author: BARNES, Presiding Judge.

text:
    A16A0005, A16A0220.
    NORTHSIDE BANK v. MOUNTAINBROOK OF BARTOW COUNTY HOMEOWNERS ASSOCIATION, INC.; and vice versa.
    (789 SE2d 378)
   BARNES, Presiding Judge.

These companion appeals arise from the trial court’s grant of summary judgment to Mountainbrook of Bartow County Homeowners Association, Inc., formerly known as Mountainbrook Property Owners Association (hereinafter “Mountainbrook”). Northside Bank foreclosed on six lots in the Mountainbrook subdivision and when, after several years, Northside did not pay homeowners association assessments on the lots, Mountainbrook filed an action against North-side to foreclose on the property liens and collect the unpaid assessments, interest, late fees and attorney fees. The trial court granted summary judgment to Mountainbrook and awarded $190,904.68 for the unpaid assessments, interest, and late fees, and $65,834.02 in attorney fees.

In Case No. A16A0005, Northside contends that the trial court erred by granting Mountainbrook 18 percent interest on the assessments, by granting Mountainbrook actual attorney fees, rather than “reasonable” attorney fees under OCGA § 13-1-11, and by granting Mountainbrook late fees. In Case No. A16A0220, Mountainbrook contends that the trial court erred by abating post-judgment interest in its order granting Mountainbrook’s motion for supersedeas bond. Summary judgment is proper only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from a trial court’s grant or denial of summary judgment, we “conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party” Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012). Viewed under this standard, the record reveals that in September 2007, Northside took title by foreclosure to six lots in the Mountainbrook subdivision. Northside failed to timely pay the homeowners association assessments owed pursuant to Mountainbrook’s Declaration of Covenants, Conditions, Restrictions and Easements (the “Declaration”) and on May 26, 2009, Mountain-brook filed a complaint for an award of damages and judicial foreclosure of its liens against Northside to collect the past due assessments. Northside answered, asserting multiple counterclaims, including slander of title and breach of covenants, and also filed a third-party complaint against the president of Mountainbrook’s board of directors. Northside further requested the appointment of a receiver to determine if the assessments were being used for the proper purpose.

Mountainbrook filed a motion for summary judgment, which the trial court denied. In the same order, the trial court granted North-side’s request for the appointment of a receiver to “conduct a full and comprehensive audit of [Mountainbrook’s] fund” to determine if the assessments were proper in “form and substance.” Subsequent to the filing of the receiver’s report, Mountainbrook filed a renewed motion for summary judgment and damages in the amount of $ 190,904.68 for “past due annual and special assessments, late fees and interest,” $1,443.11 for costs, and $65,834.02 for attorney fees. Following a hearing, at which the trial court noted that it had adopted all of the receiver’s findings, the trial court granted Mountainbrook’s motion for summary judgment.

Case No. A16A0005

1. Northside contends that because the Declaration does not specify an interest rate, the trial court erred in granting Mountain-brook 18 percent interest on the assessments, rather than the 7 percent interest allowed by law pursuant to OCGA § 7-4-2. We agree.

Mountainbrook’s entitlement to interest on the past due assessments is governed by the contract between the parties, in this case the Declaration. “[T]he parties may establish by written contract any rate of interest, expressed in simple interest terms as of the date of the evidence of the indebtedness, . . . where the principal amount involved is more than $3,000.00.” OCGA § 7-4-2 (a) (1) (A). “The requirement that the rate of interest be expressed in simple interest terms does not mandate numerical terminology but is met by the expression of the method of computation of interest by reference to ‘prime’ or other indices such as ‘base.’ ” (Citation and punctuation omitted.) 1600 Capital Co. v. Bankers First Fed. Savings & Loan Assn., 187 Ga. App. 504, 506 (370 SE2d 668) (1988). However, unless the relevant agreement specifies otherwise, interest is to be awarded atarate of 7 percent per year. Quintanilla v. Rathur, 227 Ga. App. 788 (490 SE2d 471) (1997); OCGA § 7-4-2 (a) (1) (A).

Here, Article VI, Section 8 of Mountainbrook’s Declaration provided that for assessments not paid “within five (5) days after the due date, the assessment shall bear . . . interest from the date of delinquency at the maximum legal rate per annum.” (Emphasis supplied.) In its order granting Mountainbrook’s motion for summary judgment, the trial court found “the proper rate of interest for the unpaid assessments to be 18 percent per annum as the maximum allowable by law provided for in Article VI, Section 8 of the Declaration and based upon the holding in Noons v. Holiday Hospitality Franchising, 307 Ga. App. 351 [(705 SE2d 166) (2010)].”

The trial court’s reliance on Noons is misplaced. In Noons, the contract provided for the lesser of an interest rate of 1.5 percent per month, which is 18 percent a year, or the maximum interest rate allowed by law. 307 Ga. App. at 355 (3). We held that Holiday Inn was entitled to the interest rate designated by the specific terms of the contract of 1.5 percent per month or 18 percent per annum. Id. Although not argued in Noons, OCGA § 7-4-2 did not apply in that case because the parties expressed the rate of interest in the contract (1.5 percent per month or 18 percent per annum), unlike in the Declaration at issue in this case.

Here, contrary to Mountainbrook’s contention, an interest rate of “the maximum legal rate per annum” is not a rate that is definite and ascertainable. Unlike a reference to the “prime rate” which, while not of specific numerical value, is easily computable, the “maximum legal rate per annum” provides no set and certain base for computation. See Stewart v. Nat. Bank of Ga., 174 Ga. App. 892, 893 (1) (332 SE2d 19) (1985). In this case, the term “maximum legal rate” as used in the Declaration is vague and, as such, renders the interest rate indefinite.

Although Mountainbrook maintains that the maximum legal amount under Georgia law is 18 percent pursuant to OCGA § 7-4-16, that statute establishes the maximum interest rate on commercial accounts. The Declaration is not a commercial account. Per OCGA § 7-4-16, a “ ‘[cjommercial account’ means an obligation for the payment of money arising out of a transaction to sell or furnish, or the sale of, or furnishing of, goods or services other than a ‘retail installment transaction.’ ”

OCGA § 7-4-2 governs the rate of interest in contracts where the interest rate is not specified. Because “the maximum legal rate” specified in the Declaration was not definite and ascertainable, the trial court erred in awarding 18 percent interest rather than the 7 percent provided for by OCGA § 7-4-2. Accordingly, that portion of the judgment must be vacated, and the case remanded for recalculation of the interest rate pursuant to OCGA § 7-4-2.

2. Northside also contends that the trial court erred in calculating the attorney fees owed under the Declaration because the amount of fees was governed and limited by OCGA § 13-1-11. We do not agree.

“The general rule is that expenses of litigation, including attorney[ ] fees, are not recoverable by a litigant against the opposite party except in those cases which are specifically provided for by contract or by statute. [Cit.]” Hickman v. Frazier, 128 Ga. App. 552 (1) (197 SE2d 441) (1973). Here, Article VI, Section 1 of the Declaration provides, in relevant part: “Each such assessment, together with the interest thereon and costs of collection thereof, including reasonable attorney[ ] fees, shall... be the personal obligation of the ... Owner.” Article VI, Section 8, provides that in an action to collect delinquent assessments, “interest, cost and reasonable attorneyf ] fees of any such action shall be added to the amount of such assessment.” Northside contends that because the Declaration only provided for reasonable attorney fees without specifying the amount, the award should be calculated pursuant to OCGA § 13-1-11, and the trial court erred in awarding reasonable attorney fees pursuant to the Declaration.

OCGA § 13-1-11 provides in relevant part:

If such note or other evidence of indebtedness provides for the payment of reasonable attorney [ ] fees without specifying any specific percent, such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00[.]

OCGA § 13-1-11 (a) (2).

The trial court found that “based upon the language ... of the Declaration, . . . the award of reasonable attorney[ ] fees . . . [was] proper” and awarded Mountainbrook $65,834.02 for “reasonable attorney[ ] fees.” Mountainbrook asserts that OCGA § 13-1-11 does not apply to the Declaration because it “is not a ‘note or other evidence of indebtedness’ that creates a promise to repay a fixed debt upon its creation.” Mountainbrook also contends that its argument is bolstered by the statutory authority of the Property Owners’Association Act (“the Act”), OCGA § 44-3-220 et seq., which, it asserts, establishes that homeowners association assessments are not debts under OCGA § 13-1-11.

