” such a claim. Campbell now appeals from the order of dismissal.

Under current Georgia law, it is not necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. Rather, the Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act. Thus, a motion to dismiss for failure to state a claim should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof. Put another way, if, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 752 (2) (751 SE2d 545) (2013) (citations and punctuation omitted). See also Charles H. Wesley Ed. Foundation v. State Election Bd., 282 Ga. 707, 713-714 (1) (654 SE2d 127) (2007) (the Civil Practice Act requires only that a complaint “give the defendant fair notice of what the claim is and a general indication of the type of litigation involved; the discovery process bears the burden of filling in details”) (punctuation and footnote omitted); Lathem v. Hestley, 270 Ga. 849, 850 (514 SE2d 440) (1999) (“the issue is not whether the petition pled a claim in an ideal manner but whether it sufficiently gave [defendant] fair notice of the claim and a general indication of the type of litigation involved”) (citations omitted). Here, the allegations of Campbell’s complaint gave Ailion fair notice that Campbell was asserting a claim for breach of an oral contract. Alternatively, those allegations would also support a cause of action for unjust enrichment (breach of an implied contract), promissory estoppel, and fraud.

1. Under Georgia law, an enforceable contract may exist even though it “rest[s] only in words as rememberedby witnesses.” OCGA § 13-1-5 (b). See also Cline v. Lee, 260 Ga.App. 164, 168 (1) (581 SE2d 558) (2003). To assert a claim for the breach of such a contract, a plaintiff must allege that the parties agreed to the terms of the contract, that consideration was given for the contract, that the defendant thereafter breached the agreement, and that the plaintiff suffered damages as a result of the breach. See Cline, 260 Ga.App. at 168 (1). Here, the trial court found that Campbell could not state a claim for breach of an oral contract because she “acknowledges that she was not to be compensated for the services she allegedly performed.” Thus, the trial court appears to have concluded that any oral contract would fail for lack of consideration. The flaw in the court’s reasoning is that it assumes only monetary compensation can serve as the good and valuable consideration required for a contract. Georgia law is clear, however, that things other than money may constitute contractual consideration. See id. (finding an enforceable oral contract where a builder agreed to construct homes in a particular subdivision in exchange for certain promises from the developer). See also OCGA § 13-3-43 (“[i]f the requirement of consideration is met, there is no additional requirement of a gain, advantage, or benefit to the promi-sor or of a loss, disadvantage, or detriment to the promisee”). Here, Campbell alleged that she agreed to oversee the renovation and rehabilitation of certain real property in which Ailion had an interest in exchange for Ailion’s promise to reimburse her for certain budgeted expenditures. These allegations are sufficient to at least state a claim for breach of an oral contract. See Cline, 260 Ga. App. at 168 (1).

2. Alternatively, Campbell’s complaint also states a claim for unjust enrichment.

A claim of unjust enrichment will he if there is no legal contract and the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for. The concept of unjust enrichment in law is premised upon the principle that a party cannot induce, accept, or encourage another to furnish or render something of value to such party and avoid payment for the value received.

Jones v. White, 311 Ga. App. 822, 827-828 (1) (b) (717 SE2d 322) (2011) (citations and punctuation omitted). Thus, a claim for unjust enrichment exists where a plaintiff asserts that the defendant induced or encouraged the plaintiff to provide something of value to the defendant; that the plaintiff provided a benefit to the defendant with the expectation that the defendant would be responsible for the cost thereof; and that the defendant knew of the benefit being bestowed upon it by the plaintiff and either affirmatively chose to accept the benefit or failed to reject it. See Estate of Crook v. Foster, 333 Ga. App. 36, 39 (1) (775 SE2d 286) (2015); Morris v. Britt, 275 Ga. App. 293, 294 (1) (620 SE2d 422) (2005).

Here, Campbell’s complaint alleges that Ailion, acting as an agent for the property owner and/or acting for Ailion’s own benefit, induced Campbell to spend her own money improving property owned either by Ailion or the entity for whom Ailion was acting as an agent; that it did so by promising Campbell that she would be reimbursed for any monies she spent making certain, itemized improvements; that Ailion was aware of the value of the improvements Campbell funded; and that Ailion has now refused to honor its promise to reimburse Campbell. These allegations are sufficient to state a claim against Ailion for unjust enrichment. Estate of Crook, 333 Ga. App. at 39 (1); Morris, 275 Ga. App. at 294 (1). See also Maloy v. Ewing, 157 Ga. App. 95, 96 (4) (276 SE2d 145) (1981) (where defendant acted as agent for corporate entity that owned real property and held a controlling interest in that entity, defendant could be held liable on the equitable theory of quantum meruit for work done on the property; “[ujnder those circumstances, the jury was entitled to infer that the work done by plaintiffs was of benefit to the defendant personally”).

Ailion attempts to avoid this result by arguing that a cause of action for unjust enrichment will lie only in the absence of an express contract. See Ga. Dept. of Community Health v. Data Inquiry, 313 Ga. App. 683, 687 (2) (722 SE2d 403) (2012) (“[ujnjust enrichment is an equitable principle that may be applied when there is no valid written contract between the parties”) (citation omitted). And because Campbell’s complaint alleges the existence of an enforceable oral contract between the parties, Ailion contends that Campbell may not pursue recovery based on the equitable theory of unjust enrichment. This argument, however, ignores the fact that “Georgia law . . . permits a plaintiff to proceed to trial on alternative theories of recovery.” Wingate Land & Dev. v. Robert C. Walker, Inc., 252 Ga. App. 818, 821 (1) (558 SE2d 13) (2001) (footnote omitted). Thus,

[i]f [a factfinder] concludes that [Ailion] is liable on [Campbell’s] breach of contract theory, the issue of [Ailion’s] liability under the alternative theories of unjust enrichment and implied contract would become moot. Conversely, if the [factfinder] concludes that [Ailion] didnot breach any express contract, questions of fact would exist as to whether [Ailion] is liable under these [alternative] theories.

Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 248 (8) (590 SE2d 224) (2003).

3. Georgia law also provides a cause of action under the equitable doctrine of promissory estoppel. See OCGA § 13-3-44 (a). The elements of such a cause of action “are that the defendant made a promise upon which he reasonably should have expected the plaintiff to rely, the plaintiff relied on the promise to his detriment, and injustice can be avoided only by enforcing the promise because the plaintiff forwent a valuable right.” Vernon v. Assurance Forensic Accounting, 333 Ga. App. 377, 394 (6) (774 SE2d 197) (2015) (citation omitted). See also Sun-Pacific Enterprises v. Girardot, 251 Ga. App. 101, 104 (1) (553 SE2d 638) (2001). In this case, the allegations in Campbell’s complaint that would support a claim for unjust enrichment would also support a claim for promissory estoppel. Id.

4. As the trial court acknowledged, Campbell’s complaint also set forth the elements of a fraud claim. Specifically, Campbell alleged that Ailion represented to her that it would reimburse Campbell if she made certain improvements to the property at issue; that Ailion made this representation with the knowledge that it was false — i.e., knowing that it did not intend to reimburse Campbell; that Campbell justifiably relied on this intentional misrepresentation; and that Campbell suffered damages as a result. See Vernon, 333 Ga. App. at 390 (3) (outlining the elements of a fraud claim under Georgia law). Despite these allegations, however, the trial court found that the complaint failed to plead fraud with sufficient particularity, and that the alleged fraud claim was therefore subject to dismissal under OCGA § 9-11-12 (b) (6). This ruling was in error.

Even assuming Campbell’s complaint failed to set forth a claim for fraud with sufficient particularity, “the proper remedy” for any such insufficiency is an order requiring “a more definite statement, not a dismissal of the complaint or judgment on the pleadings, at least so long as the plaintiff is able and willing to amend his pleadings to conform to the statutory requirements.” Stewart v. SunTrust Mtg., 331 Ga. App. 635, 637 (1), n. 2 (770 SE2d 892) (2015) (citations and punctuation omitted). On remand, therefore, the trial court may order Campbell to plead a more definite statement of her fraud claim, provided the order identifies “the ways in which [her current] complaint fails to conform to the pleading requirements of the Civil Practice Act.” Babalola, 324 Ga. App. at 755 (2) (c) (citation and punctuation omitted).

Decided June 8, 2016

Reconsideration denied July 28, 2016.

H. J. A. Alexander, for appellant.

Wagner, Johnston & Rosenthal, S. Bradley Shipe, for appellees.

For the reasons set forth above, the order of the trial court dismissing Campbell’s complaint with prejudice is reversed, and the case is remanded for proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

Ellington, P. J., and Mercier, J., concur.

       In the alternative, the complaint appears to allege that Ailion was acting as the authorized agent of the property’s owner.

       In its reply brief in support of its motion to dismiss, Ailion argued that the current action is related to a previous lawsuit filed by Campbell against a different corporate defendant. Ailion alleged that the previous lawsuit was also based on the improvements Campbell made to the property at issue, and it attached to its reply brief a number of exhibits related to the prior lawsuit. The trial court, however, appropriately declined to take notice of any documents attached to Ailion’s reply brief. As we have explained before, documents attached to a “brief in support of [a] motion to dismiss . . . cannot be considered in deciding the motion to dismiss.” Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750, 751, n. 4 (751 SE2d 545) (2013).
      Although a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when it does so it converts the motion to dismiss into a motion for summary judgment, governed by OCGA § 9-11-56. In accordance with this procedure, the trial court has the burden of informing a plaintiff that it will be considering exhibits attached to the defendant’s motion to dismiss and that the plaintiff would have no less than 30 days within which to submit his own evidence in response to the motion for summary judgment.
      Id. (citations and punctuation omitted).

       In its brief, Ailion asserts that Campbell is now barred from asserting that her complaint states a claim for anything other than “Theft of Labor and Materials” and “MentalAnguish and Emotional Distress.” Specifically, Ailion contends that because Campbell did not use the words “breach of contract,” or “unjust enrichment,” she is now barred from arguing that her complaint asserts such claims. This argument, however, confuses appeals from the grant of a motion to dismiss under OCGA § 9-11-12 (b) (6) with appeals from a final judgment entered after a case has been fully litigated on the merits. In the latter situation, a party may not raise a new issue or claim for the first time on appeal. Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (“absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal” from a grant of a summary judgment) (footnotes omitted); Williamson v. Strickland & Smith, 296 Ga. App. 1, 5 (5) (673 SE2d 858) (2009) (on appeal from a final judgment entered following trial, a party may not raise an issue not raised in the court below). This rule results from the fact that appellate courts “are courts for the correction of errors of law made by the trial courts . . . [and] [a]n error of law has as its basis a specific ruling made by the trial court.” Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999) (citation omitted). On appeal from the grant of a motion to dismiss however, the question is whether the trial court erred, as a matter of law, in finding that “the pleadings show a complete failure by the plaintiff to state a cause of action.” Wylie, 323 Ga. App. at 162-163. Thus, because claims for breach of contract, unjust enrichment, promissory estoppel, and fraud could be fairly inferred from the allegations of Campbell's complaint, her failure to plead these precise causes of action cannot result in the dismissal of her complaint with prejudice. See Gosule v. Bestco,

