author: Boggs, Judge. MIKELL, Presiding Judge,

text:
    A11A2257.
    THE STATE v. BROWN.
    (726 SE2d 654)
   Boggs, Judge.

The State appeals from the trial court’s grant of Douglas Wayne Brown’s motion to suppress evidence obtained as a result of a roadblock. For the following reasons, we reverse.

“When reviewing a ruling on a motion to suppress, if the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, we do not defer to the trial court’s legal analysis or its application of law to undisputed facts. Rulings involving solely legal issues are reviewed de novo.” (Citations omitted.) State v. Dymond, 248 Ga. App. 582, 584 (1) (546 SE2d 69) (2001). The trial court here found the following facts:

On April 9,2010, the Defendant was arrested by officers of the Cobb County Police Department, charged with various offenses, and ultimately indicted for VGCSA, DUI, two counts of Obstruction of an Officer and attempted removal of a weapon from a Peace Officer.
Afew days prior to that date, although no evidence of the exact date was presented, Captain Charles Cox of the Cobb County Police Department, who was precinct commander of Zone 4 in Cobb County, sent an email to all precinct 4 officers in response to a “citizens traffic complaint” he had received. The complaint referenced speeding, racing and littering on Groover Road. Captain Cox’s email instructed all precinct 4 officers to handle the complaint. No further instructions were given.
On April 9, 2010, Sgt. Mar[ch]etta of the Cobb County Police Department made a decision in response to the e-mail sent by Captain Cox several days earlier, to set up a traffic safety check point, or roadblock. He testified that he did this acting as the supervisor implementing the checkpoint.
Only two officers participated in the checkpoint, Sgt. Mar[ch]etta and Officer David Smith.
The Officers activated their blue lights, wore vests and marked the checkpoint with cones. Every car was to be stopped for purposes of enhancing roadway safety. Both Sgt. Mar[ch]etta and Officer Smith were acting as screeners of drivers.
The Defendant approached the roadblock at approximately 7:05 p.m. Officer Smith, acting as [a] screener, made the initial contact after directing Defendant to stop his vehicle. Officer Smith smelled marijuana coming from the car, and observed a large folding knife clipped to Defendant’s pants. Defendant was removed from the vehicle and immediately became combative with both officers. Considerable effort from both officers was necessary to restrain him, and put him on the ground. Defendant was arrested and charged with various offenses, including possession of marijuana, which was found following a subsequent search of the vehicle.

In granting Brown’s motion to suppress, the trial court found that although Sergeant Marchetta was authorized to implement a checkpoint as a supervisor, no evidence was presented that the roadblock was planned in advance to occur at a specific time. In conjunction with this finding, the court concluded that Marchetta made the decision while acting as an officer in the field. The court found further that the roadblock was not sufficiently manned because Marchetta “should not act as a screening officer, the investigating officer and the chase-vehicle officer.”

The State argues on appeal that the legal requirements for the roadblock set forth in LaFontaine v. State, 269 Ga. 251 (497 SE2d 367) (1998), were met and that therefore the trial court should have denied Brown’s motion to suppress.

In examining the propriety of roadblock stops, the issue for resolution is not whether there was probable cause to stop the vehicle, but whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was “reasonable” under the Fourth Amendment.

(Citations omitted.) Id. at 252 (3). To justify a roadblock that serves legitimate law enforcement objectives,

the State must prove that a highway roadblock program was implemented at the programmatic level for a legitimate primary purpose, that is, that the roadblock was ordered by a supervisor, rather than by officers in the field, and was implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.

(Citations, punctuation and footnotes omitted.) Owens v. State, 308 Ga. App. 374, 375 (1) (707 SE2d 584) (2011). The minimum constitutional prerequisites for a roadblock are outlined by the Supreme Court of Georgia in LaFontaine, supra, 269 Ga. at 253 (3):

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication. [Cit.]

The purpose of these requirements is to ensure that individuals are not subject to arbitrary or oppressive invasions solely at the unfettered discretion of officers in the field. Id.

In this case, the trial court based its invalidation of the roadblock upon two specifically articulated bases, which allegedly violate the requirements set forth in LaFontaine. First, the court held that the State failed to prove the decision to implement the checkpoint was made by supervisory personnel rather than by officers in the field; and secondly, the trial court concluded that the roadblock was not sufficiently manned. Neither of these reasons withstands scrutiny.

1. With regard to the first ground, and based upon a cursory reading of Paragraph 7 of the trial court’s order, the trial court clearly based its decision that Marchetta was acting as an officer in the field, only in conjunction with and reliance upon the e-mail Marchetta received from his precinct commander a few days prior to the implementation of the roadblock. Indeed, the trial court concluded that “[t]he e-mail from the precinct commander which initiated the response simply instructed all precinct officers to handle the complaint. No checkpoint was ordered and no instructions were given.” It is clear that in reaching this decision, the trial court relied heavily upon a specific factual finding that “no evidence was presented that it was planned in advance to occur at a specific time.” This factual finding is belied by the record. The record reveals without dispute that Marchetta decided to implement the roadblock two days before and even sent another officer to survey the road before implementing it.

Moreover, while it appears that the reason for Marchetta’s decision originated with his captain, the decision to implement the roadblock was made by Marchetta, a supervisor who, as even the trial court concedes, had the authority to do so. See, e.g., Jacobs v. State, 308 Ga. App. 117, 120 (706 SE2d 737) (2011) (officer’s testimony that she was authorized to plan and implement roadblocks was sufficient to establish that fact); Gonzalez v. State, 289 Ga. App. 549, 551 (657 SE2d 617) (2008) (roadblock valid where uncontradicted testimony established that sergeant alone made decision to implement roadblock and evidence showed he had authority to do so; fact that sergeant participated in roadblock did not transform him from a supervisor into a field officer); Bennett v. State, 283 Ga. App. 581, 583 (642 SE2d 212) (2007) (pre-planned checkpoint not transformed into roving patrol because lieutenant testified that implementation of roadblock would depend upon number of officers available to support it); compare Thomas v. State, 277 Ga. App. 88, 90 (625 SE2d 455) (2005) (roadblock unauthorized because corporal on patrol made spur of the moment decision while meeting with other officers at convenience store, and no evidence presented that corporal had any specific authorization to implement roadblock).