We agree that OCGA § 13-1-11 does not apply in this case because the Declaration is not an evidence of indebtedness as contemplated by the statute. “ ‘[E]vidence of indebtedness,’ as used in OCGA § 13-1-11, has reference to any printed or written instrument, signed or otherwise executed by the obligor(s), which evidences on its face a legally enforceable obligation to pay money.” (Citation and punctuation omitted.) Radioshack Corp. v. Cascade Crossing II, 282 Ga. 841, 846 (653 SE2d 680) (2007).

The Declaration provides: “Each Owner of a Lot, by acceptance of a deed... is deemed in covenant and agree [s] to pay to the Association: (1) annual assessments, which may or shall be levied by the Association, and (2) special assessments ... to be established and collected as hereinafter provided.” Thus, while the Declaration provides for attorney fees incurred in collecting assessments, it also provides that annual assessments may be levied annually or, in some instances, the assessments may not be assessed. Thereby, rather than an evidence of indebtedness reflected by a written instrument for the payment of money that imports on its face the existence of a debt, the Declaration only evinces an obligation that may arise to pay assessments should they be levied. See generally O’Brien’s Irish Pub v. Gerlew Holdings, 175 Ga. App. 162, 166 (4) (332 SE2d 920) (1985) (statute inapplicable to exclusive real estate listing agreement); Holcomb v. Evans, 176 Ga. App. 654, 657 (3) (337 SE2d 435) (1985) (personal services contract was not “note or other evidence of indebtedness” within meaning of statute); Vaughters v. Outlaw, 293 Ga. App. 620, 623 (2) (668 SE2d 13) (2008) (OCGA § 13-1-11 did not apply to contract for legal representation).

Because OCGA § 13-1-11 does not apply here to limit the attorney fees award, the trial court did not err in awarding “reasonable attorney fees pursuant to the Declaration.” See, e.g., Layfield v. Southeastern Constr. Coordinators, 229 Ga. App. 71, 72 (1) (492 SE2d 921) (1997) (award of fees not governed by statutory provision but by provision in the contract providing for assessment of “all legal fees incurred ... in the collecting of any monies due for the contract sum”). Moreover, we cannot assume, as Northside argues, that because the trial court awarded the amount requested that the award was for actual attorney fees instead of reasonable attorney fees.

Accordingly, we affirm the trial court’s award of attorney fees.

3. Northside also contends that the award of 10 percent of the past-due assessments as late fees constituted an unenforceable penalty under Georgia law. Article VI, Section 8 of the Declaration provides, in relevant part: “[I]f the assessment is not paid within five (5) days after the due date, the assessment shall bear a late charge in an amount set by the Board.” “Determining whether such a clause constitutes an enforceable liquidated damages provision or an unenforceable penalty is a question of law for the court.” (Citation and punctuation omitted.) Jamsky v. HPSC, Inc., 238 Ga. App. 447, 449 (519 SE2d 246) (1999). See OCGA § 13-6-7.

Generally, “for the late fee to be considered an enforceable liquidated damage provision, rather than a penalty, it must comply with three requirements.” Telescripps Cable Co. v. Welsh, 247 Ga. App. 282, 284 (1) (542 SE2d 640) (2000). “First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.” (Citations and punctuation omitted.) Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976). “[Ijmplicit in the concept of liquidated damages in addition to the above factors is that both parties are bound by their agreement.” Id. On summary judgment, the movant has the burden of showing that as to the three prongs, no genuine issue of material fact exists. Peterson v. P. C. Towers, L.P., 206 Ga. App. 591, 592-593 (3) (426 SE2d 243) (1992).

Mountainbrook has not met its burden as to the third prong by demonstrating that the late fee provision is a reasonable pre-estimate of the probable loss. Here, per the Declaration, “if the assessment is not paid within five (5) days after the due date, the assessment shall bear a late charge in an amount set by the Board.” As this language reflects, the late fee provision provides no pre-estimate, reasonable or otherwise, of the probable loss associated with the late payment of assessments. The late fee is set at the total discretion of the Board. There is no indication as to what criteria the Board must use to determine the late fees, when the late fees are to be set, or whether there is any ceiling on the amount of late fees that can be charged.

Accordingly, Mountainbrook failed to show that the late fees provision in the Declaration were liquidated damages rather than an impermissible penalty, and thus the trial court erred in granting summary judgment to Mountainbrook as to these damages. Compare Oami v. Delk Interchange, 193 Ga. App. 640, 642 (388 SE2d 706) (1989) (a $10 surcharge for each day of tenant’s failure to pay rent was “adjusted to the length of tardiness” and was a reasonable pre-estimate of the probable loss).

Case No. A16A0220

4. In several enumerations of error Mountainbrook contends that the trial court impermissibly abated post-judgment interest in its order granting Mountainbrook’s motion for supersedeas bond. We agree.

The record reflects that on July 10, 2015, the trial court granted Mountainbrook’s motion for summary judgment and entered judgment for Mountainbrook in the amount of $258,181.81, which included an award of 18 percent interest on unpaid assessments, attorney fees, and late fees. On July 23, 2015, Northside timely filed a notice of appeal from the judgment, and on July 29, Mountainbrook filed a motion for supersedeas bond, in which it requested a hearing on its motion, and, in anticipation of accruing costs associated with “a time-consuming appeal,” sought a bond of $344,655.53. In its response to the motion, Northside filed a response and requested that the trial court instead authorize payment of $263,402.03 into the court registry, reflecting the amount of the judgment and daily interest from the date the judgment was entered until the date the money was placed into the court registry, and that such payment into the court registry would “abate any post-judgment interest accrual” while it appealed the judgment.

Following a hearing, the trial court granted Mountainbrook’s motion for supersedeas bond and ordered that Northside deposit $279,262.03 into the court’s registry within 15 days, after which time, if no deposit was made, interest would accrue. The order stipulated that the “Deposit satisfies the requirements of OCGA § 5-6-46 (a) by providing a sufficient form of security to satisfy the judgment in full,” and also that the “Deposit satisfies the requirements of OCGA § 9-11-67” and “[u]pon receipt of the Deposit by the Clerk, post-judgment interest on the Judgment shall abate.” The order further held that the deposit was “subject to withdrawal ... in whole or in part, at any time upon request by [Mountainbrook].” Northside deposited the funds into the court registry on August 20, 2015, and it is from the supersedeas order that Mountainbrook appeals.

(a) Mountainbrook contends that the trial court’s abatement of the post-judgment interest in the order granting supersedeas bond was an impermissible modification of its previous order granting Northside summary judgment. It asserts that the filing of the notice of appeal deprived the trial court of jurisdiction to modify or alter the judgment. We agree.

“Regarding the order requiring a supersedeas bond, OCGA § 5-6-46 (a) authorizes a trial court to rule on such motions even though filed after the notice of appeal is filed and after the appeal is docketed in the appellate court.” Ruffin v. Banks, 249 Ga. App. 297, 299 (3) (548 SE2d 61) (2001), overruled on other grounds, Kent v. Kent, 289 Ga. 821 (716 SE2d 212) (2011). Under OCGA § 5-6-46 (a), the trial court has the discretion to require the posting of a supersedeas bond to cover the costs of appeal, the delay, and the judgment, if affirmed. However, “[a] notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending.” (Citations omitted.) McLeod v. Clements, 306 Ga. App. 355, 357 (2) (702 SE2d 638) (2010). See also OCGA § 5-6-46 (a).

OCGA § 9-11-67 permits a judgment debtor to abate the accrual of interest under certain conditions, including obtaining the permission of the court to deposit all or part of the relief sought into the court registry. However, once Mountainbrook filed its notice of appeal, the trial court was divested of jurisdiction to rule on whether post-judgment interest was abated pursuant to OCGA § 9-11-67, which would, in effect, modify or alter the judgment. See Kidd v. Unger, 207 Ga. App. 109, 111 (3) (427 SE2d 82) (1993) (after notice of appeal was filed, trial court lacked jurisdiction to enter an order purporting to limit scope of earlier ruling from which notice of appeal was filed).

Decided July 14, 2016.

Jones & Walden, Leon S. Jones, Cameron M. McCord, for appellant.

Bentley, Bentley & Bentley, Fred D. Bentley, Jr., B. Blake Hunger-ford, for appellee.

[Sjupersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered, such as are based upon and relate to the carrying into effect of that judgment. Under this rule the supersedeas, during its pen-dency, prevents any steps to enforce or carry into effect the judgment, such as issuing an execution based thereon.