        Inc., 227 Ga. App. 863, 866 (2) (a) (490 SE2d 532) (1997) (reversing a grant of summary judgment based on the pleadings where the trial court failed to acknowledge the plaintiff’s claim for quantum meruit; although the complaint contained “no claim for quantum meruit and no details outlining such a claim,” the plaintiff was not barred from asserting that theory of recovery, given that it could be fairly inferred from the allegations of the complaint); Ambrose v. Sheppard, 241 Ga.App. 835, 836-837 (528 SE2d 282) (2000) (although plaintiffs’ complaint did not specifically assert a claim for promissory estoppel, they could nevertheless pursue that cause of action where the complaint alleged “facts sufficient to put [the defendant] on notice of such a claim”) (citation omitted). See also Scott v. Scott, 311 Ga.App. 726, 729 (1) (716 SE2d 809) (2011) (“it is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss”) (citations omitted); Lathem, 270 Ga. at 850.


author: McFADDEN, Judge.

text:
    A16A0587.
    DANIEL v. THE STATE.
    (787 SE2d 281)
   McFADDEN, Judge.

After a jury trial, Desmond Daniel was convicted of burglary He appeals, challenging the sufficiency of the evidence, the lack of a jury charge on trespass as a lesser offense, and the effectiveness of his trial counsel. However, there was sufficient evidence to support the verdict, there was no evidence to authorize a jury charge on trespass as a lesser offense, and there has been no showing that trial counsel’s performance was both deficient and prejudicial. Accordingly, we affirm.

1. Sufficiency of the evidence.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the [defendant] is no longer entitled to the presumption of innocence. [Cit.]” Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013). “We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses. [Cit.]” Byrd v. State, 325 Ga. App. 24 (752 SE2d 84) (2013).

So viewed, the evidence shows that at approximately 9:30 a.m., on November 25, 2009, Daniel opened a fence gate and entered the victims’ property; went to the back door of their house and knocked on the door; upon no one answering the knock, Daniel broke in the back door and entered an enclosed porch; he then attempted to remove the hinges of a door leading into the interior of the house, where the victims had many valuable items, including a computer, television, video game consoles, and leather goods.

At the time of the attempted break-in, 11-year-old M. R. was inside the house alone, while both of his parents were at work. M. R. called 911 and reported the incident. A patrol officer responded to the call within two minutes, heard a loud metal-on-metal noise as Daniel was still trying to gain entry through the door, confronted Daniel with his weapon drawn, and ordered him to show his hands. Daniel came out from the porch with his hands up and said, “You got me.” As the officer handcuffed him, Daniel told the officer, “I can get you a murderer.”

Daniel was charged with burglary in violation of OCGA § 16-7-1 in that he unlawfully entered the victims’ premises with the intent to commit a theft therein. He argues that the evidence was insufficient because it did not exclude the reasonable hypothesis that he did not have the intent to commit theft and instead was simply seeking shelter from the cold. However, Daniel has pointed to no evidence in the record which would support an inference that he was merely seeking shelter. Conversely, “[t]he presence of valuables inside the premises can support an inference of intent to steal, particularly when no other motive is apparent.” Miller v. State, 208 Ga. App. 547, 547-548 (1) (430 SE2d 873) (1993) (citations and punctuation omitted). In this case, evidence showing “[t]he presence of valuables, such as [the victims’] television^ computer and other goods], is sufficient to support an inference of [Daniel’s] intent to steal.” Howard v. State, 227 Ga. App. 5, 8 (6) (b) (488 SE2d 489) (1997) (citation omitted). “And the fact that [Daniel] may have failed in accomplishing his apparent purpose does not render a finding of burglary improper.” Bradshaw v. State, 172 Ga.App. 330, 332 (2) (323 SE2d 253) (1984) (citations and punctuation omitted). Accordingly, “the evidence was sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of burglary as alleged in the indictment.” Howard, supra.

2. Jury charge on criminal trespass.

Daniel contends that the trial court erred in failing to charge the jury on criminal trespass as a lesser included offense of burglary Our review of this issue is only for plain error. Although Daniel filed a written request for such an instruction and objected at the charge conference when the court indicated that it would not give the charge, Daniel failed to object to the jury charge that the court eventually gave.

Because an objection voiced at the charge conference does not preserve objections to the charge as subsequently given, the failure to object to the charge as given precludes appellate review unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Despite the lack of objection below, the omission of the jury instruction [on criminal trespass] was raised on motion for new trial and enumerated as error and argued on appeal in this case. Consequently, we will review the failure to charge on [criminal trespass], but we review only for plain error, meaning an error that is obvious, that likely affected the outcome of the proceedings, and that seriously affects the fairness, integrity or public reputation of judicial proceedings. We find no plain error here.

Merritt v. State, 292 Ga. 327, 330-331 (2) (737 SE2d 673) (2013) (citations and punctuation omitted).

