text:
    A10A1825.
    BUTLER v. THE STATE.
    Decided November 14, 2011.

      Sparticus D. Heyward, for appellant.

      Patrick H. Head, District Attorney, Bert T. Reeves, Jr., Dana J. Norman, Anna G. Cross, John R. Edwards, Amelia G. Pray, Assistant District Attorneys, for appellee.
    (718 SE2d 869)
   Doyle, Judge.

In State v. Butler, an unpublished order, the Supreme Court vacated this Court’s opinion in Butler v. State.

Accordingly, pursuant to the Supreme Court’s order, our opinion in this case is vacated, the judgment of the Supreme Court is made the judgment of this court, and this case is remanded to the trial court for entry of a proper order pursuant to Barker v. Wingo and Higgenbottom v. State.

Judgment vacated and case remanded.

Ellington, C. J., and Andrews, J., concur.

       Case No. S11C1209, Nov. 7, 2011.

       309 Ga. App. 86 (709 SE2d 293) (2011).

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       288 Ga. 429 (704 SE2d 786) (2011).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A11A0874.
    In the Interest of A. W., a child.
    (718 SE2d 865)
   Doyle, Judge.

The State filed a delinquency petition in the Juvenile Court of Cobb County against A. W, a 17-year-old male, alleging that A. W. committed acts that would constitute burglary and theft by receiving stolen property if charged against an adult. Following a hearing, the juvenile court transferred A. W’s case to superior court so that he could be treated as an adult offender as provided by OCGA § 15-11-30.2 (a). A. W appeals from the transfer order, contending that the juvenile court erred by finding that he could not be committed to an institution for the mentally retarded absent additional testing or a more recent mental evaluation. We disagree and affirm.

Before transferring jurisdiction from juvenile to superior court, the juvenile court must find that there are reasonable grounds to believe that the child committed the delinquent act alleged; the child is not committable to an institution for the mentally retarded or mentally ill; the interests of the child and the community require that the child be placed under legal restraint and the transfer be made; and the child was at least 15 years of age at the time of the alleged delinquent conduct. On appeal, the function of this court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination, and absent an abuse of discretion, we will affirm the order transferring jurisdiction.

Relying on In the Interest of K. J. T., A. W contends that the juvenile court abused its discretion in determining that there are reasonable grounds to believe that he is not committable to an institution for the mentally retarded or mentally ill. This reliance, however, is misplaced. In that case, this Court held that the trial court abused its discretion by granting the motion to transfer based on the testimony of two probation officers because the officers had not been in contact with the child for almost two years and were therefore unable to provide competent evidence to establish K. J. T.’s present mental condition. Furthermore, the psychological evaluation in K. J. T. specifically indicated that the child’s current mental state could not be properly determined without inpatient observation and evaluation for psychotropic medication treatment.

In the instant case, however, A. W’s initial probation officer from the Juvenile Court of Cobb County had an encounter with A. W. less than one year prior to trial. The officer’s testimony indicated that A. W fully understood and answered questions, but was a distant child. A. W’s current probation officer from the Department of Juvenile Justice also testified that while she had to explain some things to A. W repeatedly, he was able to understand most questions. In addition, both probation officers noted that A. W was wearing a gold shirt, which signifies his ability to follow rules and regulations at the Youth Detention Center. The court was also provided with a psychological evaluation that occurred only 16 months prior to the hearing. The evaluation stated that A. W functions in the borderline range of intellectual ability, but does not appear to manifest any type of mental retardation. The evaluation cited A. W’s lack of motivation as a reason for his slow progression through academic material. A. W’s current probation officer stated that there was no reason for a second psychological evaluation.

Decided November 14, 2011.

H. Maddox Kilgore, for appellant.

Patrick H. Head, District Attorney, Stephen A. Delaney, Assistant District Attorney, for appellee.

Because there was record evidence of A. W.’s current mental condition to support the condition of transfer, the trial court did not abuse its discretion by finding that A. W. was not committable to a mental institution. Contrary to A. W.’s contentions, the psychological evaluation and the explanations given by the probation officers for their opinions as to A. W.’s mental condition are not insufficient as a matter of law. Accordingly, we affirm the juvenile court’s transfer order.

Judgment affirmed.

Ellington, C. J., and Miller, P. J., concur.

       OCGA § 16-7-1 (a).

       OCGA § 16-8-7 (a).

       (Citations and punctuation omitted.) In the Interest of D. M., 299 Ga. App. 586, 586-587 (683 SE2d 130) (2009). See also OCGA § 15-11-30.2 (a) (3).

       246 Ga. App. 660 (542 SE2d 514) (2000).

       See id. at 662.

       See id. at 661-662.'

       See, e.g., In the Interest of D. W. B., 259 Ga. App. 662 (1) (577 SE2d 819) (2003); In the Interest of L. L., 165 Ga. App. 49, 50 (299 SE2d 53) (1983).

       See In the Interest of J. T., 214 Ga. App. 349, 349-350 (1) (447 SE2d 702) (1994).


author: Barnes, Presiding Judge.

text:
    A11A1347.
    ROBERTS v. CONNELL et al.
    (718 SE2d 862)
   Barnes, Presiding Judge.

During Candiss Roberts’ appointment with Dr. Judson T. Con-nell for crown restorations, her lower lip was lacerated when an instrument slipped during the procedure. She claimed that the injury resulted in scarring, a lip droop, nerve and sensory deficits, and chronic pain, and sued the dentist for malpractice, breach of contract, lack of informed consent/battery and negligence per se. Roberts appeals from the trial court’s order granting summary judgment to Connell on her claim of lack of informed consent.

To prevail at summary judgment under OCGA § 9-11-56,

the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this 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. When 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 therefrom most favorably toward the party opposing the motion. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment. When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence.

(Footnotes omitted.) Beasley v. Northside Hosp., 289 Ga. App. 685, 685-686 (658 SE2d 233) (2008).

The facts relevant to this appeal show that the affidavit of Roberts’ expert, Mark Benner, D.D.S., was attached to Roberts’ complaint pursuant to OCGA § 9-11-9.1. The dentist averred that Connell practiced below the standard of care “[b]y failing to maintain control over the dental instrument he was using to remove excess cement after seating crowns . . . thereby resulting in and allowing the instrument to lacerate Candiss Roberts’ lower lip.” Connell filed a motion to strike the affidavit and to dismiss the complaint with prejudice. Connell subsequently withdrew the motion to strike the expert’s affidavit and to dismiss the malpractice claim. Roberts, thereafter, dismissed her claims of battery, breach of contract, and negligence per se; after which, there were only two remaining claims in the case — medical malpractice and informed consent.

At the hearing on the motion to dismiss, the parties proceeded exclusively on the informed consent issue. At the hearing, Roberts conceded that “basic” consent was obtained in this case because she had signed a “consent to treatment” form; thus, she had withdrawn her battery claim, However, Roberts maintained that there remained two “distinct and mutually exclusive” informed consent claims — (1) “malpractice standard of care informed consent” inherent within the standard of care of the practice of dentistry, and (2) statutory informed consent predicated on OCGA § 31-9-6.1 because Connell supplied “major regional anesthesia” to an area of her mouth in connection with the crown procedures.

Following the . hearing, the trial court granted partial summary judgment to Connell on Roberts’ informed consent claims, finding that

[t]here is no common law duty of informed consent in Georgia; instead, a physician’s duty to disclose certain information and thereafter obtain a patient’s consent was created by the Legislature and codified at OCGA § 31-9-6.1. . . . Subsection (a) limits such claims to procedures involving “general anesthesia, spinal anesthesia, or major regional anesthesia.” Of the three forms of anesthesia listed, at issue here is whether [Roberts] was administered “major regional anesthesia.” ... To include the mouth and jaw within the meaning of “major regional anesthesia” would go beyond the explicit definition of “major region.”

On appeal, Roberts contends that the trial court erred in granting partial summary judgment to Connell on the informed consent claim. She asserts that there are separate and distinct methods to the pursuit of an informed consent case that the trial court failed to consider — the standard inherent to a malpractice claim, and the statutory standard.