It appears from the trial court’s order that the court reached the conclusion that Marchetta “made the decision while acting as an officer in the field,” focusing solely on the fact that Marchetta’s decision was prompted by the earlier e-mail of his precinct commander. Indeed, had Marchetta lacked the requisite authority to authorize and implement a checkpoint, it is clear that as an officer in the field, a roadblock premised solely upon the e-mail of the precinct commander would have been wholly noncompliant with the mandate of LaFontaine. However, based upon the facts presented here, the precinct commander’s e-mail is meaningless but for the fact that it apparently prompted the authorized action by Marchetta to implement a roadblock. Because of the particular facts of this case, wherein Marchetta had the independent supervisory authority to implement roadblocks, the actions of the precinct commander and the contents of his e-mail are irrelevant to a proper analysis of whether the roadblock authorized by Marchetta was compliant with LaFontaine.

Moreover, officers are not precluded as a matter of law from acting simultaneously as a supervisor and a field officer. See Jacobs, supra, 308 Ga. App. at 120; Gonzalez, supra, 289 Ga. App. at 551; Hobbs v. State, 260 Ga. App. 115, 117 (1) (579 SE2d 50) (2003). The trial court therefore erred in concluding as a matter of law that Marchetta was acting as an officer in the field.

2. The trial court also granted Brown’s motion to suppress on the ground that the roadblock “was not sufficiently manned as required by LaFontaine.” But whether the roadblock was sufficiently manned is not among the specific factors enumerated in LaFontaine, supra, 269 Ga. at 253, and we find no authority holding that an understaffed roadblock alone is sufficient to demonstrate that a stop was unreasonable under the Fourth Amendment. See, e.g., Brown v. State, 245 Ga. App. 706 (1) (538 SE2d 788) (2000) (no Fourth Amendment challenge raised where two officers manned roadblock).

The court, apparently relying on the Cobb County Police Department policy governing checkpoints, concluded that Marchetta could not be the checkpoint supervisor, screener and follow-up investigator. The police department policy, which was admitted at the hearing on the motion to suppress, provides that the approving supervisor should ensure that “[t]here is adequate manpower to safely and efficiently conduct the checkpoint. Normally, the checkpoint supervisor should not act as a screening officer.” The policy provides further that “traffic volume will in most cases determine the number of personnel needed for the traffic safety checkpoint,” that “[o]fficers will be needed” to screen motorists and conduct follow-up investigations, and at least one additional officer will be needed to stop those motorists who violate the law in the vicinity of the checkpoint or fail to stop at the checkpoint.

Here, Marchetta testified that based upon the size of the roadway and the amount of traffic on the roadway, two officers were sufficient to man the roadblock. And the police department policy does not prohibit a roadblock manned by only two officers; nor does it prohibit an officer from serving more than one role in conducting the roadblock. Moreover, as stated in Division 1, we have held that a supervising officer’s participation in a roadblock does not render the roadblock unconstitutional. See Gonzalez, supra. The trial court therefore also erred in its conclusion that suppression was required because the roadblock was not sufficiently manned.

Because the trial court erred in its conclusion that the roadblock was illegal as a matter of law, we must reverse the trial court’s grant of Brown’s motion to suppress.

Judgment reversed.

Miller, Blackwell and Dillard, JJ., concur. Barnes, P. J., Mikell, P. J., and Adams, J., dissent.

MIKELL, Presiding Judge,

dissenting.

I respectfully dissent. This appeal is governed by Miller v. State. In that opinion, the Supreme Court reversed our court’s finding and said that we had erred by applying a de novo standard of review. In Miller, as in the case at bar, a “clearly erroneous” standard of review applies. As explained by Justice Melton, writing for the majority:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant and their application to this trial court’s order would demand that the court’s order be affirmed.

In the case at bar, the trial court’s ruling was in favor of the defendant, and, as in Miller, it should be affirmed.

The majority here, as did the dissenters in Miller, goes beyond the trial court’s order to pick and choose from the record the facts which it deems important and upon which it would have relied if it had been sitting at nisi prius. Such an approach was expressly rejected by the majority in Miller. Testimony not mentioned by the trial court and not relied on by that tribunal, was impliedly discounted. It cannot be seriously contended that there was no evidence to support the trial court’s ruling. And the applicable standard of review, “clearly erroneous” is, in Georgia, the same as the “any evidence” standard.

The critical factual issue to be decided by the trial court was whether Marchetta, when he decided to have a roadblock, was acting as a supervisor or as a “field officer.” The trial court’s finding that Marchetta was a field officer was a possible inference from the evidence and hence must be affirmed by us under the rules announced in Miller and Tate. And all evidence must be construed “most favorably’ to upholding the trial court’s findings.

The distinction between “field officer” and supervisor is impossible to understand without knowledge of the reasoning of the United States Supreme Court in roadblock and checkpoint cases. Its consistent holding in considering police attempts to screen motor vehicles and drivers, in cases involving all types of checkpoints including DUI screening, Border Patrol immigration checks, driver’s license inspections, etc., is to allow these interferences with a citizen’s liberty only when the discretion of field officers as to the time, place and duration of the roadblock is as limited as practical. Its fear is that unlimited discretion, indeed any discretion, by field officers will amount to the dreaded and unconstitutional “roving-patrol.” Therefore decisions as to the time, place and duration of a roadblock must be made in advance by a supervisor at the executive level, or in the words of Justice O’Connor, the “programmatic” level. This seemingly hairsplitting distinction is required “to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.” “[I]n the absence of record evidence that the decision to establish the roadblock was made by anyone other than the officers in the field, the roadblock in question has certain characteristics of a roving patrol.” As the United States Supreme Court stated on another occasion,

[t]he location of a fixed [roadblock] is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a [roadblock] where it bears arbitrarily or oppressively on motorists as a class.

Problems have arisen in Georgia because of the loose usage in the precedents of the word “supervisor.” The problem is semantic. Most, if not all, field officers have a supervisor. And many Georgia appellate decisions emphasize that the decision was made by a supervisor and that the supervisor had the authority to order that the roadblock in question take place. (Of course he or she had that authority. Otherwise the contested roadblock would not have taken place.) The precedents are misleading because power to authorize the roadblock was never an issue and has no constitutional significance. The key issue is whether the supervisor is acting as an “executive level programmatic” official when he or she authorizes — in advance — the roadblock, or whether he or she was then a field officer.

In Georgia, it is in theory possible for a supervisor properly, as an executive, to order the roadblock and then later to participate in it. So a clearer way to phrase the key question is: was the supervisor at the moment he made the decisions about time, place and duration acting as a field officer or as a nonfield officer, thus avoiding the word “supervisor” altogether.

In which role the decision maker was acting at the moment the key decision was made is a question of fact, and one often difficult to discern. When a trial court has made that difficult ruling based on any evidence, we should affirm. The majority is completely correct that the e-mail from Captain Cox is not relevant to the present appeal. And the trial court’s finding that the roadblock was undermanned is similarly irrelevant. None of the federal or state precedents mentions adequate staffing as a constitutional requirement.