“A person commits the offense of criminal trespass when he or she knowingly and without authority . . . [e]nters upon the land or premises of another person . . . for an unlawful purpose[.]” OCGA § 16-7-21 (b) (1). Daniel argues that the jury could have found that the unlawful purpose for which he entered upon the victims’ premises was to seek shelter, not to commit a theft, and thus a jury charge on trespass was warranted. Indeed,

[w]e have held that the trial court must give a requested charge on criminal trespass as a lesser included offense of burglary where the testimony of the accused if believed, would negate an element of the crime of burglary (entry with intent to commit a felony or theft). Specifically, where the accused admits the unauthorized entry but denies the intent to commit a felony or theft, the trial court must give a requested charge on the lesser included offense of criminal trespass.

Hiley v. State, 245 Ga. App. 900 (539 SE2d 530) (2000) (citations and punctuation omitted).

However, in this case, Daniel did not testify at trial or present any other evidence negating any element of the crime of burglary Rather, as noted above and as properly found by the trial court, while the state presented evidence from which the jury could infer an intent to steal, there was no evidence that Daniel was merely seeking shelter when he tried to break into the area of the victims’ house containing valuables. “[Sjince there [was] no evidence of any intent other than that set out in the indictment, to commit a theft, the requested charge [on trespass as a lesser offense] was not supported by evidence. That being so, the trial court did not [commit plain error] in refusing to give the requested charge.” McLeroy v. State, 184 Ga. App. 62, 63 (2) (360 SE2d 631) (1987) (citations omitted) (affirming trial court’s refusal to give jury charge on criminal trespass as a lesser included offense of burglary). Accord Varnes v. State, 159 Ga. App. 452, 453 (2) (a) (283 SE2d 673) (1981) (where the evidence disclosed only that the defendants entered the premises for the unlawful purpose of committing theft, there was nothing to authorize an instruction on the lesser offense of criminal trespass).

3. Ineffective assistance of counsel.

Daniel claims his trial counsel was ineffective in failing to preserve the objection to the court’s failure to charge on criminal trespass and in failing to object to a burden-shifting answer by the trial court in response to jury questions. To prevail on these claims, Daniel must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different,. See McDuffie v. State, 298 Ga. 112, 115 (2) (779 SE2d 620) (2015); Long v. State, 287 Ga. 886, 891 (4) (700 SE2d 399) (2010). Daniel has not made these required showings.

With regard to a jury charge on criminal trespass, as discussed above in Division 2, there was no evidence to support such a charge. “As the trial court would not have been authorized to charge the jury on criminal trespass as a lesser included offense of burglary, it logically follows that [Daniel] cannot show that his trial counsel’s failure to [preserve an objection to the lack of] such a charge was ineffective.” Dillard v. State, 323 Ga. App. 333, 337 (2) (753 SE2d 772) (2013) (citation omitted).

As for the trial court’s response to the jury’s questions, contrary to Daniel’s characterization, the response was not burden-shifting. During deliberations, the jurors sent a note to the judge asking about the phrase “no other apparent motive,” if a motive had to be based solely on the evidence before them, if the state had the burden to disprove apparent motives, and if a motive would be reasonable if no evidence were presented on it. After consulting with the parties, the trial court gave the following response to the jury:

Decided June 7, 2016

Reconsideration denied July 28, 2016

Gerard B. Kleinrock, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

The state is required to prove all of the elements of burglary as charged in this indictment that you have back there with you. Motive is not an element of burglary You may only consider evidence you have heard in the courtroom and any exhibits that have been admitted during the course of this trial. I will remind you that the opening statements, closing arguments, indictment and plea of not guilty are not evidence.

“When a jury... requests further explanation of the law or raises other questions it is within the trial court’s sound discretion to determine the need, breadth, and formation of any additional jury instructions.” Benjamin v. State, 322 Ga. App. 8, 12 (2) (b) (743 SE2d 566) (2013) (citations and punctuation omitted). Here, the trial court did not abuse its discretion in responding to the jury’s questions as the response, contrary to Daniel’s claim, was not burden-shifting and instead “was legally accurate and not confusing or misleading!)]” Payne v. State, 219 Ga. App. 318 (1) (b) (464 SE2d 884) (1995). Moreover, Daniel has made no showing of any reasonable probability that the outcome of the trial would have been different, had counsel objected to the court’s recharge. “Thus, trial counsel’s failure to object to the recharge does not amount to ineffective assistance of counsel, and does not warrant a reversal.” Skaggs-Ferrell v. State, 287 Ga. App. 872, 878 (3) (652 SE2d 891) (2007).

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


author: Peterson, Judge.

text:
    A16A0648.
    HARRISON v. McAFEE et al.
    (788 SE2d 872)
   Peterson, Judge.

It is often said that “nothing good happens after midnight.” See, e.g., MacFall v. City of Rochester, 746 F. Supp. 2d 474, 477 (W.D.N.Y. 2010). As further support for this proposition, it was well after midnight when a masked man burst into the Shamrock bar and shot John Harrison in the arm. The masked man was never found. More than two years later, Harrison filed a premises liability lawsuit against the bar’s alleged owners, which the trial court dismissed as time-barred by the two-year statute of limitation applicable to personal injury claims. Harrison argues that his lawsuit is timely under OCGA § 9-3-99, which tolls the limitation period for claims filed by crime victims, and that we should overrule our precedent that interprets that statute as applying only to claims filed against the alleged perpetrator. Because our prior decisions misinterpreted the statute, we agree, overrule our prior decisions, and reverse.