1. Regarding the informed consent inherent within the malpractice claim, Roberts argues that “[t]he concept and requirement of informed consent is included within the definition of the standard of care in medical malpractice actions under Georgia law.” Roberts maintains that Connell testified that the standard of care for his practice required him to obtain the patient’s informed consent to treatment and inform the patient as to, among other things, diagnosis, recommended treatment, alternative procedures, and expected outcome. Roberts’ claim, which is essentially a claim that there is a common law duty to obtain informed consent, is without merit.

“Consent” in a medical context involves two distinct legal principles. One is “basic” consent, or that consent to a touching which avoids a battery. A medical touching without consent constitutes the intentional tort of battery for which an action will lie. The other consent is “informed” consent, which addresses the autonomy of a competent patient to determine what medical treatment he will allow or refuse. Informed consent essentially involves a medical professional fully informing a patient of the risks of and alternatives to the proposed treatment so that the patient’s right to decide is not diminished by a lack of relevant information.

(Footnotes omitted.) Pope v. Davis, 261 Ga. App. 308, 309 (1) (582 SE2d 460) (2003).

Our Supreme Court expressly stated in Albany Urology Clinic v. Cleveland, 272 Ga. 296 (528 SE2d 777) (2000), that Georgia does not recognize a common law duty to inform patients of the material risks of a proposed treatment or procedure. The Court explained:

Prior to 1988, Georgia physicians were not required to disclose to their patients any of the risks associated with a particular medical treatment or procedure. Hence, before 1988, a physician’s “silence as to risk” was not actionable and could not be the basis of a patient’s claim of fraud. Although a physician did then and does now have a common law duty to answer truthfully a patient’s questions regarding medical or procedural risks, absent such inquiry the common law of this state does not designate the failure to disclose such risks a fraud that may vitiate a patient’s consent to medical procedures. As established by pre-1988 precedent, under the common law, evidence of a failure to reveal the risks associated with medical treatment is not even admissible in support of a claim for professional negligence.

(Footnotes omitted.) Id. at 298 (1).

Thus, as “the doctrine of informed consent for health procedures and treatment is defined in Georgia exclusively by statutes and regulations,” Blotner v. Doreika, 285 Ga. 481, 484 (2) (678 SE2d 80) (2009), this claim is meritless.

2. Roberts also argues that because her dental procedure involved “general anesthesia, spinal anesthesia, or major regional anesthesia,” Connell had a statutory duty to obtain her informed consent.

Per OCGA § 31-9-6.1,

any person who undergoes any surgical procedure under general anesthesia, spinal anesthesia, or major regional anesthesia . . . must consent to such procedure and shall be informed [of the diagnosis, nature, and purpose of the surgical or diagnostic procedure, material risks of the procedure, likelihood of success, the practical alternatives to the procedure, and the prognosis if the procedure is rejected].

See OCGA § 31-9-6.1 (a) (l)-(6).

Roberts maintains that she was administered “major regional anesthesia” during her procedure. She bases her allegation primarily on Connell’s affirmative response during his deposition when he was asked: “So it’s fair to say that your intention in administering those nerve block injections would be to provide major regional anesthesia in that area of the mouth that you were working on?” But defining “major regional anesthesia” as applied in this case is an issue of statutory interpretation; thus, Connell’s opinions regarding this issue were not admissions in judicio. See Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 518 (1) (434 SE2d 63) (1993) (admissions in judicio are admissions of fact, not those that are merely the opinion or conclusion of the pleader as to law or fact). Further, we have specifically held that “neither the mouth nor the jaw is considered a major region [under] OCGA § 31-9-6.1 (a).” Thompson v. Princell, 304 Ga. App. 256, 259 (a) (696 SE2d 91) (2010) (Generally, “major region” is defined as an “entire arm, leg, torso, or any combination thereof.”).

Decided November 14, 2011

Curtis A. Thurston, Jr., for appellant.

Hall, Booth, Smith & Slover, Jack G. Slover, Jr., Kevin A. Leipow, for appellees.

Accordingly, the trial court did not err in granting partial summary judgment to Connell on Roberts’ informed consent claim.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: McFadden, Judge.

text:
    A11A1889, A11A1931.
    FARMER et al. v. BRANCH BANKING & TRUST COMPANY (two cases).
    (718 SE2d 867)
   McFadden, Judge.

In these consolidated appeals, Dana D. Farmer and Howard Smith contend that the trial court erred in approving the applications of Branch Banking & Trust Company (the Bank) to confirm the foreclosure sales of two pieces of real property. They argue that Farmer did not receive the notice required for confirmation under OCGA § 44-14-161 (c); that the court should have dismissed Smith from the confirmation proceeding on one of the properties due to his “lack of any involvement” in the loan; and that the Bank’s evidence of the true market value of the properties at the time of foreclosure was incompetent. The appellate record does not contain a transcript of the evidence and testimony at the confirmation hearing. Consequently, Farmer and Smith have not met their burden as appellants of demonstrating error by the record, and we must affirm.

Decided November 14, 2011.

“The trial court is the trier of fact in a confirmation proceeding, and [we] will not disturb its findings if there is any evidence to support them. We are not, however, bound by the trial court’s conclusions of law, which are subject to de novo review” (Citations and punctuation omitted.) TKW Partners v. Archer Capital Fund, 302 Ga. App. 443 (691 SE2d 300) (2010).

After a hearing on the confirmation applications at which evidence was presented, the trial court concluded that the Bank had “fulfilled all the legal requirements of conducting a non-judicial foreclosure sale required by statute, including notice, advertisement and conduct of sale” and that the properties had been sold for their true market values in the foreclosure proceedings.

In their claims of error, Farmer and Smith challenge whether Farmer received the statutorily-required notice under OCGA § 44-14-161, whether Smith had “any involvement” with the loan on one of the properties, and whether the Bank presented evidence that the properties brought their true market values in the foreclosure sales. To resolve each of these issues requires us to review the evidence and testimony submitted by the parties during the confirmation hearing. Farmer and Smith, however, did not include the transcript of that hearing in the appellate record, and no statutorily authorized substitute for the hearing transcript was submitted. See Alexander v. Jones, 216 Ga. App. 360, 361 (1) (454 SE2d 539) (1995). Thus, we have no means to determine what evidence was introduced in support of any of the parties’ positions on these issues. Roberts v. Windsor Credit Svcs., 301 Ga. App. 393, 396 (2) (687 SE2d 647) (2009).

The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where, as here, the transcript is necessary for review and [the] appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.

(Citations and punctuation omitted.) Roberts, supra at 396 (2). Accordingly, we must affirm the trial court’s judgments granting the Bank’s confirmation applications. Id.

Judgments affirmed.

Phipps, P J., and Andrews, J., concur.

Dana D. Farmer, pro se.

Howard Smith, pro se.

Patrick J. Geheren, W. Anthony Collins, Jr., James R. Fletcher II, for appellee.


author: Dillard, Judge.

text:
    A11A0990.
    CRITTENTON et al. v. SOUTHLAND OWNERS ASSOCIATION, INC. et al.
    (718 SE2d 839)
   Dillard, Judge.

In this declaratory-judgment action, India Crittenton, Lynette Rogers, Terrence Myles, David Hale, and Muneerah Sabir (collectively “plaintiffs”) sued the Southland Owners Association, Inc. (“SOA”) and several members of its board of directors (collectively “defendants”), claiming that defendants (1) improperly invalidated a March 2010 election (which resulted in all five plaintiffs obtaining seats on the board), and (2) negligently misused association funds. Shortly after plaintiffs filed suit, a second election was held in August 2010, which resulted in four of the five plaintiffs obtaining seats on the board. Subsequently, the trial court dismissed plaintiffs’ claims on the ground that the controversy was now moot. Plaintiffs appeal, arguing that the trial court erred in holding that no justi-ciable issues remained after the August 2010 election. For the reasons set forth infra, we affirm.

The record shows that in February 2010, SOA, which serves as the homeowners’ association for residents of a neighborhood known as the Southland Community in Stone Mountain, mailed a newsletter to all homeowners, in which it informed them that only homeowners who were current in the payment of their assessments would be allowed to vote in the upcoming election for SOA’s board of directors. But shortly before the election, the current SOA board decided to allow all homeowners to vote regardless of whether they had assessments that remained unpaid. This decision, which was initially made during an informal board meeting and without notifying homeowners, increased the number of homeowners eligible to vote from 625 to 1,147.