Decided March 26, 2012

Patrick H. Head, District Attorney, Richele P. Anderson, Anna G. Cross, Assistant District Attorneys, for appellant.

John A. Steakley, for appellee.

The bench and bar should be aware that none of this constitutional hairsplitting applies in an emergency. If for example, three escaped convicts are said to be heading north on State Highway 208, or the co-conspirator of a terrorist says his friend is driving a van full of explosives toward a nuclear power plant, or an “Amber” alert includes the abductor’s route, or witnesses say that the bank robbers are heading out of town on the road to Statesboro, then of course law enforcement may use the time-honored technique of a roadblock. If the roadblock incidentally nabs a drunk driver or a car reeking of marijuana, by all means arrest the culprit. The roadblock and the arrest will be found by the courts to have been valid and constitutional.

In conclusion, the trial court should be affirmed because it found, after hearing from witnesses, that the person who made the decisions, Marchetta, was acting as a “field officer” and not as a “nonfield officer” at the programmatic level when he made the crucial decisions. We should not second guess the trial court based on a cold record. I would affirm the order suppressing the evidence.

I am authorized to state that Presiding Judge Barnes and Judge Adams join in this dissent.

       Paragraph 7 of the order granting the motion to suppress states as follows:
      The Court finds that the implementation of the roadblock was illegal and failed to adhere to the requirements as set forth in LaFontaine v. The State, 269 Ga. 251, 1998, for several reasons.
      First, the State failed to prove that the decision to implement the checkpoint was made by supervisory personnel rather than by officers in the field. The e-mail from the precinct commander which initiated the response simply instructed all precinct officers to handle the complaint. No checkpoint was ordered and no instructions were given.
      Although Sgt. Mar[ch]etta, as a supervisor, was authorized to implement a checkpoint, the Court finds, from the evidence presented, that he made the decision while acting as an officer in the field and that no evidence was presented that it was planned in advance to occur at a specific time.
      Additionally, the roadblock was not sufficiently manned to allow supervision of screening officers. Sgt. Mar[ch]etta testified that he was acting as checkpoint supervisor, as screener, as follow up investigator of motorists whom the screeners had developed articulable suspicion or probable cause to detain, and as the back up officer needed to initiate traffic stops of motorists who violate state law or refuse to stop at the checkpoint. Adequate manpower is required by law to implement a checkpoint because it is necessary to safely and efficiently conduct the checkpoint. The checkpoint supervisor should not act as a screening officer, the investigation officer and the chase-vehicle officer. The facts of this case illustrate very clearly why the standards and procedures set forth in the Cobb County Police Department Policy 519 regarding Traffic Safety Checkpoints which are based on sound case law are required to be adhered to by the police. The problems that developed following the stop of this Defendant’s car illustrate the importance of following the requirements as set forth in LaFontaine v. The State. Two officers is not and was not adequate manpower. This roadblock was not sufficiently manned, as required by LaFontaine v. The State.

      Therefore, as Defendant was stopped without any reasonable articulable suspicion of criminal activity or probable cause, and the roadblock was illegal, Defendant’s Motion to Suppress is GRANTED.

       288 Ga. 286 (702 SE2d 888) (2010).

       Id. at 287, n. 1.

       (Footnote omitted.) Id. at 286-287, quoting Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       Id. at 289 (2). The trier of fact may believe or disbelieve all or any part of the testimony of any witness. See Massengale v. State, 264 Ga. 51, 52 (2) (a) (441 SE2d 238) (1994). See generally State v. Austin, 310 Ga. App. 814, 822 (1) (714 SE2d 671) (2011) (Mikell, J., concurring specially).

       Id.

        Hanson v. Kent, 263 Ga. 124 (2) (428 SE2d 785) (1993). Accord Turpin v. Todd, 271 Ga. 386, 390 (519 SE2d 678) (1999); Derrer v. Anthony, 265 Ga. 892, 894 (1) (463 SE2d 690) (1995).

        Miller, supra at 286 (1), quoting Tate, supra at 54 (1).

        Illinois v. Lidster, 540 U. S. 419, 424 (II) (124 SC 885, 157 LE2d 843) (2004); City of Indianapolis v. Edmond, 531 U. S. 32, 42-45 (III) (121 SC 447, 148 LE2d 333) (2000); Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 452-453 (110 SC 2481, 110 LE2d 412) (1990); Delaware v. Prouse, 440 U. S. 648, 653 (III) (99 SC 1391, 59 LE2d 660) (1979); United States v. Martinez-Fuerte, 428 U. S. 543, 557-558 (IV) (B) (96 SC 3074, 49 LE2d 1116) (1976).

       The definition of a “roving-patrol,” as distinguished from, for example, a “patrol,” seems to have been common knowledge among jurists in Washington, D. C., as early as 1973. Almeida-Sanchez v. United States, 413 U. S. 266, 268 (93 SC 2535, 37 LE2d 596) (1973). Usage of the phrase has now spread to the hinterland. See, e.g., Bennett v. State, 283 Ga. App. 581, 583 (642 SE2d 212) (2007).

        Edmond, supra at 46 (III).

       (Citations omitted.) Brown v. Texas, 443 U. S. 47, 51 (II) (99 SC 2637, 61 LE2d 357) (1979), quoted in LaFontaine v. State, 269 Ga. 251, 255 (497 SE2d 367) (1998) (Sears, J., dissenting and concurring specially).

       (Punctuation and footnotes omitted; emphasis supplied.) 4 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 10.8 (d) at 697 (3d ed. 1996).

       (Footnote omitted.) Martinez-Fuerte, supra at 559 (IV) (B).

        Bennett, supra at 583; LaFontaine, supra at 253-254 (3); State v. Golden, 171 Ga. App. 27, 29-30 (318 SE2d 693) (1984).

        Bennett, supra.

       Evidence that the key questions of time, place, and duration were settled back at headquarters in the supervisor’s office would be quite persuasive.

       The gold standard for compliance with the “nonfield officer” standard was the now superceded Cobb County Police standard operating procedure which required an executive official to order the roadblock one week in advance, in writing, specifying the time, place, and duration. The constitution does not require this degree of perfection.

       There is a requirement that the “screening officer” be adequately trained, but no mention of the required minimum staffing. Common sense might suggest that having only two officers at the roadblock in question was inadequate. But staffing is an issue of management and supervision, not of the federal or state constitution.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A11A2355.
    HEARN v. DOLLAR RENT A CAR, INC. et al.
    (726 SE2d 661)
   Boggs, Judge.