1. Factual and, procedural overview.

The pertinent evidence is undisputed. Harrison was shot in the armón June 16,2011, while patronizing a Macon area restaurant and bar named the Shamrock. As far as the parties know, the shooter, who was part of a group of masked men apparently attempting to rob the bar, has yet to be arrested or prosecuted. On August 14, 2013, Harrison filed a lawsuit against Dargan McAfee, alleging that McAfee owned and operated the bar at the time of the shooting and had been negligent in maintaining the premises. In his answer, McAfee raised as affirmative defenses (1) Harrison’s failure to join as a party Twisted Shamrock, Inc., a corporation McAfee formed to own the bar, and (2) the complaint was time-barred by OCGA § 9-3-33’s two-year statute of limitation for personal injury cases. McAfee also filed a motion to dismiss on the basis that Harrison’s claim was time-barred, but withdrew the motion after Harrison amended his complaint to allege tolling under OCGA § 9-3-99 based on his status as a crime victim. With permission of the trial court, Harrison filed a second amended complaint adding Twisted Shamrock as a defendant.

The defendants moved for summary judgment on the ground that Harrison’s claims were time-barred. In response, Harrison argued that his suit was filed within the time period permitted under OCGA § 9-3-99 for torts arising from a crime. He argued that this Court’s decisions holding that OCGA § 9-3-99 applies only to crime victims’ suits against the alleged perpetrators were wrongly decided. Alternatively, Harrison argued that a different provision, OCGA § 9-3-94, tolled the limitation period as to his claim against Twisted Shamrock because the company’s administrative dissolution several years prior to the shooting had rendered the entity effectively absent from the state. The trial court rejected both arguments and granted summary judgment for the defendants. Harrison appeals the trial court’s rulings on both OCGA § 9-3-94 and OCGA § 9-3-99, explicitly urging us to overrule our precedent that restricts the application of OCGA § 9-3-99 to suits against alleged perpetrators.

2. Analysis

Whether a cause of action is barred by the statute of limitation generally is a mixed question of law and fact, but the question is one of law for the court when the facts are not disputed. McGhee v. Jones, 287 Ga. App. 345, 347 (2) (652 SE2d 163) (2007). The plaintiff bears the burden of establishing that a statute of limitation has been tolled. Orr v. River Edge Cmty. Serv. Bd., 331 Ga.App. 228, 230 (1) (770 SE2d 308) (2015). With certain exceptions, “actions for injuries to the person shall be brought within two years after the right of action accrues[.]” OCGA § 9-3-33. That limitation period may be tolled for actions by crime victims under OCGA § 9-3-99, enacted by the General Assembly as part of the “Crime Victims Restitution Act of 2005.” Ga. L. 2005, pp. 88-89, §§ 1, 2. The statute provides in full:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years, except as otherwise provided in Code Section 9-3-33.1.

OCGA § 9-3-99.

(a) Our treatmen t of OCGA § 9-3-99 to date

The Supreme Court of Georgia has not addressed whether OCGA § 9-3-99 applies to lawsuits against those who have not been accused of crimes against the plaintiff. Beginning with passing dicta and evolving to explicit holdings, our Court has said that this tolling statute applies only to a crime victim’s claims against someone accused of committing the crime that forms the basis for the suit:

• In 2007, we described OCGA § 9-3-99 in a string cite as “tolling due to pending criminal prosecution of defendant.” DeKalb Med. Ctr. v. Hawkins, 288 Ga. App. 840, 847 (2) (c) n.6 (655 SE2d 823) (2007). The plaintiff in that case did not claim crime victim status or cite OCGA § 9-3-99 as a basis for tolling in his lawsuit, however, see id. at 840-43, and the reference clearly was dicta.
• In Valades v. Uslu, 301 Ga. App. 885, 888-89 (1) (689 SE2d 338) (2009), we rejected the plaintiffs’ argument that OCGA § 9-3-99 tolled the time for filing their false arrest and other claims against a county and one of its police officers. We explained that “[t]he statute’s plain language tolls the statute of limitation for any cause of action in tort brought ‘by the victim of an alleged crime’ while the prosecution of the defendant is pending, for a period not to exceed six years.” Id. (emphasis in original). Because the defendant officer had not been prosecuted for any crime based on the incident in question, we held that OCGA § 9-3-99 did not toll the limitation period. Id. at 889 (1). Our opinion did not make clear on what basis the plaintiffs took the position that they were “victims” within the meaning of the statute, but the prosecution of the plaintiffs (for obstruction of an officer, resulting in acquittals) was the only prosecution mentioned therein. Id. at 887 (1). We also did not identify any language of the statute, plain or otherwise, that limited its scope to claims against a prosecuted defendant.
• The next year, we followed Valades in rejecting a plaintiff’s argument that OCGA § 9-3-99 tolled the time for filing an ante litem notice regarding his lawsuit against a county and its sheriff. Columbia Cty. v. Branton, 304 Ga. App. 149, 152-53 (1) (695 SE2d 674) (2010). The plaintiff sued the county and sheriff over the death of his wife, killed by a motorist who was then prosecuted for felony murder based on the motorist’s felony attempt to elude a sheriff’s deputy Id. at 149-51. The plaintiff’s suit apparently was based on evidence that the deputy had pursued the motorist at a high rate of speed. Id. at 150. We quoted Valades and held that “[b] ecause the county defendants were not criminal defendants in a prior prosecution, OCGA § 9-3-99 does not toll the time for filing the ante litem notice[.]” Id. at 152-53 (1).
• In Mays v. Target Corp., 322 Ga. App. 44 (743 SE2d 603) (2013), we rejected as nonbinding dicta statements in Valades about the plain language of OCGA § 9-3-99. Id. at 46 n.2. We nevertheless reaffirmed that OCGA § 9-3-99 tolls the limitation period only for suits brought against persons accused of crimes of which the plaintiff is a victim. Id. at 46. The plaintiff had alleged in her lawsuit against a retailer that the defendant’s employee had pleaded guilty to a criminal offense after he captured her image with a cell phone while she was changing in a store dressing room. Id. at 44. Finding the statute was “ambiguous as to whether it tolls the limitation period for a crime victim’s cause of action against the person accused of the crime only,” we relied on language in the caption of the enacting legislation that said a purpose of the legislation was to “provide for a statute of repose in certain tort actions brought by victims of crimes against the person accused of such crimes." Id. at 46 (emphasis in original) (quoting Ga. L. 2005, pp. 88-89, § 1).
• Last year, without further analysis of the statutory text, we relied on Mays, Branton, and Valades to reject a plaintiff’s tolling argument under OCGA § 9-3-99, reaffirming that tolling under the statute “is only available in suits against criminal defendants.” Orr, 331 Ga. App. at 230 (1).