In late February through early March 2010, the election (the “March election”) was held via the mailing of ballots to SOA’s management company. Shortly thereafter, but prior to the election votes being counted, the board sent out an e-mail to a small number of homeowners, indicating that a quorum of voters was not required to elect the board of directors. After the votes were tallied, it appeared that India Crittenton, Lynette Rogers, Terrence Myles, David Hale, and Muneerah Sabir had successfully been elected to serve as members of SOA’s board of directors. However, on March 27, 2010, at SOA’s annual meeting, SOA’s election committee chairperson announced that the election was invalid because of the lack of a quorum and that the incumbent board of directors would continue to serve until a new election could be held.

Based on their belief that the current board had improperly invalidated the March election, plaintiffs filed a lawsuit against SOA and the then-current members of its board of directors. In their complaint, plaintiffs sought a temporary restraining order (“TRO”) to enjoin the second election, which was scheduled for August 2, 2010; a declaratory judgment that the March election was valid; and damages based on current-board members’ allegedly negligent misuse of SOA funds. Following a July 28, 2010 hearing, the trial court denied plaintiffs’ petition for a TRO. Consequently, the August 2, 2010 election (the “August election”) proceeded as scheduled and resulted in all of the plaintiffs, except Lynette Rogers, being elected to the board. Shortly thereafter, defendants filed a motion for judgment on the pleadings, arguing, inter alia, that plaintiffs’ claims were derivative in nature, and thus, they did not have standing to sue SOA directly. After holding a hearing on defendants’ motion and several other issues, the trial court dismissed plaintiffs’ complaint based on its finding that the August election rendered plaintiffs’ claims moot. This appeal follows.

1. Plaintiffs contend that the trial court erred in dismissing their complaint on the ground that the August election for SOA’s board of directors rendered their claims moot. With respect to plaintiffs’ petition for the trial court to declare the March election valid, we find that this claim was properly dismissed.

At the outset, we note that on appeal, this Court conducts “a de novo review of a trial court’s ruling on a motion to dismiss.” In doing so, “[o]ur role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiffs favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts”; however, we “need not adopt a party’s legal conclusions based on these facts.” With these guiding principles in mind, we will now address plaintiffs’ arguments.

It is well settled that “[a] declaratory judgment may not be granted in the absence of a justiciable controversy.” Prior to a grant of declaratory judgment, a

plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.

In sum, “[ajbsent an actual controversy involving palpable insecurity, the trial court lacks jurisdiction to render a decision.”

And here, with respect to the March election, plaintiffs have failed to demonstrate that they were in need of guidance from the trial court to protect them from uncertainty regarding some future conduct. Indeed, the declaratory-judgment count of plaintiffs’ complaint alleges that "[a]n actual controversy exists as to whether the [March] election of Directors of the [S]OA was valid and consequently whether Defendants have been acting ultra vires as they continued to govern the SOA after the election concluded.” In the same count, plaintiffs further allege that the trial court “has the power to declare rights of Plaintiffs as parties interested in the outcome of the election” and “has the power to make a declaration of whether the election should stand . . . .” Additionally, in their prayer for relief, plaintiffs petition the trial court to “[ejnter an order declaring the election held in February — March 2010 valid[.]” In summary, plaintiffs sought to have the trial court validate a past event. Thus, with respect to the March 2010 election, plaintiffs were not entitled to declaratory judgment, “which in this context[,] would be nothing more than an advisory opinion from the trial court as to which party would succeed on the merits of any claim” pertaining to the outcome of that election.

2. Furthermore, plaintiffs’ remaining portion of their petition for declaratory judgment regarding the proper election-voting procedures under SOA’s bylaws, their negligent misuse of association funds claim, and their attorney-fees claim were also properly dismissed. While we disagree with the trial court that those claims are moot, we nevertheless find that plaintiffs lacked standing to sue on those claims individually rather than derivatively.

A “derivative suit is brought on behalf of [a] corporation for harm done to it[,] and any damages recovered are paid to the corporation.” And although plaintiffs may bring direct actions for injuries done to them in their individual capacities by corporate fiduciaries, our Supreme Court has held that “to have standing to sue individually, rather than derivatively on behalf of the corporation, the plaintiff must allege more than an injury resulting from a wrong to the corporation.” In fact, “to set out an individual action, the plaintiff must allege either an injury which is separate and distinct from that suffered by other [members], or a wrong involving a contractual right of a [member] which exists independently of any right of the corporation.” Thus, “[f]or a plaintiff to have standing to bring an individual action, he must be injured directly or independently of the corporation.” Furthermore, “[t]he determination of whether a claim is derivative or direct is made by looking to what the pleader alleged,” and “[i]t is the nature of the wrong alleged and not the pleader’s designation or stated intention that controls the court’s decision.”

And here, plaintiffs’ remaining claims do not constitute special injuries that are separate and distinct from any injury to SOA as a corporation. Plaintiffs’ declaratory-judgment claim as to whether the defendants employed the proper election-voting procedures under SOA’s bylaws is essentially a claim that defendants breached their fiduciary duties owed to SOA and all of its members. Indeed, election procedures properly conducted in accordance with the bylaws benefit all members; just as election irregularities harm all the members of a corporation. Additionally, plaintiffs’ claim for damages based on defendants’ allegedly negligent misuse of association funds and their claim for attorney fees do not constitute special injuries because “[t]he general rule is that a shareholder seeking to recover misappropriated corporate funds may only bring a derivative suit.” Thus, given that plaintiffs’ remaining claims were derivative, resulting from an injury to SOA, plaintiffs had no standing to bring a direct action based on those claims.

Decided October 27, 2011

Reconsideration denied November 15, 2011.

Jones Martin, Samira J. Martin, for appellants.

Weissman, Nowack, Curry & Wilco, Jason A. LoMonaco, for appellees.

Accordingly, we affirm the dismissal of plaintiffs’ claims, albeit for reasons different than those articulated by the trial court.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 145 (682 SE2d 165) (2009) (citation omitted).

         Id. (citation and punctuation omitted).

        Southwest Health & Wellness, LLC v. Work, 282 Ga. App. 619, 623 (2) (639 SE2d 570) (2006) (citation and punctuation omitted).

        Effingham County Bd. of Commrs. v. Effingham County Indus. Dev. Auth., 286 Ga. App. 748, 749 (650 SE2d 274) (2007) (citation and punctuation omitted).

        Id. (citation and punctuation omitted) (emphasis added); see OCGA § 9-4-2 (a), (b).

        Effingham County Bd. of Commrs., 286 Ga. App. at 749 (citations and punctuation omitted).

        Richardson v. Phillips, 302 Ga. App. 305, 310 (1) (690 SE2d 918) (2010) (citations and punctuation omitted) (finding that plaintiff was not entitled to declaratory relief regarding the validity of a multi-party transaction that was already completed); see Glynn-Brunswick Memorial Hosp. Auth. v. Gibbons, 243 Ga. App. 341, 345 (1) (530 SE2d 736) (2000) (holding that plaintiff was not entitled to declaration regarding whether defendant’s actions in executing a services-contract were prohibited).

        See Merry v. Williams, 281 Ga. 571, 572-73 (2) (642 SE2d 46) (2007) (holding that request for declaratory judgment as to the proper method for mayor and city council to count abstention votes under city charter was not moot despite the fact that former mayor, who plaintiff alleged misinterpreted charter, was no longer in office).

        Southwest Health & Wellness, LLC, 282 Ga. App. at 624 (2) (b) (citation omitted).

        Phoenix Airline Svcs. v. Metro Airlines, Inc., 260 Ga. 584, 586 (1) (397 SE2d 699) (1990) (citation and punctuation omitted).

        Id. (citation and punctuation omitted).

        Id. (citation and punctuation omitted).

        Southwest Health & Wellness, LLC, 282 Ga. App. at 624 (2) (a) (citation and punctuation omitted).