In this appeal, Minnie Hearn asserts that the trial court erred in granting summary judgment in favor of Dollar Rent A Car, Inc. (“Dollar”), York STB, Inc. (‘York”), andDTG Operations, Inc. (“DTG”) in this case involving an alleged breach of a settlement agreement. Hearn also contends that the trial court erred in awarding OCGA § 9-15-14 attorney fees against her and her attorney in two separate orders. For the reasons explained below, we affirm the portion of the trial court’s order granting summary judgment in favor of Dollar, reverse the remainder of the trial court’s summary judgment order, and vacate both of the orders awarding attorney fees.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA§ 9-11-56 (c). On appeal from the grant or denial of summary judgment, we apply a de novo standard of review, and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

A defendant may [prevail on summary judgment] 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. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations omitted; emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Statement of Facts

The record shows that Minnie Hearn filed her complaint against DTG, York, and Dollar based upon a dispute as to whether a $20,000 settlement check should include Medicare as a payee. The settlement arose from a November 28, 2002 automobile accident in which the driver of a car rented from DTG struck Hearn’s vehicle. DTG “contractually retained York as an independent Third Party Administrator (‘TPA’) to handle claims in Georgia against DTG’s renters.”

During settlement discussions between Hearn’s attorney, Guy Michaud, and a claims adjuster with York, the issue of Medicare’s involvement arose. According to the claims adjuster, she relied upon Michaud’s representation that Medicare did not have an enforceable lien when she agreed not to include Medicare as a payee on the check.

Michaud provides a different version of events. In his deposition, he explained that “from day one” he and the claims adjuster both knew that Hearn had been on disability and that Medicare paid some of her bills relating to the accident. In support of this claim, Michaud points to the medical bills that he provided to the claims adjuster in May 2004 that indicated that Medicare had made adjustments, write-offs, and payments.

On October 5, 2004, the claims adjuster offered in writing to settle Hearn’s claim for $20,000. There was no mention of Medicare being an additional payee on any settlement check in this letter. In a letter sent to the adjuster on November 17, 2004, Michaud confirmed a $20,000 settlement agreement reached in a telephone conversation the same day and requested that she “forward the draft and release as soon as possible.” This letter makes no mention of Medicare as an additional payee on the settlement check.

Michaud testified that before he sent his November 17, 2004 letter, he discussed Medicare with the adjuster. Because neither of them had received any notice and were not aware that Medicare was asserting its right of reimbursement, they “agreed that the check — the settlement draft would not have Medicare on it.” He explained that when parties receive written notice from Medicare that it plans to seek reimbursement, it is commonly referred to as a lien, and that he and the adjuster agreed that there was “no lien” in connection with Hearn’s injury. He also testified that it was his belief that he had no duty to notify Medicare of the settlement if Medicare had not notified anyone of its intent to seek reimbursement. He would take steps to protect his client, however, by holding back a portion of the settlement in a trust account to satisfy any claim that might be made by Medicare after completion of the settlement. In his experience, if Medicare does not assert a claim within two years of an injury, “usually they don’t come back at all.”

Michaud testified that the adjuster agreed to provide the settlement check with a copy of the release for his client to sign, but he received the release only. When he called the adjuster, she explained that her supervisor instructed her to wait to issue the settlement check until after they received a signed release. Michaud testified that the adjuster agreed that “we still have an agreement Medicare is not involved; they never filed a lien.”

Five days before the expiration of the statute of limitation on her personal injury claim, Hearn signed the release, which included her agreement to indemnify against “all further liability, loss, damage, claims of subrogation and expense.” She also agreed to release “known and unknown liens including Medicare.” After returning the executed release to the adjuster, Michaud received a check that included Medicare as a payee. When he called the claims adjuster, she informed him “there’s nothing she could do and [he would] have to talk to her supervisor.”

When the supervisor failed to return his phone calls, Michaud sent a letter to the claims adjuster stating:

This will confirm this morning’s conversation regarding the settlement check. Medicare is not a party, has no interest, had never filed a lien, and it is too late to file one now. The check is not negotiable, useless. Also, if you’ll read line 11 of your release, you are protected against any Medicare liens, if any.
Please reissue the check & leave out Medicare.

York did not comply with Michaud’s request.

Proceedings Below

Hearn, with new counsel, filed a complaint for breach of the settlement agreement against Dollar, DTG, and York. When Hearn’s counsel learned that defense counsel, Frank Harris, contacted Medicare shortly after the lawsuit was filed and “notified] it of a claim in this case,” he amended the complaint to assert a claim against Harris based upon the theory that Harris became an “active participant in the deeds of his clients.” Harris moved to strike the amended complaint adding him as a party defendant because Hearn did not seek leave of court. Harris also moved to dismiss the amended complaint for failure to state a claim and sought attorney fees under OCGA § 9-15-14. The trial court struck the amended complaint because leave of court to amend had not been obtained under OCGA §§ 9-11-15 (a) and 9-11-21. It also granted Harris’s motion for sanctions and concluded that “attorney[ ] fees will be awarded in an amount to be determined.” The trial court held a hearing on April 24, 2009, “concerning the appropriate amount of fees to be awarded.” In an order dated May 1, 2009, the trial court awarded Harris $1,775 in attorney fees under OCGA § 9-15-14. This order did not include any findings of fact in support of the award.

Dollar, DTG, and York subsequently moved for summary judgment in their favor with regard to Hearn’s claim for breach of the settlement agreement. The trial court granted the defendants’ summary judgment motion and also awarded them attorney fees and expenses of litigation under OCGA § 9-15-14. The trial court concluded that any agreement not to include Medicare as a payee was unenforceable because York relied upon an erroneous assurance by Michaud that ‘Medicare had no enforceable claim of any kind.” The trial court found that York was entitled to add Medicare as a payee on the check as a good business practice when it “subsequently realized that Michaud’s statement was incorrect.” Additionally, the trial court found that it would not assist the “Plaintiff to evade her duty to reimburse Medicare” because doing so “would clearly contravene the public policy in favor of reimbursement.” The trial court also concluded that Dollar was entitled to summary judgment in its favor because it “had no involvement in this case.” Finally, the trial court concluded that DTG was entitled to summary judgment because York settled the claim as an independent contractor for whom DTG could not be held liable.

In the same order, the trial court further ruled that all of the defendants were entitled to attorney fees under OCGA § 9-15-14 because Hearn and her counsel did “not provide the Court with any authority for the proposition that Defendants ever were, or ought now to be, required to act upon Michaud’s erroneous representation and/or to ignore the clear indications in Plaintiff’s medical records that Medicare had an interest in the outcome of this case.”