(b) Reexamination of plain language of OCGA § 9-3-99

Although our prior precedent has held consistently that OCGA § 9-3-99 applies only to actions brought by crime victims against persons accused of such crimes, we now hold that such an interpretation is contrary to the plain language of the statute.

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

Deal v. Coleman, 294 Ga. 170, 172-73 (1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted). “It is well settled that where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Norred v. Teaver, 320 Ga. App. 508, 512 (1) (740 SE2d 251) (2013) (citation and punctuation omitted).

OCGA § 9-3-99 provides for tolling as to “any cause of action in tort” brought by a crime victim that “arises out of the facts and circumstances relating to the commission of such alleged crime[.]” In its ordinary usage, “any” refers to “one or some indiscriminately of whatever kind,” “one, some, or all indiscriminately of whatever quantity,” and “unmeasured or unlimited in amount, number or extent.” Webster’s New Collegiate Dictionary 93 (9th ed. 1991). So the statute applies to any cause of action in tort, without limitation, so long as that cause of action is brought by a crime victim and “arises out of the facts and circumstances relating to the commission of such alleged crime.”

We have previously construed “arising out of” to mean “had its origins in,” “grew out of,” or “flowed from.” BBL-McCarthy, LLC v. Baldwin Paving Co., 285 Ga. App. 494, 498 (1) (a) (646 SE2d 682) (2007). “Moreover, we have also held that the term ‘arising out of’ does not mean proximate cause in the strict legal sense .... Almost any causal connection or relationship will do.” Id. (citations and punctuation omitted). In determining whether an injury occurs by an accident “arising out of” a person’s employment for purposes of workers’ compensation law, we consider whether the injury would have occurred “but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured.” Sturgess v. OA Logistics Servs., 336 Ga. App. 134, 137 (784 SE2d 432) (2016) (quoting Chaparral Boats v. Heath, 269 Ga. App. 339, 343 (1) (606 SE2d 567) (2004)) (emphasis omitted). Similarly, in determining whether insurance claims “arise out of” excluded conduct, we also conduct a “but for” analysis. See Continental Cas. Co. v. HSI Fin. Servs., 266 Ga. 260, 262 (466 SE2d 4) (1996); City of College Park v. Ga. Interlocal Risk Mgmt. Agency, 313 Ga. App. 239, 243-45 (2) (721 SE2d 97) (2011).

If we presume — as we must — that the General Assembly meant what it said and said what it meant, we must conclude that the tolling provision applies here. Harrison is the victim of an alleged crime committed in this state. He has filed a lawsuit containing a cause of action in tort. And his cause of action in tort arises out of the facts and circumstances relating to the commission of the alleged crime; but for the crime, there would be no cause of action. “[A]ny cause of action in tort” that “arises out of the facts and circumstances relating to the commission of such alleged crime” means precisely that; there is no qualifying or limiting language that narrows the scope of the statute based on the identity of the civil defendant.

In Mays, we said the language of OCGA § 9-3-99 was ambiguous. 322 Ga. App. at 46. But it is not. That the statute does not identify the particular civil defendants against whom it applies does not make it ambiguous, it makes it unlimited. The General Assembly knows how to limit the sort of civil defendants to which a statute applies, when it wishes to do so. See, e.g., OCGA §§ 2-7-170(d); 7-1-440; 8-2-117; 9-3-30.2(b); 10-1-623(f); 10-1-814(b). But it didnot do so here, leading us to conclude that it did not intend to limit the statute’s reach to claims against only a certain subset of civil defendants. See Gay v. Owens, 292 Ga. 480, 481-82 (1) (738 SE2d 614) (2013) (when the General Assembly uses a phrase in other statutes, courts do not read that phrase into a statute that does not contain it). This case is similar to Norred, in which we overruled prior precedent to hold that OCGA § 9-3-72, which tolls the limitation period for medical malpractice cases “where a foreign object has been left in a patient’s body,” is not limited to cases in which the object is left unintentionally. 320 Ga. App. at 510-13 (1). As in that case, the plain language of OCGA § 9-3-99 is clear and “[tjhere is no language in this Code section limiting its application” to cases in which the party sued has been criminally accused. Id. at 512-13 (1).