        See Dunn v. Ceccarelli, 221 Ga. App. 505, 508 (489 SE2d 563) (1997) (physical precedent only) (noting that “gravamen of the complaint” was that defendants “breached their fiduciary duties in the management of the corporation by wrongfully controlling the election results,” and that the “general rule is that breach of fiduciary duty actions against corporate officers for harm to the corporation are derivative and not direct”).

        Southwest Health & Wellness, LLC, 282 Ga. App. at 625 (2) (b) (citation and punctuation omitted); see Matthews v. Tele-Systems, 240 Ga. App. 871, 872 (2) (525 SE2d 413) (1999).

        See Holland v. Holland Heating & Air Conditioning, Inc., 208 Ga. App. 794, 797-98 (3) (432 SE2d 238) (1993).

        See Walker County v. Tri-State Crematory, 292 Ga. App. 411, 412 (664 SE2d 788) (2008) (“The dismissal of a complaint will be affirmed if right for any reason.” (citations omitted)).


author: Blackwell, Judge.

text:
    A11A1036.
    HIGGINBOTHAM et al. v. KNIGHT.
    (719 SE2d 1)
   Blackwell, Judge.

Gary Knight owns Lot 14 in Phase 2 of the Toccoa Heights subdivision in Fannin County, and Daryle and Rebecca Higgin-botham own several adjacent lots in the same subdivision. Knight claims that he has an easement across the Higginbothams’ lots, and he brought this suit against the Higginbothams and the developers of the subdivision, seeking a declaratory judgment as to the easement and injunctive relief to protect his right to use the easement from nuisance and other interference. Both Knight and the Higgin-bothams moved for summary judgment, and after concluding that Knight does, in fact, have an easement across the Higginbothams’ lots, the court below awarded partial summary judgment to Knight on his claim for declaratory relief and denied summary judgment to the Higginbothams, who now appeal from both rulings. We find that the relevant agreements, deeds, and plats are ambiguous about whether Knight has an easement across the Higginbothams’ land and that this ambiguity cannot be resolved at summary judgment but, instead, must be resolved by a trial. Accordingly, we reverse the award of partial summary judgment to Knight, and we affirm the denial of summary judgment to the Higginbothams.

Summary judgment is warranted when the material facts, as shown by the pleadings and record evidence, are undisputed and these facts entitle the moving party to judgment as a matter of law. See OCGA § 9-11-56 (c). We review de novo the grant or denial of a motion for summary judgment. See Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (grant of motion for summary judgment); Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010) (denial of motion for summary judgment). And we review the record evidence on appeal in the same way as the court below, that is, in the light most favorable to the nonmoving party. See Merlino v. City of Atlanta, 283 Ga. 186 (657 SE2d 859) (2008).

The record shows that in May 2003, the Higginbothams purchased three adjacent lots in the Toccoa Heights subdivision: Lots 13, 18, and 19. The parties do not dispute that all of the owners of lots in the subdivision are bound by a road easement agreement that the developers recorded in 2001. This agreement “grant[s] an easement along the road system within the boundaries of the [subdivision] for ingress and egress to each Purchaser, their heirs, and assigns, of lots or property within [the subdivision],” but the agreement does not identify by name, description, definition, or otherwise the specific pathways that constitute the “road system.” The recorded plats for the subdivision depict at least three kinds of pathways that arguably might be considered part of this “road system.” First, the plats depict three pathways that are designated as a “road” — Toccoa Heights Road, Fish Trap Road, and River Heights Road — with a width of 18 feet. Second, the plats show several “access drives” that are 12 feet wide. Finally, the plats depict numerous other “drives,” all of which are ten feet in width.

The Higginbothams’ lots are accessible by use of a single pathway — at least a portion of which is identified in the plats as a “12' gravel access drive with 20' ingress-egress and utility easement” — that traverses the lots and connects to River Heights Road at Lot 19, the southernmost lot owned by the Higginbothams, and it is over this pathway that Knight claims an easement. From its intersection with River Heights Road at Lot 19, the pathway proceeds to the northeast, passing through Lots 19 and 18 to the boundary of Lot 13, the northernmost lot owned by the Higginbothams, upon which they have erected a cabin, and it is this portion of the pathway that is clearly designated as an “access drive.” When the pathway comes to the boundary of Lot 13, it appears to continue, according to the plats, across Lot 13, although the portion of the pathway upon Lot 13 is not expressly identified as an “access drive” or any other particular kind of pathway. Upon Lot 13, the unidentified pathway forks, dividing into a short route that clearly terminates within the boundaries of Lot 13 and a second route that runs across Lot 13 and appears to end at or upon the boundary between Lots 13 and 14. In 2004, the Higginbothams erected a gate across the entrance to the access drive on Lot 19, near the point at which the access drive connects to River Heights Road, and they installed a cable across the unidentified pathway that crosses Lot 13, near its end at the boundary of Lot 14.

Knight purchased Lot 14 in January 2006. Whether or not Knight has a right to use the access drive across Lots 18 and 19 and the unidentified pathway that runs across Lot 13 to the boundary of Lot 14, it is undisputed that he also can access Lot 14 by means of a second “access drive” that connects to River Heights Road and clearly terminates within the boundaries of Lot 14 without crossing the Higginbothams’ lots. Knight also purchased seven other lots in the subdivision, and he built rental cabins on each of his lots. Knight sought to give his renters access to the Toccoa River, which runs immediately to the north of Lots 13 and 14, over the access road and unnamed pathway that pass through the Higginbothams’ property. But the Higginbothams have refused, instructing Knight that his renters instead should use the pathway that Knight constructed on Lot 14, which apparently connects with the access drive that terminates within the boundaries of Lot 14, to get to the river.

The parties agree that their property rights are governed by their deeds, the recorded plats referenced by the deeds, and the road easement agreement. A deed is a contract, and whether a deed and any documents incorporated in the deed by reference create an easement is a question of law that properly is resolved by the trial court to the extent that the deed is unambiguous or that any ambiguities can be resolved by application of accepted rules of construction. Dept, of Transp. v. Meadow Trace, Inc., 274 Ga. App. 267, 269 (1) (617 SE2d 246) (2005). If the contract is clear and unambiguous, a court must enforce the contract according to its terms. Peaches Land Trust v. Lumpkin County School Bd., 286 Ga. App. 103, 105 (1) (648 SE2d 464) (2007). If the contract is ambiguous, a court must apply the pertinent rules of contract construction to resolve the ambiguity and determine the intent of the parties. Id. But if an ambiguity remains even after the application of the rules of construction, the ambiguity must be resolved at trial by a jury. Id.

Here, the road easement agreement gives an easement “along the road system” to each owner of a lot in the subdivision, but nothing in the agreement, deeds, or plats specifies whether the pathway that crosses Lot 13 to the boundary of Lot 14 is part of this “road system.” In fact, nothing identifies the precise pathways that constitute the “road system,” whether by name, definition, description, or a unique marking upon the plats. Although the plats do contain a section designated “Roadway Data,” this section refers only to Toccoa Heights Road, Fish Trap Road, and River Heights Road. Knight offers three reasons to believe that the pathway that runs across Lot 13 and terminates at or near the boundary of Lot 14 is part of the “road system.”

First, Knight notes that every pathway shown on the plats is depicted by a symbol that represents, according to the legend, either a “paved road,” “gravel road,” or “dirt road.” Because there is no separate symbol in the legend for “access drives” and other “drives,” Knight argues that every pathway must be a “road” and, therefore, part of the “road system.” But if that were so, then not only would the unidentified pathway that crosses Lot 13 to its boundary with Lot 14 constitute a part of the “road system,” but so would the numerous “drives” throughout the subdivision, most of which appear to each serve only a single lot and seem to be nothing more than driveways. The terms of a contract should be understood in the way that is most reasonable and probable, and accepting Knight’s understanding of the legend of the plats would lead to the arguably absurd result of everyone in the neighborhood having an easement across the driveway of each of his neighbors. See Office Depot v. The District at Howell Mill, 309 Ga. App. 525, 530 (2) (710 SE2d 685) (2011). It seems just as likely, if not more so, that the legend of the plats is meant simply to identify which pathways are dirt, which are gravel, and which are paved and is not intended to signal that every pathway in the subdivision, including each of the “drives,” is part of the “road system.” See Miller v. Slater, 182 Ga. 552, 556 (1) (186 SE 413) (1936) (term “driveway” generally means a pathway for the exclusive use of the property owner).