Review of Summary Judgment

1. We first consider whether the trial court properly concluded in its summary judgment order that DTG and Dollar could not be held liable for any breach of contract, that Hearn had no valid claim for breach of the settlement agreement, that public policy would preclude enforcement of an agreement to omit Medicare as a payee, and that Hearn suffered no damages from any alleged breach of contract.

(a) Summary judgment as to DTG. Hearn contends the trial court erred by granting summary judgment in favor of DTG on the ground that it could not be held liable for the conduct of its independent contractor, York, in settling the claim. A claims manager for York provided an affidavit in which she explained that “[b]oth financially and administratively, the responsibility for administering and settling Georgia claims began and stayed with DTG.” But she also explained that “DTG ... contractually retained York as an independent Third Party Administrator (‘TPA’) to handle claims in Georgia against DTG’s renters.” Under this arrangement, York and its employees had complete discretion and authority to enter into settlement negotiations and actual settlements without any input from DTG or any other entity. This authority included issuing and signing settlement checks. ‘York and its personnel were operating pursuant to the standing authority described above” when York negotiated the settlement agreement and later issued a check that included Medicare as a payee.

Hearn contends that issues of fact exist with regard to DTG’s liability because the settlement check that included Medicare as a payee listed DTG as the payor and that this check raises an issue of fact as to DTG’s involvement in the settlement. While we conclude that the trial court erred by granting summary judgment in favor of DTG, we do so for a different reason.

This is a breach of contract action, not a tort suit, and it appears from the record that DTG is the principal responsible for paying the agreed-upon settlement amount negotiated by its agent, York. See OCGA § 10-6-1 (defining principal-agent relationship). The record shows that DTG was obligated to pay any settlement amounts negotiated by its agent, York, and that issues of fact remain as to whether DTG issued payment according to the terms of the settlement agreement, which are also disputed. A principal is “bound by all the acts of his agent within the scope of his authority.” OCGA § 10-6-51. “Essentially an agent has authority to establish contractual relations with third parties and his principal.” Remediation Svcs. v. Ga.-Pacific Corp., 209 Ga. App. 427, 430-431 (1) (433 SE2d 631) (1993). Because the record shows without dispute that York acted within the scope of its authority by entering into a settlement contract with Hearn on behalf of DTG, the trial court erred by granting summary judgment in DTG’s favor in this breach of contract action.

(b) Summary judgment as to Dollar. The trial court properly granted summary judgment in favor of Dollar, however, based upon evidence in the record showing that the rental car in the accident was owned by DTG, not Dollar, and that York was not acting on behalf of Dollar when it settled the case. Cf. Summit Automotive Group v. Clark, 298 Ga. App. 875, 882-884 (4) (681 SE2d 681) (2009) (franchisor not liable for acts of franchisee “merely because of the franchisor/ franchisee relationship”).

(c) Summary judgment as to DTG and York. Hearn contends issues of material fact exist with regard to the terms of the settlement agreement and DTG and York’s breach of the agreement.

In deciding whether the parties entered into an enforceable settlement agreement, we are governed by well-established principles. Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.

(Citations, punctuation and footnote omitted.) Anderson v. Benton, 295 Ga. App. 851, 854 (1) (673 SE2d 338) (2009). In this case, the parties agree that one of the terms of the settlement contract was that Medicare would not be included as a payee on the settlement check. They disagree, however, about the claims adjuster’s knowledge with regard to the existence of a right of reimbursement by Medicare. The claims adjuster contends she relied upon Michaud’s representation “that Medicare had no enforceable claim of any kind.” Michaud on the other hand, asserts that both he and the claims adjuster were aware of the Medicare payments, but mutually agreed not to include Medicare as a payee because it had not notified anyone of its intent to seek reimbursement. Issues of fact therefore exist with regard to whether Michaud made any misrepresentation to the claims adjuster. See Lloyd v. Kramer, 233 Ga. App. 372, 375 (1) (503 SE2d 632) (1998) (party not entitled to summary judgment; issue of fact remained on whether alleged misrepresentation made to obtain written consent); McReynolds v. Krebs, 307 Ga. App. 330, 336 (4) (705 SE2d 214) (2010) (settlement agreements must fulfill same requirements for enforceability as other contracts); Dyer v. Honea, 252 Ga. App. 735, 739 (3) (a) (557 SE2d 20) (2001) (outlining remedies available for fraudulent inducement to enter into contract).

Questions of fact also exist regarding the reasonableness of the claims adjuster’s reliance on any alleged misrepresentations by Michaud. The decision to change the agreed-upon payees on the settlement check was made after a supervisor reviewed medical records that had been in possession of the claims adjuster for over six months. See Northwest Plaza v. Northeast Enterprises, 305 Ga. App. 182, 191 (3) (a) (699 SE2d 410) (2010) (“[i]ssues of justifiable reliance and proper due diligence are generally for the jury”). The trial court therefore erred in accepting York’s version of the facts to conclude that Hearn had no valid claim for breach of the settlement agreement.

(d) Summary judgment on issue of public policy. Our analysis does not end here, however, because we must also determine whether the trial court properly concluded, in the alternative, that public policy precludes enforcement of any agreement to omit Medicare as a payee on a settlement check when the parties have knowledge of a potential Medicare claim. Before addressing the propriety of the trial court’s ruling, we will review the law regarding Medicare’s right of reimbursement, as well as its impact upon settlement agreements. As one court has noted,

this is hardly the first settlement to be derailed because of unresolved questions relating to Medicare liens. Rarely, these have led to published decisions. [Cit.] More frequently, they have simply led to frustration and misunderstanding. Counsel would therefore be well advised to be aware of developments in this area of law and take them into account in fashioning unambiguous settlement agreements.

Hackley v. Garafano, 2010 Conn. Super. LEXIS 1669, at *15 (D. New Haven, Case No. CV095031940S, decided July 1, 2010).

Under 42 USC § 1395y (b) (2) (B) (i), Medicare may conditionally pay the medical bills of an injured person, subject to Medicare’s right to obtain reimbursement of those payments. The Centers for Medicare and Medicaid Services (CMS) “has a direct right of action to recover from any primary payer” amounts paid by Medicare. 42 CFR § 411.24 (e); 42 USC § 1395y (b) (2) (B) (ii). “Primary payer” is defined to include “any entity that is or was required or responsible to make payment. . . under a primary plan,” 42 CFR § 411.21, and “primary plan” is broadly defined to include “a group health plan or large group health plan, a workers’ compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan), or no-fault insurance.” 42 CFR § 411.21. “Primary payment means, when used in the context in which Medicare is the secondary payer, payment by a primary payer for services that are also covered under Medicare.” 42 CFR § 411.21.