(Citations and punctuation omitted.) Intl. Images v. Smith, 181 Ga. App. 543, 544 (352 SE2d 846) (1987). Thus, abatement of the post-judgment interest was prohibited by the supersedeas, and the trial court erred in so ordering. Compare JTH Tax v. Flowers, 311 Ga. App. 495, 497 (716 SE2d 559) (2011) (after remittitur, trial court properly ruled on post-judgment interest abatement, finding interest was not abated per OCGA § 9-11-67 because funds could not be withdrawn during appeal); Great Southern Midway v. Hughes, 223 Ga. App. 643, 644 (478 SE2d 400) (1996) (after remittitur issued, trial court properly found that post-judgment interest was not abated during appeal because plaintiff had been unable to satisfy judgment with funds defendant paid into court registry per OCGA § 9-11-67).

Accordingly, the trial court’s order granting the motion for super-sedeas bond is reversed to the extent that it abated post-judgment interest.

(b) In light of our finding that the trial court lacked jurisdiction during the appeal to abate the post-judgment interest on the judgment, we need not address Mountainbrook’s remaining enumerations of error.

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded with direction in Case No. A16A0005. Judgment affirmed in part and reversed in part in Case No. Al 6A0220.

Boggs and Rickman, JJ., concur.

       OCGA § 44-3-232 (b) (3) provides: “To the extent that the instrument provides, the personal obligation of the lot owner and the lien for assessments shall also include ... [t] he costs of collection, including court costs, the expenses required for the protection and preservation of the lot, and reasonable attorney[ ] fees actually incurred." (Emphasis supplied.)

       Mountainbrook acknowledges that a homeowners association must affirmatively opt into the Act for it to apply, and that because it did not do so, the Act’s attorney fees provision does not apply in this case. See OCGA § 44-3-220 et seq.

       We also find that OCGA § 13-1-11 does not apply here because the Declaration is not a written instrument signed or executed by the obligor Northside Bank. See Radioshack Corp., 282 Ga. at 846. In fact, the Declaration is neither signed nor executed by any obligor and contains only the signature of the president of Mountainbrook Development. For this additional reason, while notes, guarantees, and leases, as instruments signed by the obligor, are “evidence of indebtedness,” the Declaration here is not “evidence of indebtedness” as contemplated by statute.

       In its pleading, Mountainbrook alternatively requested reasonable attorney fees pursuant to the Declaration and also under OCGA § 13-6-11 for Northside’s “bad faith and stubbornly litigious behavior.” However, “because both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury’s determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor.” Covington Square Assocs. v. Ingles Markets, 287 Ga. 445, 446-448 (696 SE2d 649) (2010).

       “If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.” OCGA § 13-6-7.

       Mountainbrook argues that a 10 percent late fee per annum represents a statutorily reasonable estimate of the probable loss associated with the late assessments based on OCGA § 44-3-232 (b) (1), which provides for “[a] late or delinquency charge not in excess of the greater of $10.00 or 10 percent of the amount of each assessment . . . not paid when due.” However, as previously noted, Mountainbrook did not opt into the Act and thus that provision does not apply under the facts of this case.

       At the hearing on the motion, Mountainbrook argued that the bond should include costs associated with appeal including “one year’s worth of interest at $46,473.72,” and “an additional $30,000.00 for an appeal of this type.”

      In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court, upon posting of sufficient security. Where the thing deposited is money, interest thereupon shall abate.

      (Emphasis supplied.) OCGA § 9-11-67.


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A16A0058.
    CITY OF DUNWOODY v. DISCOVERY PRACTICE MANAGEMENT, INC. et al.
    (789 SE2d 386)
   Rickman, Judge.

This Court granted a discretionary appeal application by the City of Dunwoody (the “City”) from the judgment of the DeKalb County Superior Court reversing the decision of the City of Dun-woody Zoning Board of Appeals (the “ZBA”) in a dispute regarding whether the proposed use of property controlled by Discovery Practice Management, Inc., d/b/a Center For Discovery and DV Dun-woody, LLC (hereinafter collectively “Discovery”) fit within the existing zoning classification of the district where the property is located. The ZBA determined that the City’s earlier classification of Discovery’s proposed use of the property as a family personal care home was erroneous. But the superior court reversed the ZBA’s determination, and thus, reinstated the classification. The City appeals from this superior court order, contending that the superior court erred by: (1) denying its motion to dismiss a renewed petition for certiorari Discovery had filed pursuant to OCGA §§ 5-4-3 and 9-2-61 (a); and (2) reversing the ZBA’s decision. For the following reasons, we affirm the judgment.

1. The City contends that the renewal provisions of OCGA § 9-2-61 (a) did not entitle Discovery to dismiss a timely filed petition for writ of certiorari, then renew the petition after the expiration of the applicable limitation period.

Pursuant to OCGA § 9-2-61 (a), a case commenced within the applicable limitation period may be dismissed and recommenced within six months even if the limitation period has expired. The privilege of dismissal and renewal under OCGA § 9-2-61 does not apply to a case dismissed on the merits or to a case which was void when dismissed, but it does apply if the dismissed case was merely voidable. A suit is also void and incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial determination that dismissal is authorized. ... It is settled that the renewal provisions of OCGA § 9-2-61 apply to certiorari cases brought pursuant to OCGA § 5-4-1 et seq.

(Citations and punctuation omitted.) Buckler v. DeKalb County, 290 Ga. App. 190, 191 (1) (659 SE2d 398) (2008).

Discovery filed its first petition for writ of certiorari in the superior court on July 10, 2014, within the 30-day limitation period of OCGA § 5-4-6 (a). Pursuant to OCGA § 5-4-6 (b), the petition and writ were required to be personally served upon the ZBA, as respondent-in-certiorari. The parties did not dispute that service of the petition and writ was perfected on the City (the opposing party or “defendant-in-certiorari”). However, the City disputed service on the ZBA, and in September 2014, Discovery voluntarily dismissed the action. At the time of dismissal, no judicial determination had been entered on the petition.

In October 2014, Discovery refiled the petition for writ of certio-rari, citing OCGA §§ 5-4-3 and 9-2-61 (a). Subsequently, the City filed a motion to dismiss the refiled petition on the basis that it was void ab initio because the original petition and writ were never properly served on the ZBA pursuant to OCGA § 5-4-6 (b) before the action was dismissed and that, therefore, the dismissed action was void and not subject to renewal under OCGA § 9-2-61 (a). Discovery filed a response to the motion to dismiss, arguing that the City failed to meet its burden of showing improper service of the original petition and writ because, inter alia, personal service was not required for renewal, and that even assuming personal service was required, Discovery had shown good cause to excuse such service.

The trial court determined that the requisite personal service pursuant to OCGA § 5-4-6 was not perfected upon the ZBA, but that the lack of personal service as to the ZBA did not render the petition void and, thus, a bar to renewal. For the reasons explained below, we hold that lack of service on the ZBA, the respondent, did not make the original action void.

[T]he failure to deliver, within the time required by the statute, the petition and writ to the officer whose decision is under review ... is a mere irregularity which can be cured either by a waiver by the officer himself, evidenced by the filing of his answer, or by an extension of time by the judge of the superior court.

Bass v. City of Milledgeville, 121 Ga. 151, 153 (48 SE 919) (1904); see Hudson v. Watkins, 225 Ga. App. 455, 456 (1) (484 SE2d 24) (1997). Accordingly, failure to comply with service requirements regarding the officer whose decision is under review “will not render the proceeding void,” Bass, 121 Ga. at 153, but instead, voidable. Given that a case is capable of renewal under OCGA § 9-2-61 (a) if, when the case was dismissed it was merely voidable, OCGA § 9-2-61 (a) applies in the instant case, and the superior court properly denied the City’s motion to dismiss Discovery’s renewed petition.

The City argues that pursuant to Fisher v. City of Atlanta, 212 Ga. App. 635 (442 SE2d 762) (1994), Discovery’s failure to comply with service requirements of OCGA § 5-4-6 rendered the original petition void unless notice was given to the ZBA pursuant to OCGA § 5-4-3 (by the clerk of court), and that because no notice pursuant to OCGA § 5-4-3 was given in the instant case, the petition was void. We disagree. In Fisher, service of the original petition was not perfected upon the tribunal whose decision was under review, and this Court held that the petition, although properly dismissed for lack of service underOCGA § 5-4-6 (b),couldbe renewed pursuant to OCGA § 9-2-61. Fisher, 212 Ga. App. at 636-637 (on motion for reconsideration). Although this Court acknowledged that the tribunal had received notice of the petition pursuant to a procedure authorized by statute (OCGA § 5-4-3), this Court did not hold that such notification was a prerequisite to renewal. Id. Nothing in Fisher contradicts the Bass rule. Therefore, the trial court properly denied the City’s motion to dismiss Discovery’s renewed petition.