Knight also claims that the pathway across Lot 13 must be a part of the “road system” because it is identified on the plats as an “access drive,” but as noted earlier, it is not clear to us that it is so identified. To be sure, as the pathway crosses Lots 19 and 18, it clearly is identified as an “access drive.” As it appears on the plats, however, the pathway narrows at the boundary between Lots 18 and 13. Like the other “access drives” depicted on the plats, the pathway is represented by five parallel lines as it crosses Lots 19 and 18, but it is depicted by only three parallel lines after it crosses onto Lot 13, as are the other “drives” depicted on the plats. And even though the pathway across Lot 13 is not specifically identified on the plats as a “drive” — this portion of the pathway bears no specific identification at all — there are other pathways on the plats that appear to be driveways serving individual lots and, like the pathway across Lot 13, are not specifically identified as “drives” or otherwise. Consequently, even if we accepted that the pathways designated as “access drives” are part of the “road system” of the subdivision, whether Knight has an easement over the pathway that leads across Lot 13 to its boundary with Lot 14 — which, according to the plats, might be a mere “drive,” as opposed to an “access drive” — still would be unclear.

Finally, Knight claims that the plats “clearly” show that the disputed pathway crosses over the boundary between Lot 13 and Lot 14 and “onto” Lot 14. We cannot agree. From our visual inspection of the plats, including enlargements of pertinent portions of the plats that are contained in the record, we simply cannot ascertain whether the pathway ends at the boundary between the lots or crosses barely over the boundary line. Like the other ambiguities that appear from the road easement agreement, the deeds, and the plats, the depiction of the disputed pathway on the plats at the point it intersects the boundary between Lots 13 and 14 is ambiguous and does not clearly indicate whether the pathway crosses the boundary.

None of these ambiguities can be resolved by applying the usual rules of contract construction. Although extrinsic evidence properly may be considered to determine the intent of the parties, the extrinsic evidence in this case is disputed and does not resolve for purposes of summary judgment whether the disputed pathway is part of the “road system” of the subdivision. See Peaches Land Trust, 286 Ga. App. at 105 (1). The Higginbothams and Knight each presented affidavits of their own surveyor to provide an expert opinion about whether Knight has an easement over the disputed pathway, and the surveyors came to opposite conclusions. Because the evidence points both ways, neither party was entitled to summary judgment on the question of whether Knight has an easement across the Higginbothams’ lots. Accordingly, we must reverse the award of summary judgment to Knight on his claim for declaratory relief. See id. at 105-106 (1).

If it turns out after a trial that Knight, in fact, has an easement across the Higginbothams’ lots, he may be entitled to injunctive relief to protect his use of the easement from nuisance or other interference. There is some evidence that Knight purchased his lots in the subdivision based upon an understanding that he and his renters could use the pathway across the Higginbothams’ lots as access to the Toccoa River, that the Higginbothams have refused his requests to access the river by this pathway, that the Higginbothams have actively prevented him from doing so by erecting structures across the pathway, and that the Higginbothams have thereby caused him harm. In light of this evidence and the open question about whether Knight has an easement at all, there are genuine and disputed issues of material fact that preclude summary judgment on Knight’s claims for nuisance and injunctive relief. See Davis v. Overall, 301 Ga. App. 4, 5-6 (1) (686 SE2d 839) (2009) (interference with easement rights may support claim for nuisance); Rife v. Corbett, 264 Ga. 871 (455 SE2d 581) (1995) (interference with easement rights may warrant injunctive relief); see also Greenwald v. Kersh, 265 Ga. App. 196, 201-202 (1) (593 SE2d 381) (2004). Accordingly, we affirm the denial of the Higginbothams’ motion for summary judgment on these claims.

Judgment affirmed in part and reversed in part. Barnes, E J., and Adams, J., concur.

APPENDIX A

Decided September 27, 2011

Reconsideration denied November 15, 2011

Haynie, Litchfield & Cranie, Douglas R. Haynie, Daniel W White, Barbara A. Sosebee, Brock, Clay, Calhoun & Rogers, Richard W. Calhoun, for appellants.

Sams, Larkin & Huff, James A. Balli, for appellee.

APPENDIX B

       On appeal, the Higginbothams also contend that the court below erred when it entered a protective order that precluded them from taking the depositions of the developers without Knight’s consent and when it entered a temporary injunction that required the Higginbothams to take affirmative steps to open the alleged easement to Knight. Neither of these contentions has merit, and neither warrants much discussion. As to the protective order, the record shows that the Higginbothams had known the identity of the developers for many years, that the Higginbothams made no effort to obtain discovery from the developers during the time permitted for discovery, and that the time for discovery had ended several months before the Higginbothams sought to notice the depositions of the developers. In these circumstances, it was no abuse of discretion for the court to disallow the depositions of the developers, and we affirm the protective order. See Leventhal v. Seiter, 208 Ga. App. 158, 161 (1) (430 SE2d 378) (1993) (denial of motion to compel untimely discovery was no abuse of discretion); see also Bullard v. Bouler, 272 Ga. App. 397, 398 (1) (612 SE2d 513) (2005) (trial courts have broad discretion with respect to extending or reopening discovery). As to the temporary injunction, it expired by its own terms before this appeal was taken, and the Higginbothams never obtained a supersedeas of the injunction, rendering their appeal now from the injunction moot. See Grindle v. Chastain, 229 Ga. App. 386, 388 (1) (493 SE2d 714) (1997) (“To prevent the appeal of a mandatory injunction from becoming moot, it is necessary for the appealing party to obtain a supersedeas.”) (citation and punctuation omitted).

       A copy of the plat depicting the southernmost portions of the disputed pathway is attached to this opinion as Appendix A. A copy of the portion of the plat showing the northernmost part of the pathway as it traverses over Lot 13 is attached as Appendix B.

       The parties dispute exactly where the latter pathway ends. According to Knight, the plats show the pathway crossing the boundary onto Lot 14, but the Higginbothams say that the plats depict the pathway “stopping abruptly” at the boundary between Lots 13 and 14. As discussed later in this opinion, our examination of the plats does not allow us to ascertain whether the pathway ends at the boundary between the two lots or if it crosses over the boundary onto Lot 14.

       Knight claims that, because the terrain on Lot 14 is especially steep, the pathway across Lot 13 is the only pathway that provides reasonable vehicular access to the Toccoa River.

       Because we are not sure whether the designation of this pathway as an “access drive” is meant to apply to the pathway after it crosses onto Lot 13, we are equally unsure whether its designation as an “ingress-egress and utility easement” is meant to apply to the portion of the pathway upon Lot 13. It could be that the “ingress-egress” easement designation was intended only to apply to the portion of the pathway on Lots 18 and 19, giving whoever owned Lot 13 an easement across that portion of the pathway to afford access to Lot 13. This reading of the plats is plausible because Lot 13 otherwise would be inaccessible from any of the named roads of the subdivision.

       The Higginbothams also presented evidence that, although the plats indicate that all roads were “existing and stabilized” at the time the plats were recorded, the disputed pathway actually ended “well within” the boundaries of Lot 13, and no survey markings or other landmarks designated a pathway, whether existing or planned, that ran to the boundary of Lot 14.


text:
    A11A1274.
    STAFFORD v. BRYAN COUNTY.
    (718 SE2d 832)
   Dillard, Judge.

This discretionary appeal was granted after Charles Stafford received a citation for violating Bryan County Ordinance 6-403, which requires that landowners obtain a permit before engaging in land-disturbing activity. Stafford contended that he was acting under an exemption, namely that he was engaged in forestry land-management practices pursuant to Paragraph 6 of the ordinance and, thus, that a permit was not required. The Magistrate Court of Bryan County issued a judgment against Stafford, finding that he violated the ordinance and fining him $4,000. Thereafter, Stafford filed a petition for certiorari with the Superior Court of Bryan County, which was denied.