McAfee and Twisted Shamrock urge us to adhere to Mays’ reliance on the caption of the bill that enacted OCGA § 9-3-99 as evidence that the General Assembly intended for the tolling provision to apply to causes of action against only those accused of a crime. We may examine the title or caption of an act of the General Assembly “when the act is doubtful, for the purpose of finding the legislative intent thereof[.]” Moore v. Robinson, 206 Ga. 27, 40 (6) (55 SE2d 711) (1949). However, as we recognized in Mays, the caption “is not a part of the act and therefore cannot control over its plain meaning.” 322 Ga. App. at 46 (quoting Spalding County Bd. of Elections v. McCord, 287 Ga. 835, 837 (1) (B) (700 SE2d 558) (2010)). See also State v. Ware, 282 Ga. 676, 678 (653 SE2d 21) (2007) (“[I]t is fundamental that the preamble or caption of an act is no part thereof and cannot control the plain meaning of the body of the act.”). The meaning of OCGA § 9-3-99 is plain and thus cannot be informed or changed by the caption of the enacting legislation.

The cases cited by McAfee and Twisted Shamrock to the contrary are distinguishable. In Moore, our Supreme Court explicitly found the statute in question to be ambiguous before considering the caption of the act. Moore, 206 Ga. at 39 (6). In Concerned Citizens of Willacoochee v. City of Willacooche, 285 Ga. 625, 626 (680 SE2d 846) (2009) the Court did not use the preamble to change the plain meaning of the statute, but announced its conclusion based on a plain reading of the charter and amendment before adding that its conclusion was “buttressed” by the preamble. In Holcomb v. Long, 329 Ga. App. 515, 518-19 (1) (765 SE2d 687) (2014), this Court examined a codified preamble in determining the intent of the General Assembly, which is different from the sort of caption relied on by the defendants here. See id. at 518-19 (1) (examining OCGA § 4-12-1). Unlike captions, codified preambles are part of the act and appropriate to read in pari materia. See Holcomb, 329 Ga. App. at 518-19 (1) n.15 (codified preamble was “part of an act passed by the General Assembly and approved by the governor”); cf. Gay, 292 Ga. at 482 (1) (“Statutes are not to be construed in a vacuum, but in relation to other statutes of which they are a part.”) (citation and punctuation omitted).

McAfee and Twisted Shamrock also argue that limiting the tolling provision to actions against those accused of crimes “makes practical sense.” But our decision does not rest on the relative policy merits of one construction over another. When statutory language is clear, “it is the sole evidence of the ultimate legislative intent.” Norred, 320 Ga. App. at 512 (1) (citation and punctuation omitted). The plain language of OCGA § 9-3-99 clearly applies regardless of a crime victim’s choice of civil defendant.

(c) Stare decisis considerations

Having concluded that our prior interpretations of OCGA § 9-3-99 misread the plain language of the statute, we must consider whether the doctrine of stare decisis nonetheless counsels us to adhere to those prior decisions. “Stare decisis is an important principle that promotes the rule of law, particularly in the context of statutory interpretation, where our incorrect decisions are more easily corrected by the democratic process.” State v. Jackson, 287 Ga. 646, 658 (5) (697 SE2d 757) (2010) (citation omitted). However, it “is not an inexorable command” but “a principle of policy.” Id. (citation and punctuation omitted). “In considering whether to reexamine a prior erroneous holding, we must balance the importance of having the question decided against the importance of having it decided right.” Id. (emphasis in original). Factors to consider include (1) the age of the precedent, (2) the reliance interests at stake, (3) the workability of the decision, and, most importantly, (4) the soundness of its reasoning. Id.

As demonstrated above, the reasoning of our prior decisions on this question is unsound, which weighs strongly in favor of overturning them. Our rulings at issue here are relatively young: It was less than seven years ago, in Valades, that we first held that OCGA § 9-3-99 applies only to a claim against someone accused of a crime against the plaintiff. We and our Supreme Court have overruled erroneous statutory interpretations far older than that. See Woodard v. State, 296 Ga. 803, 808-14 (3) (771 SE2d 362) (2015) (overruling 24-year-old interpretation of justification defense statute); Jackson, 287 Ga. at 659-60 (5), (6) (overruling nearly 29-year-old interpretation of felony murder statute); Durrence v. State, 287 Ga. 213, 216 (1) (a) n.5 (695 SE2d 227) (2010) (overruling 26-year-old interpretation of insanity defense statute); Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314, 319-21 (2) (765 SE2d 413) (2014) (overruling 36 years of erroneous calculation of statutory grace period for perfecting service). Our prior interpretation of OCGA § 9-3-99 affects no property or contract issues and establishes no substantive rights, so it does not create the sort of reliance interests that counsel against overturning precedent. Jackson, 287 Ga. at 658-59 (5). Additionally, our case law is inconsistent as to whether it limits the statute to claims against those who have been accused of committing the crime from which the cause of action arises, or limits the statute to claims against those who actually have been prosecuted. Compare Mays, 322 Ga. App. at 46 (limiting tolling to claims against those “accused” of a crime of which the plaintiff was a victim); with Orr, 331 Ga. App. at 230 (1) (limiting tolling to claims against “criminal defendants”); Branton, 304 Ga. App. at 153 (1) (same); and Valades, 301 Ga. App. at 889 (1) (limiting tolling to claims against those who have been “prosecuted”). That lack of clarity alone creates some workability concerns.