2. The City contends that the superior court erred by, among other things, reversing the ZBA’s decision by ruling that neighbors were not entitled to notice of the city planner’s classification decision and by ruling that the ZBA wrongly construed the city zoning ordinance to require notice.

The record shows the following. Discovery sought to open a six-bed home for the treatment of adolescents with eating disorders. In January 2014, the City of Dunwoody planner/director of sustainability (“city planner”) issued a letter (“confirmation”) to Discovery, classifying Discovery’s stated proposed use for the subject property as a family personal care home, and informing Discovery that such was a permitted “use by right” in the single-family residential zoning district in which the property was located. In April 2014, some nearby residents who had found out (in March 2014) about the use to which the property (an existing home) was going to be put, filed an application for administrative appeal with the ZBA. The ZBA voted to accept the appeal and held hearings on the matter. The neighbors challenged the classification of the land use as a personal care home, arguing that the city planner was not informed of material facts when she made the classification decision and that Discovery’s intended use for the property was as a medical treatment facility, which was not a permitted use.

The ZBA sustained the appeal, determining that the “staff decision to classify this as a personal care home was in error . . . [o]r incorrect.” Discovery thereafter appealed the ZBA’s decision to the superior court, which ruled that, among other things, the neighbors’ appeal to the ZBA was untimely and the ZBA erred as a matter of law by accepting the appeal and reading into the ordinance a notice requirement that otherwise did not exist.

“We review the construction of a zoning ordinance under a de novo standard.” (Citations omitted.) Burton v. Glynn County, 297 Ga. 544, 546 (1) (776 SE2d 179) (2015). The scope of review of the superior court is “limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence.” OCGA § 5-4-12 (b). “[T]he substantial-evidence standard is effectively the same as the any-evidence standard.” (Citation and punctuation omitted.) City of Atlanta Govt. v. Smith, 228 Ga. App. 864, 865 (1) (493 SE2d 51) (1997).

Pursuant to Section 27-458 of the Dunwoody Zoning Ordinance in effect at the time of the appeal to the ZBA, the neighbors — assuming they had standing — had 30 days from the date of the city planner’s decision to appeal the decision, and the ordinance did not require that notice of the decision be given to neighboring property owners by mail, by signage, or by publication in a newspaper. And in the instant case, the neighbors filed their appeal 98 days after the date of the decision. At the ZBA hearings, the neighbors argued that they were unaware of the confirmation within 30 days of its issuance, and that unless the ordinance was construed as impliedly requiring that notice be given to them, the appeal provisions of the zoning ordinance violated due process. The ZBA accepted the appeal, thus, impliedly reading a notice provision into the ordinance.

The construction of a zoning ordinance is a question of law for the courts. Zoning ordinances are to be strictly construed in favor of the property owner. Since statutes or ordinances which restrict an owner’s right to freely use his property for any lawful purpose are in derogation of the common law, they must be strictly construed and never extended beyond their plain and explicit terms.

(Citation omitted.) Haralson County v. Taylor Junkyard of Bremen, 291 Ga. 321, 323-324 (2) (729 SE2d 357) (2012); Cherokee County v. Martin, 253 Ga. App. 395, 396 (1) (559 SE2d 138) (2002). In construing a zoning ordinance, “the cardinal rule is to ascertain and give effect to the intention of the lawmaking body” (Punctuation and footnote omitted.) Northside Corp. v. City of Atlanta, 275 Ga. App. 30, 31 (1) (619 SE2d 691) (2005).

Here, “the language of the ordinance is plain and unambiguous, and does not lead to contradictory, absurd, or wholly impracticable results, [and] it is the sole evidence of legislative intent and must be construed according to its terms.” (Punctuation and footnote omitted.) Northside Corp., 275 Ga. App. at 32 (2). The ordinance explicitly provided that use of property as a family personal care home was permitted as of right in the residential zoning district where the property was located. And it is undisputed that the plain language of the ordinance did not require that neighboring property owners be given notice of a city official’s decision that a homeowner’s stated proposed use for his/her property was permitted under the existing zoning classification as a matter of right.

We reject the City’s argument that “to maintain the constitutionality of the appeals provision of the Zoning Ordinance . . . the courts must imply a notice requirement, otherwise the Ordinance simply ignores foundational due process constraints” by not affording notice to those who may appeal the zoning decision. Procedural due process includes the right to notice and an opportunity to be heard. See Glass Systems v. Ga. Power Co., 288 Ga. 85, 87 (1) (703 SE2d 605) (2010). “The principles of due process extend to every proceeding judicial or administrative or executive in its nature at which a party may be deprived of life, liberty, or property” (Citation and punctuation omitted.) Cobb County School Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126) (1999). Due process rights were not triggered in the instant case.

The ordinance explicitly required that public notice (i.e., by placing a yard sign in a conspicuous location on the property, or by publication in a newspaper) and/or notice by mail be given prior to any zoning or land use amendment, or prior to the issuance of special land use permits, variances, special exceptions, or administrative permits. See, e.g., Atlantic Refining Co. v. Spears, 214 Ga. 126, 127 (103 SE2d 547) (1958) (“Where proper notice is given and an actual hearing is had, the rezoning of property does not violate the due-process clause of the Constitution.”). Here, the city planner’s confirmation did not change the existing zoning of the district where the property at issue was located; it did not authorize a nonpermitted use of land or any variance or exception from permitted uses; nor did it deprive the complainants of life, liberty, or property The City cites no authority, and we found none, holding that due process required that neighboring property owners be given notice aside from that provided in the ordinance of a homeowner’s permitted use of his/her property as of right. As the city planner testified at one of the ZBA hearings in this matter, “a use by right [was] not something that requires notification,” and “if at any time, the proposed use exceeds their threshold of a personal care home, then those activities on the lot are not deemed allowable by the letter or by the zoning ordinance.” Indeed, in the event of use outside the existing zoning classification, the neighbors and City would not be without a remedy See generally Burton, 297 Ga. at 546-548 (1) (trial court properly granted county’s counterclaim for declaratory judgment where homeowners were violating a zoning ordinance by using their property for large-scale gatherings, which use fell outside the scope of the single-family residential use for which the district was zoned); Hall v. Trubey, 269 Ga. 197-200 (1) (498 SE2d 258) (1998) (despite issuance of building permits, where property owner had not received zoning variance to construct residential units on property zoned strictly for commercial use, adjacent property owner’s action for injunction was not barred by laches even though formal lawsuit was not filed until several months after construction project began); Maloof v. Gwinnett County, 231 Ga. 164-166 (200 SE2d 749) (1973) (trial court properly granted interlocutory injunction sought by county and nearby property owners who sought to abate homeowners’ use of their property as a commercial dog kennel in a zoning district of the county in which such use was not permitted).

Decided July 14, 2016.

Riley McLendon, Cecil G. McLendon, Jr., Leonid M. Felgin, for appellant.

Robbins Ross Alloy Belinfante Littlefield, Joshua B. Belinfante, Vincent R. Russo, Jr., for appellees.

By accepting the appeal, the ZBA impermissibly read a notice requirement into the ordinance, where there was not one and where the language of the ordinance evidenced no intent that any special notice be given for the use permitted as a matter of right in this case. The ZBA erroneously construed the ordinance despite its plain language and the superior court, in accordance with its obligation to construe Section 27-458 of the Dunwoody Zoning Ordinance as a matter of law, see Northside Corp., 275 Ga. App. at 31 (1), correctly ruled so.

“Municipal ordinances are entitled to a presumption of validity, and will be sustained unless clearly invalid.” (Citation and punctuation omitted.) Buckler v. DeKalb County Bd. of Commrs., 299 Ga. App. 465, 467 (2) (683 SE2d 22) (2009). In the instant case, the appeals provisions of the zoning ordinance were not clearly invalid, and the superior court’s reversal of the ZBA’s contrary interpretation is correct and must be affirmed.

3. Given our conclusion that the ZBA erred by accepting the appeal, we need not reach the remaining enumerated errors.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       See Gornto v. City of Brunswick, 119 Ga. App. 673 (168 SE2d 323) (1969) (construing statute requiring service on respondent-in-certiorari to mean personal service).

       OCGA § 5-4-3 provides:
      When either party in any case in any inferior judicatory or before any person exercising judicial powers is dissatisfied with the decision or judgment in the case, the party may apply for and obtain a writ of certiorari by petition to the superior court for the county in which the case was tried, in which petition he shall plainly and distinctly set forth the errors complained of. On the filing of the petition in the office of the clerk of the superior court, with the sanction of the appropriate judge endorsed thereon, together with the bond or affidavit, as provided in Code Section 5-4-5, it shall be the duty of the clerk to issue a writ of certiorari, directed to the tribunal or person whose decision or judgment is the subject matter of complaint, requiring the tribunal or person to certify and send up all the proceedings in the case to the superior court, as directed in the writ of certiorari.