On appeal to this Court, Stafford enumerates the following as errors: (1) that the Bryan County ordinance is overly broad and void for vagueness under the United States and Georgia Constitutions or, in the alternative, that the ordinance is preempted by State law; (2) that the magistrate court exceeded its constitutional authority by allegedly granting injunctive relief; and (3) that the superior court made an impermissible factual determination in denying the petition for certiorari. We granted Stafford’s discretionary appeal and, for the reasons discussed infra, we remand this case to the superior court.

The record shows that Stafford raised a constitutional challenge to the Bryan County ordinance before both the magistrate court and the superior court, arguing that the ordinance at issue is vague and failed to place him on notice of the prohibited activities; however, neither court issued a ruling on this argument before finding him in violation of the ordinance and imposing fines upon him. Because a decision on the constitutional issue has the potential to render Stafford’s remaining contentions moot, and because we do not have jurisdiction to consider the merits of Stafford’s challenge without a ruling from the court below, we vacate the superior court’s denial of Stafford’s petition for certiorari and remand the case for consideration of his constitutional challenge.

Decided October 20, 2011

Reconsideration denied November 15, 2011.

Arnold, Stafford, Randolph & Schaeffer, Jeffery L. Arnold, Andrew S. Johnson, for appellant.

Brown, Rountree & Stewart, Charles H. Brown, Jesse A. Van Sant, for appellee.

Judgment vacated and case remanded with direction.

Smith, P. J., and Mikell, J., concur.

       The challenged portion of the permit-exemption ordinance reads as follows:
      This ordinance shall apply to any land-disturbing activity undertaken by any person on any land except for the following: . . . Forestry land management practices, including harvesting; provided, however, that when such exempt forestry practices cause or result in land-disturbing or other activities otherwise prohibited in a buffer ... no other land-disturbing activities, except for normal forest management practices, shall be allowed on the entire property upon which the forestry practices were conducted for a period of three (3) years after completion of such forestry practices!.1
      Bryan County, Ga. Ordinance 6-403, ¶ 6 (Revised Oct. 13, 2009). The ordinance was adopted pursuant to OCGA § 12-7-4 and tracks OCGA § 12-7-17 (6). OCGA § 12-7-17 provides for exceptions from the permitting requirements of OCGA § 12-7-7, and subsection (6) reads as follows:
      This chapter shall not apply to the following activities: . . . Forestry land management practices, including harvesting; provided, however, that when such exempt forestry practices cause or result in land-disturbing or other activities otherwise prohibited in a buffer ... no other land-disturbing activities, except for normal forest management practices, shall be allowed on the entire property upon which the forestry practices were conducted for a period of three years after the completion of such forestry practices!.1
      OCGA § 12-7-17 (6).

        See City of Decatur v. DeKalb County, 284 Ga. 434, 438 (668 SE2d 247) (2008) (recognizing that a constitutional challenge will not be considered on appeal when it has not been ruled upon in the court below); Buchan v. Hobby, 288 Ga. App. 478, 480 (6) (654 SE2d 444) (2007) (remanding case for consideration of constitutional challenge); see also Blackston v. Dept, of Natural Res., 255 Ga. 15, 18 (334 SE2d 679) (1985) (discussing the technicalities necessary to properly raise a constitutional question on appeal).


author: Adams, Judge.

text:
    A11A1313.
    LINDSEY et al. v. CLINCH COUNTY GLASS, INC. et al.
    (718 SE2d 806)
   Adams, Judge.

Appellants Rebecca Joyann Lindsey and Ted Lindsey brought suit against appellees William Holtzclaw and Clinch County Glass, Inc. after Holtzclaw’s truck collided with Rebecca Lindsey’s vehicle while she was stopped at a red light, causing her to strike the vehicle in front of her. In addition to seeking general and special damages for Rebecca Lindsey’s alleged injuries and loss of consortium, the Lindseys also asserted a claim for punitive damages. The defendants filed a motion for partial summary judgment on the punitive damages claim, and the trial court granted the motion as to that claim only. The Lindseys appeal.

The pertinent facts are undisputed. At the time of the accident, Holtzclaw was the principal of Clinch County Glass, which is a glass installation company. Holtzclaw spent about eight to ten hours of his working day driving; he traveled approximately 100,000 miles a year. Holtzclaw often used his phone while driving and had installed a desk in his truck and mounted his phone on the desk, allowing him to talk hands free into a speakerphone.

At the time of the accident, Holtzclaw was driving his truck to meet a contractor and had started manually searching for a number to call after completing another call. Because he was being inattentive, he failed to notice that traffic was stopped at a red light in front of him until it was too late to avoid colliding with Rebecca’s car. Holtzclaw admitted to the responding officer that he was looking for a number on his phone at the time of the collision and not paying attention; defendants admitted being at fault for the collision in the answer they filed to the complaint.

In Georgia,

[p lunitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

OCGA § 51-12-5.1 (b). And it is well settled that “negligence, even gross negligence, is inadequate to support a punitive damages award. . . . Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage.” (Citations and punctuation omitted.) Brooks v. Gray, 262 Ga. App. 232, 232-233 (1) (585 SE2d 188) (2003). In cases involving automobile collisions, punitive damages are authorized when the accident results from a pattern or policy of dangerous driving, such as excessive speeding or driving while intoxicated, but not when a driver simply violates a rule of the road. Id.; Miller v. Crumbley, 249 Ga. App. 403, 405 (3) (548 SE2d 657) (2001); Carter v. Spells, 229 Ga. App. 441, 442 (494 SE2d 279) (1997).

The Lindseys argue that the evidence that Holtzclaw frequently used his mobile phone while driving although he knew it was dangerous, as demonstrated by the fact that he instructed company employees not to talk on their mobile phones while driving, coupled with the fact that he admitted that he was distracted by looking up a number on his phone at the time of the collision, would authorize a jury to find the requisite pattern or policy of driving dangerously. The Lindseys also argue that defendants conceded in their trial court brief that several studies have shown that talking on a mobile phone while driving is dangerous, perhaps as much or more dangerous than driving while intoxicated.

In Georgia, the proper use of a wireless communication device while driving does not constitute a violation of the duty to exercise due care while operating a motor vehicle. OCGA § 40-6-241. Although Holtzclaw admitted that he was not paying attention because he was distracted by looking up a number and thus was not exercising due care at the time of the accident, as stated above, mere negligence, even gross negligence, is not enough to support a claim of punitive damages; there must be clear and convincing evidence of a pattern or policy of dangerous driving. Brooks, 262 Ga. App. at 232. In this case, there is no evidence that Holtzclaw was speeding, driving while under the influence, or that he had a history of distraction-related accidents, traffic violations, or other evidence that would show a pattern of dangerous driving or other aggravating circumstances so as to authorize an award of punitive damages. Id. at 233-234 (crossing centerline and operating vehicle without a proper license did not warrant imposition of punitive damages); Miller, 249 Ga. App. at 405 (3) (no evidence of pattern or policy of dangerous driving where tortfeasor failed to keep a proper lookout and pled guilty to following too closely). Compare Langlois v. Wolford, 246 Ga. App. 209, 210 (1) (539 SE2d 565) (2000) (punitive damages authorized where tortfeasor left the scene of an accident, was intoxicated, and had a history of prior DUIs and traffic violations). Although there was evidence that Holtzclaw had a pattern of regularly talking on his mobile phone while driving, as stated above, the proper use of a cell phone while driving is permissible in Georgia, and thus the evidence of mobile phone use did not, without more, establish a policy or pattern of dangerous driving. However, in so holding, we would stress that our opinion in this case should not be read for the proposition that punitive damages are never available in a case where a driver causes an accident because he or she was distracted while talking on a wireless communication device. But in this case, where there is no evidence of a policy or pattern of dangerous driving or other aggravating circumstances, the trial court correctly granted partial summary judgment to the defendants on plaintiffs’ claim for punitive damages.

Judgment affirmed.

Barnes, P. J., and Blackwell, concur.

Decided September 14, 2011

Reconsideration denied November 15, 2011

John C. Cotton, Saleem D. Dennis, for appellants.

William H. Hedrick, for appellees.