CMS also “has a right of action to recover its payments from any entity, including a beneficiary, provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment.” 42 CFR § 411.24 (g). “If the beneficiary or other party receives a primary payment, the beneficiary or other party must reimburse Medicare within 60 days.” 42 CFR § 411.24 (h).

In the case of liability insurance settlements and disputed claims under employer group health plans, workers’ compensation insurance or plan, and no-fault insurance, the following rule applies: If Medicare is not reimbursed [within 60 days], the primary payer must reimburse Medicare even though it has already reimbursed the beneficiary or other party.

42 CFR § 411.24 (i) (1). The above quoted paragraph also applies “if a primary payer makes its payment to an entity other than Medicare when it is, or should be, aware that Medicare has made a conditional primary payment.” 42 CFR § 411.24 (i) (2). Additionally, CMS may obtain double damages in any suit to collect from a primary payer. 42 USC § 1395y (b) (2) (B) (iii).

Under this statutory and regulatory framework, York faced potential liability for both the amount of any Medicare lien and double this amount if Hearn failed to satisfy any such lien within 60 days of receiving the settlement check. See 42 CFR § 411.24 (h); Toomer v. Allstate Ins. Co., 292 Ga. App. 60, 62-63 (663 SE2d 763) (2008). The issue before us, therefore, is whether summary judgment was appropriate under the alternative theory that public policy precludes enforcement of an agreement to omit Medicare as a payee on a settlement check, when both parties have knowledge that Medicare has a right to seek reimbursement.

There are no Georgia cases addressing this issue, and few cases from other jurisdictions touch upon it. One court has enforced a settlement agreement providing that Medicare would not be listed as a payee. See Wright v. Liberty Med. Supply, 2011 U. S. Dist. LEXIS 81621 (D. S.C. 2011). See also Riccardi v. Strunk, 2010 Conn. Super. LEXIS 186 (D. New London, Case No. CV085008671, decided January 22,2010) (nothing in settlement agreement authorized insurer to add Medicare as a payee on check). Other courts have concluded that federal law does not require an insurance company to include Medicare as a payee. Tomlinson v. Landers, 2009 U. S. Dist. LEXIS 38683, at *14-16 (III) (2) (M.D. Fla. 2009). See also Wisinski v. American Commerce Group, 2011 U. S. Dist. LEXIS 320 (III) (A) (2) (c) (N.D. Pa. 2011) (insurer’s insistence that Medicare be listed as payee on check when plaintiff agreed to indemnify against any Medicare claims supported bad faith claim against insurer). As one court has noted,

there is no authority for an insurer’s insistence that it protect a governmental agency’s lien by making that agency a co-payee on a check tendered in payment of a judgment or settlement. To the contrary, the recent case of Zaleppa v. Seiwell, 9 A.3d 632 (Pa. Super. 2010), stands for the proposition that, absent express authorization, private parties may not assert the interests of the government (in that case, Medicare) in a post-trial motion or any phase of litigation. Generally, putting an agency’s name on a check as a co-payee is neither authorized or required under federal or state law, and quite obviously, is not an efficient way to resolve personal injury lawsuits. . . .
While an insurer has a responsibility to assure that governmental agency liens are taken into account, such responsibility is generally discharged by obtaining a written commitment by the plaintiff, either in a release document or in an independent document, to be responsible for the payment of all such liens. . . .

McBride v. Brown, 2011 Conn. Super. LEXIS 830 (D. New Haven, Case No. CV085021216S, decided April 4, 2011).

In the limited context of bad faith failure-to-pay claims against insurance companies, some courts have determined that, in the absence of an explicit agreement, it is reasonable for an insurer to list Medicare as a payee on a settlement check. See Porter v. Farmers Ins. Co., 2012 U. S. Dist. LEXIS 9862 (II) (B) (B) (3) (N.D. Fla. 2012) (reasonable for insurer to initially list Medicare a co-payee on UM benefits check before issues regarding Medicare claim resolved); Wilson v. State Farm &c. Ins. Co., 795 FSupp.2d 604, 607 (III) (W.D. Ky. 2011) (no bad faith when insurer sought to make Medicare a payee on check before paying limits of UM policy); Lewis v. Allstate Ins. Co., 2006 Tex. App. LEXIS 2055 (Tex. Ct. App. 2006) (insurer did not breach obligation to pay UM benefits by listing Medicare as co-payee on check).

After reviewing and considering the Medicare reimbursement statutes and regulations relevant to the specific facts of this case, we conclude that public policy does not preclude a court from enforcing an agreement to omit Medicare as a co-payee on a settlement check where, as here, the plaintiff signed a release that acknowledged her responsibility to pay any Medicare claim and agreed to indemnify the released parties. We express no opinion as to whether public policy would be violated in the absence of an express acknowledgment of liability and/or an indemnity agreement.

(e) Summary judgment on issue of damages. The final alternative ground relied on by the trial court to grant summary judgment in favor of the defendants was its conclusion that Hearn incurred no damages from York’s inclusion of Medicare as a payee on the settlement check. Specifically, the trial court found that the settlement check including Medicare as a payee “was fully negotiable as originally written. Thus the Court can discern no damage to Plaintiff from its having been written in that manner. Certainly, Plaintiff has never identified what her purported damages might be.” We must therefore consider the trial court’s damages analysis.

The proper remedy for breach of a settlement agreement is an action for breach of contract, which under proper circumstances may include a claim for specific performance. See Gallagher v. The Fiderion Group, 300 Ga. App. 434, 437 (1) (685 SE2d 387) (2009). Additionally, “[i]n every case of breach of contract the injured party has a right to damages, but if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.” OCGA § 13-6-6. Based upon Hearn’s right to seek specific performance of an express agreement regarding the payees to be listed on her settlement check, and the general right to seek nominal damages in breach of contract actions, we conclude that genuine issues of fact remain with regard to damages suffered by Hearn. Additionally, we note that Hearn has not yet received any funds, even though she executed a release of her personal injury claim as well as an indemnity agreement with regard to Medicare payments.

Award of Attorney Fees

2. We next review the propriety of the trial court’s orders of April 8, 2011 and May 1, 2009, awarding attorney fees against Hearn and her counsel.