       Discovery did not file a cross-appeal as to this determination.

       To the extent that the trial court misconstrued the holding in Fisher, we will affirm its ruling if it is right for any reason. Reed v. Reed, 295 Ga. 574, 578 (2) (761 SE2d 326) (2014) (“We may affirm the judgment of a lower court so long as it is right for any reason.”) (citation and punctuation omitted).

       At the time, the City of Dunwoody did not have a community development director, and the city planner issued the letter pursuant to authority previously delegated to her to act as community development director.

       Section 27-457 of the Dunwoody Zoning Ordinance authorized “any person aggrieved by . . . any final order, requirement, or decision of an administrative official, based on or made in the enforcement of the zoning ordinance” to appeal the administrative decision.

       The ordinance was amended in January 2015, which date was after the ZBA’s decision. The amended ordinance contained a provision that authorized the ZBA to waive the 30-day deadline and allow an appeal to be filed within 30 days of actual or constructive notice of the decision. Additionally, the amended ordinance required that notice of the decision be given to adjacent property owners.


author: McFADDEN, Judge.

text:
    A16A0060.
    AVION SYSTEMS, INC. v. BELLOMO.
    (789 SE2d 374)
   McFADDEN, Judge.

This appeal challenges the grant of a motion for summary judgment as to a breach of fiduciary duty claim and the denial of a motion for judgment notwithstanding the verdict as to breach of contract and other claims. However, the appellant has failed to show that there exists a genuine issue of material fact as to the breach of fiduciary duty claim; thus summary judgment on that claim was appropriate. Moreover, there was evidence supporting the jury’s verdict, so the trial court did not err in denying the motion for judgment notwithstanding the verdict. Accordingly, we affirm.

Avion Systems, Inc., sued Giacomo Bellomo, a former employee, for breach of contract and unjust enrichment. Bellomo counterclaimed for breach of contract, seeking unpaid commissions, unpaid expense reimbursements, prejudgment interest and attorney fees. Avion voluntarily dismissed its complaint without prejudice. Bellomo objected to the dismissal and continued to pursue his counterclaims. Avion subsequently filed a new complaint against Bellomo, asserting claims for breach of fiduciary duty and unjust enrichment. Bellomo filed an additional counterclaim for an unpaid bonus. The trial court granted summary judgment to Bellomo on Avion’s breach of fiduciary duty claim.

A jury trial was then held on Avion’s remaining claim for unjust enrichment and Bellomo’s counterclaims. The jury returned a verdict against Avion and in favor of Bellomo as to both Avion’s unjust enrichment claim and Bellomo’s counterclaims, awarding Bellomo $147,806 in damages and $156,861 in attorney fees. The trial court entered judgment in favor of Bellomo in those amounts. Avion filed a motion for judgment notwithstanding the verdict, which the trial court denied. Avion appeals.

1. Grant of summary judgment.

Avion claims that the trial court erred in granting summary judgment to Bellomo on its claim for breach of fiduciary duty, which alleged that “Bellomo solicited the business of ECI, a customer of [Avion], for his rival business, Edge Wireless, before the end of his employment with [Avion].” We find no error in the grant of summary judgment on this claim.

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. Norton v. Cobb, 284 Ga. App. 303 (643 SE2d 803) (2007). This Court reviews de novo a grant or denial of summary judgment, viewing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Id. at 303-304.

So viewed, the evidence shows that in August 2009, Bellomo was hired by Avion as a director of wireless sales. In January 2010, ECI entered into a contract for Avion to supply customer care services for ECI’s wireless network. In June 2011, while still employed by Avion, Bellomo and a partner formed Edge Wireless, Inc. In early September 2011, following a compensation dispute between the parties, Bello-mo’s employment with Avion terminated. By October 2011, ECI had entered into a contract with Edge for wireless support services and was no longer a customer of Avion.

“It is well settled that a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” Nash v. Studdard, 294 Ga. App. 845, 849-850 (2) (670 SE2d 508) (2008) (citation and punctuation omitted).

[Fiduciary duties are owed by those in confidential relationships as defined by OCGA § 23-2-58[, which] provides: Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling [influence] over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

Physician Specialists in Anesthesia, P.C. v. Wildmon, 238 Ga. App. 730, 732 (1) (521 SE2d 358) (1999) (citation omitted). An employee obviously is not a partner, and

an employer-employee relationship does not typically create a principal-agent relationship. The distinguishing characteristic of an agent is that he is vested with authority, real or ostensible, to create obligations on behalf of his principal, bringing third parties into contractual relations with him.

Id. at 732 (1) (a) (citations omitted).

Here, the trial court granted summary judgment on the basis that Bellomo was merely an employee of Avion, not an officer or agent who could contractually bind the company. It is undisputed that Bellomo was not an Avion officer. Moreover, Avion has failed to refute the trial court’s finding that Bellomo was not an agent by pointing to specific evidence in the record showing that Bellomo could create obligations on Avion’s behalf or bring third parties into contractual relations with it. Avion has identified no language in the employment contract giving Bellomo such authority; rather, Avion cites deposition and affidavit statements indicating that Bellomo was a salesman whose duties included cultivating relationships with the decision-makers of prospective customers. Avion also refers to language in the employment contract providing that Bellomo had a fiduciary duty not to divulge trade secrets, but that language did not give Bellomo the authority to bind Avion contractually or otherwise create a principal-agent relationship.

In order for [Bellomo] to serve as [Avion’s] agent, he had to be more than the employee delegated by [Avion] to [solicit and cultivate relationships with potential customers] — he had to be vested with authority, real or ostensible, to create obligations on behalf of [Avion], bringing third parties into contractual relations with [Avion].

Gordon Document Products v. Svc. Technologies, 308 Ga. App. 445, 453-454 (708 SE2d 48) (2011) (citations and punctuation omitted). Avion has not identified any evidence creating a disputed issue of fact that Bellomo had such authority.

Where it has been “demonstrate[d] that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case, the burden shifts to the nonmoving party to point out specific evidence giving rise to a triable issue.” Smith v. Morris, Manning & Martin, 293 Ga. App. 153, 160-161 (666 SE2d 683) (2008) (citation and punctuation omitted). Here, because Avion has failed to point out specific evidence giving rise to a triable issue as to Bellomo’s status as an agent owing a fiduciary duty to his principal, it has failed to show error in the trial court’s summary judgment ruling. See UWork.com, Inc. v. Paragon Technologies, 321 Ga. App. 584, 596-597 (4) (740 SE2d 887) (2013) (defendant entitled to summary judgment where plaintiff pointed to no evidence showing a principal-agent relationship between the parties). Accordingly, we affirm.

2. Denial of judgment notwithstanding the verdict.

Avion contends that the trial court erred in denying its motion for judgment notwithstanding the verdict as to Bellomo’s counterclaims for breach of contract, attorney fees, and prejudgment interest. The contention is without merit.

With regard to the attorney fees and interest claims, Avion did not move for a directed verdict on those claims and therefore it could not raise those issues for the first time in a motion for judgment notwithstanding the verdict. Compare Republic Svcs. of Ga. v. Hoak, 273 Ga. App. 330, 331 (615 SE2d 175) (2005) (motions for directed verdict and judgment notwithstanding the verdict based on same grounds).

[G]rounds raised in a motion for judgment notwithstanding the verdict that were not raised in the motion for directed verdict will not be considered on appeal. OCGA § 9-11-50 (b) allows the device of a motion for judgment notwithstanding the verdict [“j.n.o.v.”] to be used when a motion for directed verdict does not end a trial and it proceeds to verdict. It is narrow, however, and does not permit reopening the case for new legal issues which are thought of retrospectively, with hindsight. It provides, however, a post-verdict opportunity for a determination of the legal questions raised by the motion for a directed verdict. If upon reflection the trial judge determines that the motion for directed verdict was valid, the judge is to set aside the verdict and the original judgment and enter a new judgment in accordance with the motion for directed verdict. It is patent, then, that the j.n.o.v. must be based on grounds raised in the motion for directed verdict initially, for it is in effect only a new ruling on a renewed motion.

Decided July 14, 2016.

Lackland & Associates, Theodore H. Lackland, for appellant.

The Myer Law Firm, Mari L. Myer, for appellee.