       Subject to certain exceptions, reading, sending or writing text based communications while driving is now prohibited in Georgia, OCGA § 40-6-241.2, and drivers under age 18 are prohibited from all forms of wireless communication while driving, except in certain specified situations. OCGA § 40-6-241.1.


text:
    A11A0848.
    ADAMS et al. v. D-MONEY ENTERPRISES, INC.
    (718 SE2d 870)
   Doyle, Judge.

D-Money Enterprises, Inc. (“D-Money”) entered into a contract with Bobby J. Thomas in which D-Money agreed to build a daycare center on Thomas’s property. D-Money subsequently filed suit against Thomas, asserting claims for breach of contract and quantum meruit. In the same action, D-Money also sued Dr. Ronald M. Adams and Dunbar Professional Group, Inc. (collectively, “the Appellants”), alleging that they breached a financing agreement associated with the construction; D-Money also asserted a fraud claim against Adams and claims for quantum meruit and attorney fees against the Appellants. The parties filed cross-motions for summary judgment, and the trial court denied the Appellants’ motion, granted D-Money’s motion for summary judgment against Thomas, and granted D-Money’s motion for partial summary judgment against the Appellants. The Appellants challenge the trial court’s rulings on appeal. For the reasons that follow, we affirm in part, vacate in part, and remand.

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.

So viewed, the record shows that D-Money, a contracting firm led by Desmond Brown, entered into a written agreement with Thomas, pursuant to which D-Money agreed to build a daycare center on Thomas’s property in exchange for $684,832. D-Money alleged that shortly thereafter, D-Money “and/or” Brown entered into an oral agreement, which was later reduced to writing, with Dunbar whereby, in exchange for $27,393.28, Dunbar agreed to act as co-guarantor with D-Money on a loan from CB&T Bank of Middle Georgia (“the Bank”) in the amount of $684,832 for the construction of the daycare center. The written Mutual Agreement further provided that Dunbar would “fund all construction draws” for the construction project and would

be responsible for funding of payments, fees, payroll, submitted invoices, receipts that pertain to monies owed from [D-Money] to subcontractors for labor satisfactorily performed and building supply companies for materials at the above[-]mentioned project turned in to be funded on only if passed by [the Bank],

Adams denied signing the Mutual Agreement, and Brown later conceded at deposition that Adams never signed it. Adams testified that he “refused to agree to enter into” the Mutual Agreement proposed by Brown and instead “informed Brown that draws would be paid only upon work satisfactorily performed with approval of [the] Bank.”

On January 26, 2007, Dunbar submitted a construction loan application to the Bank for the purpose of constructing the daycare center on Thomas’s property. In order to approve the loan, the Bank required a guaranty from Thomas, Brown, and a third person, Yolanda Franklin; the guaranty executed by Thomas and Brown provided: “The Undersigned waives any claim, remedy[,] or other right which the Undersigned may now have or hereafter acquire against Borrower[, Dunbar,] . . . whether or not such claim, remedy[,] or right arises in equity, or under contract, statute, or common law.” In consideration for the loan, the bank also required Thomas to execute a Hypothecation Security Agreement, along with a commercial deed granting the bank a security interest in the property. The subsequent loan agreement, which was for $684,832, provided that Dunbar agreed to apply the net proceeds of the loan to the construction project and that Dunbar exercised control over the managerial decisions regarding the use of the loan funds.

Thereafter, the parties got into a disagreement regarding payment to D-Money. According to Adams, Dunbar paid D-Money “for all work actually performed when requested. Dunbar . . . did not pay the draw requests from . . . Brown . . . that could not be supported by sufficient evidence (i.e., invoices, canceled checks, receipts, etc., paid for supplies and/or laborers) as required by the [construction [a]greement.” At some point, Adams, Brown, and Thomas met to discuss the issue, and Thomas instructed Adams not to pay any further amounts to Brown unless and until Brown could support the requests with documentation.

On June 13, 2007, D-Money recorded a materialman’s lien in the amount of $164,603.88 against the property “for materials and labor furnished . . . prior hereto at the instance [sic] of” Thomas and Dunbar. In a subsequent affidavit, Brown testified that because the Appellants refused to pay the remaining $164,603.88 due under their agreement, D-Money “was forced to secure funding elsewhere” in order to complete the project, which had since been completed “pursuant to and in substantial conformity with [the construction contract with Thomas].” According to Adams, “there was not $164,603.88 left over from the construction loan proceeds” on the date that D-Money recorded the lien. Adams testified that after a subsequent accounting of the loan proceeds based on Dunbar’s documentation, the remaining amount of the loan proceeds after all payments and disbursements was $123,683.70; after “additional expenditures” incurred by Dunbar, the residual amount of remaining loan proceeds was $83,940.42.

On October 24, 2007, D-Money filed suit against Thomas and the Appellants, alleging five claims: (1) a breach of contract claim against Thomas arising out of their construction contract; (2) a breach of contract claim against Dunbar arising out of their financing agreement; (3) a fraud claim against Adams, alleging that he purposefully induced D-Money to enter into the financing agreement with no intention of complying with the terms thereof; (4) a quantum meruit claim against both Thomas and Dunbar alleging that in the absence of a contract, D-Money was entitled to recover the reasonable value of the services it rendered in connection with the construction project; and (5) a claim for attorney fees against Adams. Thomas asserted a cross-claim against the Appellants seeking indemnification for any liability pursuant to the construction contract, and the Appellants filed a counterclaim for interpleader, seeking to pay into the registry of the trial court the remaining $83,940.42 in loan proceeds.

The Appellants moved for partial summary judgment as to D-Money’s breach of contract claim arising out of the alleged financing agreement, and the trial court denied the motion, finding issues of fact regarding the existence of a contract between D-Money and the Appellants, as well as fact issues regarding any breach thereof.

D-Money moved for summary judgment as to its breach of contract claim against Thomas, alleging that she had failed to pay him the full amount due despite his completion of the daycare center. The trial court granted D-Money’s motion, entering judgment against Thomas in the amount of $164,603.88, finding that “[t]here is no genuine issue of material fact as to [Thomas’s] breach of the contract and the amount of damages resulting from there.” D-Money also moved for summary judgment “as to the ownership of certain construction loan funds held by [the Appellants],” and the trial court granted the motion and awarded partial summary judgment against the Appellants in the amount of $122,048.90.

1. The Appellants argue that the trial court erred by granting D-Money’s motion for summary judgment as to his breach of contract claim against Thomas. The Appellants, however, do not have standing to appeal this order.

[T]he grant of a motion for summary judgment in a multi-party case will not, standing alone, necessarily authorize the initiation of a direct appeal therefrom by any party to the underlying case. An appeal must be filed by one who has standing to pursue it. OCGA § 9-11-56 (h) gives a losing party the right to a direct appeal from an order granting summary judgment on any issue or as to any party even though the judgment is not final.
A co-defendant does not have any standing to appeal an order granting summary judgment in favor of another defendant when his right has not been adversely affected thereby. Only if the co-defendants are sued as joint tort[ ] feasors does the grant of summary judgment as to one potentially affect the other’s right of contribution. Therefore, it is only in this situation that the co-defendant is deemed a losing party and therefore has standing to appeal the grant of summary judgment to another co-defendant.

Because the Appellants were not losing parties to the trial court’s order granting summary judgment to D-Money as to its breach of contract claim against Thomas, and the Appellants were not sued as joint tortfeasors of Thomas, the Appellants have no standing to file a direct appeal of that order.

2. The Appellants filed a motion for partial summary judgment on D-Money’s breach of contract claim, and the trial court denied the motion. The Appellants appeal this ruling, arguing that (a) the guaranty executed by Brown waived D-Money’s claims against the Appellants; (b) there was no enforceable agreement between the Appellants and D-Money; and (c) they are entitled to summary judgment on D-Money’s breach of contract claim because Brown breached his agreement with Thomas. These arguments are without merit.

(a) The Appellants contend that the guaranty executed by Brown waived D-Money’s claims against them. This argument affords the Appellants no relief.

The guaranty was executed by Brown, not D-Money. The waiver specifically stated “[t]he Undersigned waived any claim, remedy[,] or other right which the Undersigned may have or hereafter acquire against Borrower . . . arising out of the creation or performance of Borrower’s obligation of this guarantee. . . ,” Thus, notwithstanding the Appellants’ arguments to the contrary, by the express terms of the guaranty, the waiver applies to Brown, and it affords the Appellants no relief as to D-Money’s claims against them.