(a) Attorney fees incurred in defense of suit. In its December 21, 2010 order granting summary judgment in favor of the defendants, the trial court concluded that the defendants were also “entitled to an award against Plaintiff and her counsel, pursuant to OCGA§ 9-15-14 (a), for attorney[ ] fees and expenses incurred by Defendants during the course of this case.” Following a hearing on the amount of attorney fees to be awarded, on April 8, 2011 the trial court ordered that Hearn pay $5,000 and her attorney pay $35,000 to the defendants for the “reasonable and necessary value of the legal services provided in defense of this litigation.” The order recited that the attorney fees and expenses were “merited on the grounds that the Plaintiff and her attorney... acted in a manner during the pendency of this litigation that lacked substantial justification, interposed delay, interposed harassment and unnecessarily expanded the proceeding.”

Hearn contends that this attorney fees award should be vacated if we conclude that any portion of her suit presented justiciable issues or had a substantial basis. Based upon our conclusion that the trial court erred, in part, by granting summary judgment in favor of the defendants, we must vacate the trial court’s attorney fees award. See City of Albany v. Freeney, 313 Ga. App. 24, 28 (2) (720 SE2d 349) (2011) (reversal of grant of summary judgment requires reversal of attorney fees award). Without more specific factual findings in the trial court’s order, we cannot determine what portion of its award may relate to the claims for which we have concluded genuine issues of material fact exist. Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009). On remand, we direct the trial court to reconsider its April 8, 2011 award of attorney fees in light of our opinion and to enter a new judgment, from which an appeal by either party is authorized.

(b) Attorney fees incurred in defense of amended complaint against defense counsel. We must also vacate the trial court’s May 1, 2009 order awarding attorney fees under OCGA§ 9-15-14 because the trial court’s order does not include the necessary findings of fact to support the award. See Reese v. Grant, 277 Ga. 799 (596 SE2d 139) (2004); Dan J. Sheehan Co. v. The Fairlawn on Jones Homeowners Assn., 312 Ga. App. 787, 792 (3) (720 SE2d 259) (2011). “A judgment devoid of express findings of fact and conclusions of law as to the statutory basis for an award of attorney fees under OCGA § 9-15-14 must be vacated and the case must be remanded for reconsideration.” (Citations, punctuation and footnote omitted.) Dan J. Sheehan Co., supra at 792 (3). On remand, we direct the trial court to reconsider its May 1, 2009 order, make appropriate findings of fact, and enter a new judgment from which appeal by either party is authorized.

Decided March 26, 2012.

Richard J. Tuneski, for appellant.

Harris & Bunch, Frank P. Harris, for appellees.

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded with direction.

Mikell, P. J., and Dillard, J., concur.

       Specifically, she averred in her affidavit:
      5. During the course of our settlement negotiations, the subject arose as to whether Medicare might have any lien, right of reimbursement, or other claim with respect to the proceeds. Attorney Michaud told me flatly that Medicare had no enforceable claim of any kind. (Emphasis omitted.)
      6. In reliance upon Attorney Michaud’s assurances with respect [sic] the absence of any possible claims by Medicare, I sent Attorney Michaud a form Release for Ms. Hearn’s signature, and I requested issuance of a settlement check in the agreed amount, with Ms. Hearn and Attorney Michaud as the only payee.
      7. Shortly thereafter, as part of our standard procedure before settlement checks are put in the mail, the file and settlement terms were reviewed by my then-supervisor, Mary Susie. Ms. Susie noticed and pointed out to me that certain medical records that had been sent to us by Attorney Michaud himself indicated that some of Ms. Hearn’s medical expenses from the accident of November 28,2002, had in fact been paid by Medicare. This necessarily meant that, in direct contradiction to what Attorney Michaud’s representations to me [sic], Medicare did have a right of reimbursement that would be enforceable not merely against Ms. Hearn, but also against any third party payor who ignored that right of reimbursement. (Emphasis omitted.)
      8. In order to protect against any possibility that Medicare might accuse York, DTG, and/or [the rental car driver] of ignoring Medicare’s claims, or being complicit in any alleged attempt by Ms. Hearn and/or Attorney Michaud to defraud Medicare with respect to such claims, I requested that the settlement check be re-issued with Medicare as an additional payee, along with Ms. Hearn and Attorney Michaud. That settlement check was then forwarded to Attorney Michaud.

       The defendants attached to their answer a March 23, 2005 letter from Medicare stating: “Attached is your file copy of Medicare’s right of recovery letter sent to the attorney representing the above beneficiary in this matter. If you have any questions regarding this case please contact the attorney and/or lead contractor identified on the attached. A copy of this notice has also been sent to the beneficiary.” The letter was sent to ‘York Claims Service . . . c/o Frank Harris” and listed Hearn as the beneficiary in the re line. The letter does not list a specific reimbursement amount claimed by Medicare.

       Hearn does not contend in this appeal that the trial court erred by striking her amended complaint. Although she filed previous notices of appeal during the pendency of this case in connection with this order, this Court dismissed them based upon her failure to comply with the interlocutory appeal procedures contained in OCGA § 5-6-35.

       The record before us does not include a transcript of this hearing although it was requested by Hearn in her notice of appeal.

       66 Fed. Reg. 35437.

       Unlike the trial court, we are not persuaded that the reasoning of the Florida Court of Appeals’ decision in Pollo Operations v. Tripp, 906 S2d 1101 (Fla. App. 2005), applies to the facts before us. In Polio Operations, the plaintiff’s attorney sought a check from the defendant insured, as opposed to the insurer, based upon his belief that it would preclude Medicare from obtaining reimbursement. 906 S2d at 1102-1103. Based upon the express intent to circumvent Medicare reimbursement, the Florida Court of Appeals was “loath to permit the courts of this state to become blessing machines for such conduct.” Id. at 1106. In this case, however, no evidence was presented of such a scheme.

       In Brewer, we reversed the trial court’s attorney fees award because [t]he trial court failed to specifically address each of the 12 counts of the complaint or to make a specific finding that all the claims were frivolous for the reasons stated in its order. Further, the trial court failed to apportion fees between those incurred in defending against the claims deemed frivolous and any that were not. Therefore, we cannot tell from the court’s order what amount of fees would be appropriate with respect to Bobby Brewer’s claim on a debt or as to any other remaining claim. As we have held in cases involving OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award “to those fees incurred because of [the] sanctionable conduct.” Lump sum or unapportioned attorney fees awards are not permitted in Georgia.
      (Citations and punctuation omitted; emphasis in original.) Id.


author: Miller, Judge.

text:
    A11A2100.
    PECK v. LANIER GOLF CLUB, INC.
    (726 SE2d 442)
   Miller, Judge.

Michael D. Peck filed this action for a declaratory judgment and an injunction against Lanier Golf Club, Inc., claiming that he acquired an implied easement or implied restrictive covenant in Lanier’s adjacent golf course property. Lanier filed a motion for summary judgment, contending that there is no evidence supporting Peck’s claims. The trial court granted Lanier’s motion, from which Peck appeals. Peck contends that the trial court’s grant of summary judgment in Lanier’s favor was improper since there was a genuine issue of material fact as to whether an implied easement in the golf course existed. We discern no error and affirm.

n appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence. Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case.