Southern Land Title v. North Ga. Title, 270 Ga. App. 4, 7-8 (2) (606 SE2d 43) (2004) (citations and punctuation omitted). Accordingly, Avion’s arguments concerning the denial of judgment notwithstanding the verdict as to the attorney fees and interest claims present nothing for us to review.

As to the breach of contract for unpaid commissions and bonus, Avion must show “that there was no conflict in the evidence as to any material issue and that the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.” AgSouth Farm Credit v. Gowen Timber Co., 336 Ga. App. 581, 587 (2) (784 SE2d 913) (2016) (citation and punctuation omitted). Thus, on appeal from a ruling “[o]n a motion for judgment notwithstanding the verdict, the standard of review is whether there is any evidence to support the jury’s verdict.” Sims v. Sims, 265 Ga. 55, 56 (452 SE2d 761) (1995) (citation omitted). Here, Avion has failed to show that the evidence demanded a different, verdict. As the trial court found, “there [was] an abundance of evidence to support all aspects of the jury’s verdict.” Accordingly, the trial court did not err in denying the motion for judgment notwithstanding the verdict.

Judgment affirmed.

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


author: McMlLLIAN, Judge.

text:
    A16A0224, A16A0225.
    GRANT et al. v. GEORGIA FORESTRY COMMISSION et al. (two cases).
    (789 SE2d 343)
   McMlLLIAN, Judge.

In these related cases, Carol Grant (“Grant”) brought wrongful death actions against the Georgia Forestry Commission (“GFC”) and the Georgia Department of Transportation (“GDOT”) arising out of an automobile collision that resulted in the death of Grant’s husband, Myles N. Grant, and her son, Joell D. Grant. Grant appeals the trial court’s dismissal of GFC and GDOT on the grounds that the doctrine of sovereign immunity bars her claims.

The facts are largely undisputed. At approximately 5:30 a.m. or 5:50 a.m., on March 17, 2011, Grant’s husband and son were killed in an automobile accident on Interstate 16 (“I-16”) when they collided with a tractor-trailer (the “Accident”). At the time, there was little to no visibility on the interstate due to a combination of smoke and fog.

On the day before the Accident, GFC had issued an online burn permit to Grantley Stewart to burn vegetation on his property in Bulloch County, Georgia. At approximately 3:30 p.m. that day, Douglas Chassereau, chief ranger for the Bulloch County GFC fire protection unit, received notice of a fire on Stewart’s property, and when he arrived at the property approximately 45 minutes later, he observed a fire burning out of control in an area of forested land and threatening to burn a number of structures. Because forest fires fall within GFC’s jurisdiction, Chassereau “took charge” of the fire scene, and he “continuously monitored the fire and assigned manpower and equipment to contain the fire.” As a part of his duties, Chassereau drove State Route (“SR”) 67, which was located several hundred feet north of the fire, where he observed that Bulloch County Sheriff deputies were handling traffic issues and that smoke/fog warning signs for both travel lanes on SR 67 had been posted.

At around 7:00 that evening, Chassereau determined that the fire appeared to be contained; however, the burned area, which consisted of around 45 acres, continued to smoke. Chassereau observed that the smoke was drifting in a southeasterly direction, away from 1-16, which was further to the north of the burned area, and he observed no visibility issues on either SR 67 or 1-16. The closest edge of the burned area was approximately 3/4 of a mile from the interstate. However, before Chassereau left the vicinity at around 8:00 p.m., he called Bulloch County 911 to provide notice that smoke was in the area and directed the dispatcher to request that the Georgia State Patrol (“GSP”) and the Bulloch County Sheriff’s Office continue to monitor the area for possible problems.

GDOT also received notice of the fire on March 16 when the Bulloch County Sheriff’s Office called to request that smoke warning signs be posted on SR 67. Joseph Mixon, GDOT’s maintenance foreman for Bulloch County, responded to the scene between 4:30 and 5:00 p.m. At the time, GDOT Policy 6670-3 (the “GDOT Policy”) required Mixon in his capacity as maintenance foreman to respond to requests from local law enforcement to place fog/smoke warning signs on state roads. Although Mixon observed no existing visibility issues, he complied with the request of the sheriff’s office to place warning signs in both directions on the roadway at around 5:00 p.m. When Mixon returned to the scene at around 7:45 p.m. to check the visibility, he found the conditions clear. After calling the sheriff’s office regarding the signs, Mixon left the signs in place overnight at their request.

The next day, March 17, Chassereau left his house at 5:30 a.m. to return to the burned area and on the way, at around 6:09 a.m., he received a report of the Accident. When he arrived at the scene a few minutes later, he observed that the area was enveloped in dense fog and smoke, resulting “in near zero visibility,” although he had no trouble breathing in the fog, indicating that it did not contain enough smoke to compromise his breathing or to cause him to experience other smoke-related symptoms.

Also, around 5:30 a.m. on March 17, Mixon received a call from GDOT’s Transportation Management Center (“TMC”) indicating that law enforcement had asked that warning signs be placed on 1-16. That was the first notice he received of visibility issues on 1-16. A few minutes later, TMC called him to report that I-16 had been closed due to the Accident and that law enforcement was asking for assistance in setting up a detour for the eastbound lane of the interstate. Mixon notified his immediate supervisor of these events. They then coordinated notifying additional GDOT personnel to pick up the necessary signage and to bring it to the appropriate interchange on 1-16. When Mixon arrived at the interstate that morning, he observed that “fog and smoke had accumulated to such a degree over 1-16 that [he] could not see through [his] windshield beyond the front hood of [his] truck.”

After the extended discovery period had ended, GFC and GDOT filed motions to dismiss Grant’s claims pursuant to OCGA § 9-11-12 (b) (1), asserting that they were entitled to the protection of sovereign immunity, which the trial court granted after a hearing, and these appeals followed.

1. On appeal, Grant asserts that the trial court erred in granting the motions to dismiss because sovereign immunity had been waived under the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq., as to her claims against GFC and GDOT. The Georgia Constitution provides that sovereign immunity extends to the State and all of its departments and agencies and that such immunity can only be waived by a constitutional provision or an Act of the General Assembly, “which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par IX (e). The GTCA provides for a limited waiver of sovereign immunity for “the torts of state officers and employees while acting within the scope of their official duties or employment,” subject to a number of exceptions and limitations, OCGA § 50-21-23 (a), which are set out in OCGA § 50-21-24. At issue in this appeal are the exceptions set forth in OCGA § 50-21-24 (2) and (6).

In reviewing an assertion of sovereign immunity, we must keep in mind that sovereign immunity is not an affirmative defense but instead raises an issue as to the trial court’s jurisdiction to try the case. Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671 (1) (570 SE2d 1) (2002). The burden of establishing a waiver of such immunity falls to “the party seeking to benefit from that waiver.” (Citation and punctuation omitted.) Id. Therefore, in response to GFC’s and GDOT’s motions to dismiss, Grant bore the burden of establishing a waiver of sovereign immunity as to her claims against each of the two state agencies. Id.

Moreover, where a motion to dismiss asserting the protection of sovereign immunity is filed pursuant to OCGA § 9-11-12 (b) (1), as it was here, the trial court is entitled to hear evidence and make relevant factual findings in deciding the issue of immunity Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016); Dupree, 256 Ga. App. at 675 (1) (b); OCGA § 9-11-12 (d). This Court sustains the trial court’s factual findings if there is any evidence to support them. Ga. Dept. of Transp. v. Wyche, 332 Ga. App. 596, 597 (774 SE2d 169) (2015). But where the underlying facts are undisputed, we review de novo the trial court’s application of the law to the undisputed facts. See generally id.; McCombs v. Southern Regional Med. Ctr., 233 Ga. App. 676, 681 (2) (504 SE2d 747) (1998).

2. We turn first to Grant’s claims against GFC. In her complaints, Grant asserted that GFC was negligent in (1) failing to notify other governmental agencies of the potentially hazardous conditions caused by the fire; and (2) failing to coordinate with GDOT to put signs in place to warn the public of these potentially hazardous conditions. In support of its motions to dismiss, GFC argued that it was entitled to sovereign immunity because its actions fell within the exception to the waiver of sovereign immunity set out in OCGA § 50-21-24 (6), and the trial court agreed, finding that GFC was entitled to immunity.

OCGA § 50-21-24 (6) absolves the State from liability for losses resulting from “[c]ivil disturbance, riot, insurrection, or rebellion or the failure to provide, or the method of providing, law enforcement, police, or fire protection.” Our Supreme Court has interpreted this provision

as authorizing the application of sovereign immunity to the making of policy decisions by state employees and officers including those relating to the amount, disbursement, and use of equipment and personnel to provide law enforcement, police or fire protection services, and to the acts and omissions of state employees and officers executing and implementing those policies.