That leaves nothing on the side of reaffirming our prior case law, except the fact that it involved the construction of a statute. Although certainly the General Assembly can correct an erroneous statutory interpretation more easily than it can respond to a constitutional ruling of which it disapproves, we minimize the complexities of the legislative process if we assume that legislative inaction in the face of a court’s erroneous construction of a statute amounts to agreement. Indeed, “it can be perilous to rely heavily on legislative silence and inaction to conclude that a court’s interpretation of a statute is correct.” Jackson, 287 Ga. at 659 (5) n.8. “Legislative inaction frequently betokens unawareness, preoccupation, or paralysis.” Id. (citation and punctuation omitted). In fact, because our prior error involved an incorrect interpretation of a statute enacted by a co-equal branch of government, rather than, say, our own pronouncement on matters of judge-made law, separation of powers considerations counsel in favor of reaching the correct decision, even if it means reversing course, lest we fail to apply faithfully the law as enacted by the legislative branch. Cf. Etkind v. Suarez, 271 Ga. 352, 357 (5) (519 SE2d 210) (1999) (rejecting request to overrule prior decision, noting that prior ruling “is not an erroneous statement of the law of Georgia, but merely a pronouncement by a majority of [the Supreme Court of Georgia] as to the proper construction of the tort law of this state on a matter of first impression”). We conclude that stare decisis does not warrant holding firm to our prior erroneous construction of OCGA § 9-3-99.

3. Conclusion

Based on the plain language of OCGA § 9-3-99, we hold that the statute applies regardless of whether the defendant in the case has been accused of committing the crime from which the cause of action arises. We therefore overrule Valades, Branton, Mays, and Orr to the extent that they improperly limit the statute’s application. We also disapprove dicta in DeKalb Medical Cen ter that is inconsistent with the holding of this opinion.

As our Supreme Court did when it construed another aspect of OCGA § 9-3-99, “we recognize that our holding in this case will have a significant impact on personal injury actions” by crime victims. Beneke v. Parker, 285 Ga. 733, 735 (684 SE2d 243) (2009).

Nonetheless, we are constrained by the language of the statute to reach this result. If the Legislature had intended to limit the application of OCGA § 9-3-99 to [claims against those accused of committing a crime of which the plaintiff was a victim], it certainly could have done so. It did not, and any undesirable result is a matter properly addressed by the General Assembly rather than the courts.

Id.

McAfee and Twisted Shamrock have not challenged Harrison’s invocation of OCGA § 9-3-99 on any ground other than reliance on our now-overturned case law. We, therefore, reverse the trial court’s order granting summary judgment.

Decided July 7, 2016

Reconsideration denied July 28, 2016

Lumley & Harper, Jerry A. Lumley, for appellant.

Lewis, Brisbois, Bisgaard & Smith, R. Scott Master son, Thomas C. Grant, Ryan N. Florio, for appellees.

Judgment reversed.

Andrews, P. J., Barnes, P. J., Phipps, P J., Dillard, McFadden, Boggs, Ray, Branch, McMillian, Rickman and Mercier, JJ., concur. Miller, P. J., and Ellington, P. J., concur in judgment only. Doyle, C. J., not participating.

       The sole change to the statute since its 2005 enactment was made in 2015, when the General Assembly added the phrase “except as otherwise provided in Code Section 9-3-33.1,” in an act creating that new Code section, which extended the limitation period for lawsuits over childhood sexual abuse. See Ga. L. 2015, p. 675, § 2-4; Ga. L. 2015, p. 689, § 4.

       The lone decision of the Supreme Court of Georgia discussing OCGA § 9-3-99, Beneke v. Parker, 285 Ga. 733 (684 SE2d 243) (2009), concerned the interpretation of the term “crime” as it is used in the statute, holding that the term encompassed a violation of the Uniform Rules of the Road and was not limited to felonies or specific intent crimes.

       The use of the word “any” can create some ambiguity only when it is unclear whether it means “all” or “any one” of something. See, e.g., Morrison v. Claborn, 294 Ga. App. 508, 511-12 (2) (669 SE2d 492) (2008). There is no such ambiguity here.

       Moreover, Concerned Citizens involved the interpretation of a city charter and an amendment thereto, and thus the Court was not bound by its rules of construction as to enactments of the General Assembly. See Concerned Citizens, 285 Ga. at 625.

       When the General Assembly codifies its intent for a comprehensive statutory scheme, that codified preamble becomes part of the statutory context in which we read individual passages. This is quite different from the uncodified, formalistic caption that accompanies every bill the General Assembly considers, which both we and our Supreme Court have made clear is not part of the act. See Ware, 282 Ga. at 678; Mays, 322 Ga. App. at 46. It is the latter kind of caption that Mays incorrectly relied upon to change the plain language of the statute.

       Moreover, there are conceivable policy arguments cutting the other way. As Harrison points out, records related to a pending investigation or prosecution may be relevant to the victim’s civil claim against someone other than the perpetrator of the crime. But those records may be unavailable to a crime victim until that investigation or prosecution is complete. See OCGA § 50-18-72(a)(4) (excluding from Open Records Act disclosure requirements law enforcement records of pending investigations and prosecutions). Some might also wish to afford crime victims generally some breathing room before they need to contemplate a civil lawsuit.

       In the light of our ruling as to Harrison’s tolling argument based on OCGA § 9-3-99, we need not reach his alternative argument based on OCGA § 9-3-94, in which he contends that Twisted Shamrock’s administrative dissolution prior to the shooting rendered the entity effectively absent from the state until the defendants admitted the company’s existence in their answers. A ruling in Harrison’s favor on this enumeration of error would not obviate the need to evaluate our precedent on OCGA § 9-3-99, as the OCGA § 9-3-94 argument applies only to Harrison’s claim against one of the defendants.