(b) The Appellants maintain that there was no enforceable agreement between Dunbar and D-Money.

The Appellants do not deny that “Dunbar agreed with [D-Money] to obtain a loan for a certain amount for the purpose of constructing a daycare center on real property owned by defendant Thomas.” They contend, however, that Dunbar agreed to disburse the loan proceeds in accordance with the construction loan documents required by the Bank and did not agree to do so in accordance with the Mutual Agreement, which Adams never signed. Regardless, the Appellants argue that even assuming that Dunbar agreed that the loan proceeds were to be disbursed in accordance with the written Mutual Agreement, the agreement constituted an unenforceable “agreement to agree.” Although they cite case law for the general propositions that an agreement is of no effect unless the parties mutually agree to all essential terms and conditions and that an agreement to agree is unenforceable, the Appellants make no attempt to specify which essential terms and conditions are lacking, nor do they explain their bare contention that the agreement is an unenforceable agreement to agree. By failing to do so, they have abandoned this argument.

(c) The Appellants further argue that they are entitled to summary judgment because Brown breached his alleged agreement with Thomas. The Appellants fail to cite any authority for the proposition that Brown’s or D-Money’s purported breach of agreement with Thomas, a third party, somehow bars D-Money’s claims against the Appellants under the doctrine of unclean hands, and we are aware of none. This enumeration is without merit.

Thus, the arguments of the Appellants provide no basis for reversal of the trial court’s order denying their motion for partial summary judgment as to D-Money’s breach of contract claim.

3. Finally, the Appellants contend that the trial court erred by granting partial summary judgment to D-Money.

D-Money filed a motion for partial summary judgment against the Appellants, reiterating that it had alleged claims for breach of contract, fraud, and quantum meruit, and seeking “a partial summary judgment in its favor as to the construction loan funds held by [the Appellants].” Specifically, D-Money sought a judgment in the amount of $83,940.42 (representing the amount held by the Appellants) plus $16,100 (the amount “improperly spent” by the Appellants), arguing that neither the Appellants nor Thomas claimed an interest in the funds at issue. Conceding that the Appellants had not actually executed the Mutual Agreement, D-Money argued that the parties mutually assented to the terms of the Agreement and that the Appellants partially performed pursuant to the terms of the Agreement.

The trial court granted D-Money’s motion for partial summary judgment, concluding that

there are no genuine issues of material fact and plaintiff is entitled [to] the judgment as a matter of law as the owner of certain monies held by . . . Adams and Dunbar ... in the amount of $101,040.42, plus pre-judgment interest at the legal rate of 7% per annum that totals $21,008.48 for a total of $122,048.90; and . . . Adams and Dunbar . . . shall immediately release and turn over said funds they hold in the amount of $122,048.90 to the plaintiff consistent with this [o]rder.

The basis for the grant of partial summary judgment is not clear from the trial court’s order, nor is it clear which claims remain unadjudicated. Although D-Money argues that the Appellants breached the Mutual Agreement, which they partially performed, the trial court did not specify that its award to D-Money was based on its breach of contract claim, nor does the order contain any analysis of the partial performance issues. To the extent that the trial court’s judgment was based on a breach of contract claim, such a ruling would conflict with the trial court’s previous ruling that “[w]hether [D-Money] and [the Appellants] had an agreement or contract is a fact issue[,] and the trier of fact must determine if a contract exists and, if so, whether it has been breached”; the subsequent order offers no basis for resolution of the apparent contradiction. Similarly, the parties fail to analyze the breach of contract issue (including partial performance) in any detail in their appellate briefs regarding this enumeration. Further, it is not clear whether the trial court granted summary judgment to D-Money as to its claims against the Appellants, summary judgment to the Appellants as to their counterclaim for interpleader, or both.

Decided November 15, 2011.

Eric E. Wyatt, for appellants.

Martin Snow, Michael N. White, Clifton Boone, for appellee.

Given the multiplicity of D-Money’s claims, as well as the lack of a stated legal basis for the trial court’s ruling, the apparent contradiction in the two summary judgment orders, and the parties’ confusion on appeal regarding the trial court’s ruling, we vacate the trial court’s order and remand this case to the trial court for clarification.

4. In light of our holding in Division 3, we need not address the Appellants’ remaining enumerations.

Judgment affirmed in part and vacated in part, and case remanded.

Miller, P. J., and Ellington, J., concur.

       Dunbar was a construction firm controlled by Adams.

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

       A copy of the unsigned “Mutual Agreement,” which was dated January 26, 2007, was attached to D-Money’s complaint as an exhibit.

       Franklin is not a party to this action.

       The expenditures included, inter alia, the cost to secure a bond in accordance with the loan agreement with the bank and to secure permanent financing for the project.

       In their counterclaim, the Appellants stated that “[bjecause of the competing claims between . . . Thomas and D-Money . . . , [they are] in genuine doubt as to the proper party entitled to receive the residual amount of the construction loan that is being held by [the Appellants].” Thus, the Appellants sought “in this [¿Interpleader action [to] be allowed to pay into the registry of the [cjourt . . . the amount of $83,940.42, the actual amount of money that is left of the construction loan proceeds” and “[t]hat upon the payment into the registry of the [c]ourt of the amount that is left after payment of fees and additions [sic] expenses associated with the construction of [the daycare center], . . . Dunbar ... be discharged and relieved of any further liability in the matter of any dispute by and between . . . Thomas and . . . Brown and D-Money. ...”

       (Punctuation omitted; emphasis in original.) Shackelford v. Green, 180 Ga. App. 617, 618 (349 SE2d 781) (1986).

       (Citation and punctuation omitted.) Hussey, Gay & Bell v. Ga. Ports Auth., 204 Ga. App. 504, 507 (4) (420 SE2d 50) (1992).

       (Emphasis supplied.)

       See Porter Coatings v. Stein Steel &c. Co., 157 Ga. App. 260, 262 (3) (277 SE2d 272) (1981) (“No construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. . . . The language of the[ ] waiver! ] is clear and unambiguous.”) (citations and punctuation omitted).

       See Lake Tightsqueeze v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 179-180 (1) (435 SE2d 486) (1993).

       See Peacock v. Chegwidden, 238 Ga. App. 328, 332 (3) (518 SE2d 760) (1999).

       We note that the Mutual Agreement contains consideration and mutual promises.

       See Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (“Rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant facts. As we have stated, appellate judges should not be expected to take pilgrimages into records in search of error without the compass of citation and argument.”) (punctuation omitted).

       We note that Thomas’s agreement was with D-Money, not Brown.

       In their brief, the Appellants argue that Brown breached his agreement with Thomas by receiving a commission for using particular materials in the building project without Thomas’s knowledge and that Brown had conflicts of interest and was unable to secure financing.

       Although not raised by the parties, we note that D-Money sought $83,940.42 plus $16,100, which totals $100,040.42, which figure appears inconsistent with the trial court’s award of $101,040.42.

       In its brief in support of its motion for partial summary judgment, D-Money states that it “has numerous other claims, most of which involve disputed facts and will require determination by a jury.”

       D-Money’s brief addresses only the fact that neither the Appellants nor Thomas claims an interest in the funds retained by the Appellants, and it fails to address the basis for the trial court’s award of money beyond that which the Appellants sought to interplead.

       Indeed, D-Money’s brief states that “|.t]he trial court properly granted summary judgment to D-Money on [the Appellants’] interpleader counterclaim.” If, in fact, the trial court solely granted summary judgment as to the interpleader counterclaim (without ruling that the Appellants breached the contract or that D-Money was entitled to relief under his claim for quantum meruit), such a ruling would be erroneous, given that the court awarded a sum greater than that which the Appellants sought to interplead.

       See, e.g., City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369) (2002) (courts have discretion to apply the “right for any reason” rule); Wilken Investments, LLC v. Plamondon, III, 310 Ga. App. 146, 149 (712 SE2d 576) (2011) (vacating the judgment and remanding the case to the trial court for further clarification because this Court could not determine the grounds for granting the motion).