Ga. Forestry Comm. v. Canady, 280 Ga. 825, 830 (632 SE2d 105) (2006). The Supreme Court later clarified this holding by explaining that “[t]he state is immune from liability if the alleged negligence causing an injury, which injury occurs during implementation of policy, lies in some defect in the policy itself.” Ga. Dept. of Public Safety v. Davis, 285 Ga. 203, 206 (676 SE2d 1) (2009). However, “[t]he state is not immune from liability where its employee is implementing a non-defective policy, but does so in a negligent manner.” Id. Moreover, “[ajlthough the state may be immune from liability for negligence in creating a certain policy which causes injury during its implementation, such immunity is unavailable for an employee’s allegedly negligent act or omission which is not authorized by any policy.” Id.

The parties do not dispute that the policy applicable to GFC’s actions was contained in a Memorandum of Agreement dated August 15, 2005 (the “Agreement”), in which three state agencies — GFC, GDOT, and GSP — agreed to a chart setting out “Action Procedures for Reduced-Visibility Driving Situations on State Roads.” Grant does not allege that these policies were defective, but instead claims that GFC was negligent in implementing them.

In addressing the issue of whether GFC and Chassereau were negligent in implementing the applicable policies in the Agreement, we must consider the division of responsibility to which the three participating agencies agreed. Under the Agreement, GFC has responsibility for reporting to GSP the existence of limited visibility conditions resulting from smoke and the existence of large controlled burns or wildfires in the vicinity of state roadways. GSP then has the responsibility to assess the reported situation to determine what further action needs to be taken. GSP’s responsibility for monitoring the situation continues “until the smoke has dissipated.” Additionally, GSP has the responsibility, as resources permit, to monitor major highways near reported large controlled burns or wildfires to detect potential problems. GDOT’s responsibility to dispatch crews with signs to the scene is triggered “upon notification.” The dispatched GDOT crew is responsible for the proper placement of warning signs, with GFC having responsibility for coordinating with GDOT in the placement of such signs. GDOT also has responsibility for furnishing additional traffic control “as requested.”

Turning first to the claim that GFC negligently failed to notify GSP of potentially hazardous conditions, after reviewing the plain language of the Agreement, we agree with the trial court that GFC has the duty to report only existing limited visibility conditions. Nothing in the Agreement imposes a duty upon GFC to report conditions with the potential to cause future visibility problems. Rather, the Agreement charges GSP with responsibility for monitoring the area surrounding large controlled burns or wildfires, as resources allow, to detect potential problems. Here, the evidence is undisputed that GFC did not become aware of any limited visibility conditions on 1-16 until the Accident had already taken place, and thus GFC cannot be said to have negligently implemented its policies. As a result, GFC is protected by sovereign immunity as to such claims.

Likewise, Grant’s claim that GFC negligently violated its duty to coordinate with GDOT in the placement of signs is barred by the doctrine of sovereign immunity. Under the Agreement, this duty to coordinate with GDOT arises only in the case of existing limited visibility conditions, as the description of that duty immediately follows the description of GFC’s duty to report such conditions (with no line spacing). In contrast, GFC’s duty to report large controlled burns and wildfires appears separately and below the instructions for limited visibility conditions. Because the evidence amply supports the trial court’s finding that GFC did not become aware of the limited visibility conditions until the early morning hours around the time that the Accident occurred, any claims based on the purported breach of GFC’s duty to coordinate with GDOT is entitled to the protection of sovereign immunity.

However, as previously noted, the Agreement imposes a separate and independent duty on GFC, regardless of visibility conditions, to advise GSP of the existence of any large controlled burns or wildfires in the vicinity of state roadways. Thus, we disagree with the trial court’s conclusion that limited visibility conditions were required to trigger any duty on the part of GFC under the Agreement. Although GFC initially permitted the fire as a presumably smaller controlled burn, it grew into an uncontrolled fire that eventually resulted in 45 smoldering acres. The record is silent as to whether GFC advised GSP of the fire while it was still burning. Nevertheless, consistent with the Agreement, after the fire was contained, Chassereau called the Bulloch County 911 operator to request that GSP and the Bulloch County Sheriff’s Office be notified of the existence of smoke in the area, even though no evidence exists that the smoke had resulted in limited visibility on any roadway at that time.

The Agreement does not specify the method for advising GSP of large controlled burns or wildfires, but it clearly requires that GSP be so advised by GFC. Although the trial court found that Chassereau complied with this notification requirement by calling the county 911 operator, we disagree with the trial court’s application of the law to the undisputed facts. Evidence that GFC delegated its duty to advise GSP to the county 911 operator, without more, is insufficient to show that GFC carried out its duty, particularly in the absence of evidence in the record that GSP received any notice of the fire, which would then trigger GSP’s duty under the Agreement to monitor the situation as resources permitted. See Davis, 285 Ga. at 206 (sovereign immunity not available for an employee’s negligent omission which is not authorized by any policy). Accordingly, the trial court erred in finding on the existing record that GFC was not negligent in carrying out its duty to advise GSP of the fire and that it was entitled to sovereign immunity on Grant’s claim on this ground.

3. Turning to Grant’s claims against GDOT, Grant alleged in her complaints that GDOT was negligent in (1) failing to monitor 1-16 for potentially hazardous conditions caused by the fire; (2) failing to assess the hazard posed by the fire in order to develop appropriate traffic control strategies; and (3) failing to warn motorists of the hazards and dangers posed by the smoke and coordinate with GFC to put signs in place to warn the public of these potentially hazardous conditions. In its motions to dismiss, GDOT asserted that it was entitled to sovereign immunity because its actions fell within the exceptions to the waiver of sovereign immunity set out in OCGA § 50-21-24 (2) and (6), and the trial court found that GDOT was entitled to immunity under subsection (2). Even though the trial court failed to address the application of subsection (6) to GDOT, we address this issue under our de novo review of the trial court’s ruling.

As an initial matter, we must consider Grant’s contention that subsection (6) does not apply to GDOT because it is not “ ‘a law enforcement or fire protection agency.’ ” But the protections afforded by that provision are not limited to law enforcement or fire protection agencies. Rather, that subsection grants sovereign immunity to the State as to claims for losses resulting from “the failure to provide, or the method of providing, law enforcement, police, or fire protection.” OCGA § 50-21-24 (6). Canady also involved claims arising from an automobile collision that occurred when smoke originating from a controlled burn obscured visibility on a highway. In that case, the Supreme Court defined the scope of subsection (6) to encompass both claims regarding the making of policies to provide fire protection services and to claims of negligence arising from “the acts and omissions of state employees and officers executing and implementing those policies.” 280 Ga. at 830. In so ruling, the Supreme Court did not focus on the nature of the agency involved but rather on protecting the State’s policy decisions regarding the method of providing police, law enforcement, or fire protection services, including policies addressing the method of handling limited visibility arising from smoke on a roadway Id. Compare Davis, 285 Ga. at 207 (holding that subsection (6) did not apply where state patrol officer was not acting pursuant to any policy in causing collision).

Therefore, to the extent that the Agreement addresses limited sight visibility resulting from smoke caused by fires, it represents a policy decision among three state agencies regarding a method of providing fire protection. Similarly, the GDOT Policy, which incorporates and expands on the Agreement, represents a policy decision by that department regarding its role in providing fire protection in such situations. Because GDOT has assumed duties in providing fire protection under the Agreement and its own policy, we find that GDOT may avail itself of the protections provided under subsection (6) for its acts and/or omissions in connection with the fire in this case.

In order to determine whether sovereign immunity bars Grant’s claims, we must examine GDOT’s duties in the event of low visibility due to smoke from a fire. Under the Agreement, GDOT’s responsibility to place signage arises only after it receives notification. Although the Agreement does not specify the source of the notification triggering this duty, the GDOT Policy contemplates that notice may come from two sources — the GSP and other sources — which in turn requires different responses by GDOT. If GDOT receives notice from a source other than GSP about limited visibility conditions due to smoke, smog, or fog, GDOT is directed to “immediately contact the GSP to verify the reports and request their assistance in apprising the severity of the problem and the impact on highway safety.” Alternatively, if GDOT is notified by GSP of limited visibility conditions threatening the safety of the traveling public (presumably in the first instance or after GDOT had already notified GSP upon receiving information from another source), the GDOT Policy provides for a more in-depth response, including considering whether to place signage or warning lights at the scene.

It is clear from our review of the Agreement and the GDOT Policy that Grant’s claims for failing to monitor 1-16 for hazardous conditions is barred under the doctrine of sovereign immunity because neither policy imposes any duty on GDOT to monitor roadways for hazardous conditions. Because Grant’s negligence claim “lies in some defect in the policy itself,” i.e., that the policies should have imposed a duty on GDOT to monitor roadways for hazards, GDOT is immune from liability for any such claims. See Davis, 285 Ga. at 206.

Grant’s claims that GDOT failed to assess the hazard posed by the fire and failed to place signs to warn the motoring public are barred for a similar reason. The only evidence of record indicates that on the morning of the accident, Mixon received a message from GDOT TMC that “law enforcement” had requested signage on 1-16. Grant has not pointed us to any evidence identifying the law enforcement agency or agencies involved. Minutes later, Mixon received another notice about the Accident. Because no evidence in the record shows that Mixon or anyone at GDOT received any notice from GSP or anyone else about low visibility conditions on I-16 until shortly before the Accident, we cannot say that GDOT negligently implemented its policy or acted in a way that was not authorized by policy. See Davis, 285 Ga. at 206.

In so holding, we recognize that, as Grant argues, GDOT may not have complied with its own policy on the day before the Accident when the Bulloch County Sheriff’s Office requested GDOT to place signs on SR 67 as there is no evidence in the record as to whether GDOT ever contacted GSP to assess the situation. However, we fail to see how Grant’s losses resulted from any failure to implement that policy as contemplated by OCGA § 50-21-24 (6). Mixon placed signage on SR 67 as requested, and at the time he left the scene, no limited visibility conditions existed on the roadway. Thus, had Mixon contacted GSP at that time, the undisputed evidence shows that there were no existing visibility issues for GSP to assess. And as we have explained, GDOT had no duty to monitor adjacent roadways for potential visibility issues, and neither the Agreement nor GDOT Policy places a duty on GDOT to alert GSP to provide such monitoring.

We find, therefore, that Grant has failed to show any negligence on the part of GDOT in implementing its own policies and thus, she has failed to carry her burden of establishing a waiver of sovereign immunity as to her claims against GDOT. As a result, we affirm the trial court’s grant of GDOT’s motion to dismiss Grant’s claims pursuant to the “right for any reason” rule. See Bobick v. Community & Southern Bank, 321 Ga. App. 855, 870 (4) (b) (743 SE2d 518) (2013) (grant of a motion to dismiss will be affirmed if right for any reason).

4. Finally, we consider whether the discretionary function exception found in OCGA § 50-21-24 (2) bars Grant’s one remaining claim, asserting that GFC was negligent in performing its duty to advise GSP about the fire. OCGA § 50-21-24 (2) provides that “[t]he state shall have no liability for losses resulting from . . . [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” The GTCA expressly defines the term “[discretionary function or duty” to mean “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22 (2).

Although GFC never argued until appeal that it was protected by sovereign immunity under subsection (2), the trial court nevertheless held that the exception under subsection (2) applied because it found “the situation in the instant case concerning GFC to be more like [that] contained [in Ga. Dept. of Human Svcs. v. Spruill, 294 Ga. 100 (751 SE2d 315) (2013)]” than in Davis, on which Grant relied. We note, however, that although in Spruill, the Supreme Court considered and applied subsection (2), 294 Ga. at 105-106 (2), in Davis, the Court construed the application of only subsection (6) to the facts in that case and did not address the applicability of subsection (2). 285 Ga. at 204-207. The trial court never undertook to determine whether Chassereau’s choice in delegating the duty to advise GSP to the county 911 dispatcher required the exercise of “a policy judgment in choosing among various alternative actions based on social, political, and economic factors” as required under OCGA § 50-21-22 (2). Accordingly, we find that the trial court applied the wrong test.

Decided July 14, 2016

Jones, Osteen & Jones, Billy N. Jones, Carl R. Varnedoe, for appellants.

Samuel S. Olens, Attorney General, Robert L. Bunner, Senior Assistant Attorney General, for appellees.

Nevertheless, even if we were to apply the proper test on de novo review, we find that the existing record lacks evidence upon which to base such a determination. GFC did not assert the applicability of subsection (2) below, and Grant did not have the opportunity to present evidence and argument in opposition. Therefore, the record is undeveloped as to the factors that may or may not have gone into Chassereau’s decision to delegate to the county 911 dispatcher GFC’s duty to advise GSP of the Stewart fire. Accordingly, we find that the trial court erred in granting GFC’s motion to dismiss under subsection (2) on the existing record.

Judgments affirmed in part and reversed in part.

McFadden, J., concurs. Miller, P. J., concurs fully in Divisions 1, 2 and 4 and in judgment only in Division 3.

       In Case No. A16A0224, Grant brought suit “individually and as the surviving spouse of Myles N. Grant, deceased, and as temporary administratrix of the Estate of Myles N. Grant, deceased.” In Case No. A16A0225, Grant brought suit “individually and as sole surviving heir of Joell D. Grant, deceased, and as temporary administratrix of the Estate of Joell D. Grant, deceased.”

       The complaint alleges that the accident took place at approximately 5:50 a.m., whereas the trial court found that the collision took place at approximately 5:30 a.m.

       As explained more fully in Division 4, GFC did not move to dismiss based on the discretionary function exception in OCGA § 50-21-24 (2), even though the trial court dismissed claims against GFC on this ground.

       In situations involving “Smoke, Smog,Etc.” [sic], GFC is assigned the responsibility to:
      Report to the nearest Georgia State headquarters the existence of limited visibility conditions and location.
      Coordinate with DOT officials to insure that signs are properly posted.
      Advise the Georgia State Patrol of the existence of large control burns or wildfires in the vicinity of state roadways.
      (spacing in original document). In addition, the Agreement notes that “Fog is generally so widespread that it would be logically impossible to address; however, an isolated patch of fog with sufficient density, to severely restrict or prevent passage through it, should be treated the same as smoke, smog, etc.”

       Grant also alleged in her complaint that GFC was negligent in issuing Stewart a burn permit under the prevailing weather conditions and surrounding circumstances. GFC argued in its motion that its actions in issuing the burn permit to Stewart fell under the exception set out in OCGA § 50-21-24 (9), which provides that “[t]he state shall have no liability for losses resulting from ... [1] icensing powers or functions, including, but not limited to, the issuance ... of... any permit, license, certificate, approval, order or similar authorization.” Grant conceded below that GFC’s actions in issuing the permit fell within the licensing exception set out in subsection (9) and asserts in her appellate briefs that she never asserted that permitting the burn caused the Accident. Accordingly, we need not address this claim on appeal.

       The parties apparently do not dispute that the fire would be considered either a large controlled burn or wildfire within the terms of the Agreement.

       In so finding, we express no opinion on the merits of Grant’s underlying negligence claims based on GFC’s alleged failure to notify, particularly whether Grant will be able to prove that any such failure proximately caused her loss.

       See Ga. Forestry Comm. v. Canady, 274 Ga. App. 556, 556-59 (617 SE2d 569) (2005) (outlining the facts surrounding the accident in that case).

       The Agreement provides that in cases of smoke or smog, GDOT has the obligation to, “[u]pon notification, dispatch crews with signs to the scene. This crew will be responsible for proper placement of warning signs. Furnish additional traffic control as requested.”

       The GDOT Policy provides, in pertinent part:
      6. When reports of threats to the safety of the traveling public are verified from either the GSP, or the Department’s own surveillance by maintenance or other personnel, a response will be triggered and comprised of the following:
      a. The Area Engineer or their designee will visit the site and determine the appropriate traffic control strategy to be developed for the incident.
      b. The District Traffic Operations Engineer shall assist in the selection of strategy or assessment of needs, upon request.
      c. The traffic control strategy for consideration shall include, but not be limited to, any one or more of the following:
      - Closing the road entirely
      - Using alternative routes
      - Deploying pilot car techniques
      - Displaying advance signage and/or warning lights
      - Narrowing the road to a single lane approach
      - Notifying the local media
      - Other actions.
      d. The [TMC] in Atlanta should be notified of any verified smoke, smog and/or fog incidents. Include the county, location and traffic control strategies being employed when making notifications.

       Similarly, although Grant also asserted that Mixon violated GDOT Policy by failing to notify GDOT TMC on March 16 of a “smoke hazard” caused by the fire, such omission cannot be linked to the Accident the next day because neither the Agreement nor the policy requires TMC or any other section of GDOT to monitor the situation involving the smoke. Rather, that responsibility is assigned to GSP, upon notice and as resources allow.