(Citations and punctuation omitted.) Rubin v. Cello Corp., 235 Ga. App. 250, 250-251 (510 SE2d 541) (1998).

So viewed, the undisputed facts and evidence in this case are as set forth in the prior appeal of Peck II:

[I]n 1970, the owner of a large tract of rural land in Forsyth County developed an 18-hole golf course. At that time, the golf course was the only development in the area. The golf course became known as the Canongate Golf Club and eventually was conveyed to Lanier Golf Club, which took over operations of the golf course.
In 1971, the owner of property located adjacent to the golf course began selling sections of property to various residential developers for the construction of multiple subdivisions containing single family residences and town homes. The developers involved with the subdivision projects included Habersham on Lanier; Arasom, N.V.; John Wieland; Lanier Golf Club; Four Mantons, Inc.; and Michael Smith Homes____
The properties on the south and east sides of the golf course were conveyed to Arasom, N.V. for a development that eventually became the “Canongate on Lanier” subdivision, which included several sections designated as Sections C, E, F, G, H and J[.] ... Arasom later conveyed several lots from Section J ... to Lanier Golf Club for development. Lanier Golf Club sold Peck his lot in the subdivision.
In 1979, Arasom reached an agreement that authorized it to use the trade name “Canongate on Lanier” for its subdivision, on the condition that Arasom’s agents and realtor inform all prospective buyers, lot purchasers, and any others associated with the development that Arasom was “in no way affiliated with... the ownership or operation of the [golf course]” and to give written notice that “no membership or use rights of any kind whatsoever in the [golf course] [were] granted by virtue of the purchase of the subject property from [Arasom].” The realtor who was the exclusive marketing agent for the Arasom development testified that she had disclosed to prospective buyers that there was no right to use the golf course, in accordance with the Arasom agreement.
Peck’s lot purchase agreement contained a clause that provided that “[n]o representation, promise, or inducement not included in [the agreement] shall be binding upon any party hereto.” His purchase agreement did not contain any representations regarding the golf course. In addition, Peck, along with all other purchasers who bought lots in the Arasom development, signed addendums to the closing statements, which contained the following acknowledgment:
Purchaser understands that seller is not affiliated with or a part of [the golf course], and that purchaser shall not receive any membership in or right of use of [the golf course] as a result of the purchase of the . . . property.
A marketing brochure for the Canongate on Lanier subdivision showed photographs of the golf course and described the . . . community as being “nestled in the meticulously sculptured landscape of [the] 18-hole golf course.” [Peck testified that he paid a premium for his property based on its location adjacent to the golf course.] . . .
In January 2006, Lanier Golf Club announced that they planned to close the golf course and to sell the property for a high density development. At the end of 2006, Lanier terminated all memberships in the club. The golf course remained open to the public until September 2007. Lanier then closed the golf course and denied the adjacent landowners access to the golf course property.
Peck filed this lawsuit . . . claiming that [he] had acquired an “easement or an implied covenant” in the golf course. Peck’s suit requested the court to “declare and enforce against [Lanier] or any new owners an implied restriction limiting use of this property to golf course purposes only.”

(Punctuation omitted.) Peck II, supra, 304 Ga. App. at 869-871.

Since there were no existing express restrictions mandating that Lanier’s property be maintained as a golf course,

to prevail on [his] claim, [Peck] needed to show that [he] purchased [his] lot[ ] according to a recorded subdivision plat which had the golf course area designated on it and that [he] paid more for [his] golf course lot[ ]. See Forsyth County v. Martin, 279 Ga. 215, 217 (1) (610 SE2d 512) (2005); Walker v. Duncan, 236 Ga. 331, 332 (223 SE2d 675) (1976); Patterson v. Powell, 257 Ga. App. 336, 337-339 (571 SE2d 400) (2002). Alternatively, [Peck] could establish [his] claim by showing that the developers made oral assurances or representations that the golf course would remain on the property and that [he] relied upon those assurances in deciding to purchase [his] lot[ ]. See Knotts Landing Corp. v. Lathem, 256 Ga. 321, 323-324 (2), (3) (348 SE2d 651) (1986).

(Punctuation omitted.) Peck II, supra, 304 Ga. App. at 871-872 (1). “Limitations on use of land by implication are not favored and must be strictly construed against the person seeking the restriction. The standard of proof of a restrictive covenant by implication is only evidence that is clear and beyond a reasonable doubt.” (Citations and punctuation omitted.) Roth v. Connor, 235 Ga. App. 866, 870 (1) (b) (510 SE2d 550) (1998). Bearing these principles in mind, we address Peck’s claims in turn below.

(a) The “Common Grantor” Method. Georgia jurisprudence recognizes that “[p]arties may . . . take actions from which courts will imply an agreement to restrict the uses allowed upon a tract of land.” (Citation omitted.) Knotts Landing Corp., supra, 256 Ga. at 323 (2). When a common grantor sells lots of land based on a recorded plat showing an easement or referencing an easement in the grantee’s deed, the grantor is estopped from denying the existence of the easement. See, e.g., Westbrook v. Comer, 197 Ga. 433, 438-439 (29 SE2d 574) (1944). Similarly stated,

[i]t is well-established that where a developer sells lots according to a recorded plat, the grantees acquire an easement in any areas set apart for their use. An easement acquired in this manner is considered an express grant, and is an irrevocable property right. The rationale is that the grantees of the property have given consideration for its enhanced value in the increased price of their lots.

(Citations and punctuation omitted.) Walker, supra, 236 Ga. at 332. The Supreme Court of Georgia applied this principle in Forsyth, supra, 279 Ga. at 217 (1), ruling that owners of lakefront property had established an irrevocable easement in the lake based upon evidence that “they purchased their lots according to a subdivision plat which had a lake area designated on it and paid more for their lakefront lots than the purchase price for non-lakefront lots[.]” (Citations and punctuation omitted.)

Relying upon Forsyth, Peck argues that he acquired an irrevocable easement in the golf course since he purchased his lot in accordance with a subdivision plat that had the golf course designated on it, and that he paid more for his lot based on its location on the golf course. Notwithstanding his claim, however, the record does not contain any evidence showing a recorded subdivision plat, as required. Consequently, Peck’s claim of an implied irrevocable easement fails.

To the extent that Peck points to evidence pertaining to other subdivisions apart from his own in Section J of the Canongate on Lanier subdivision, his assertions are unavailing. As we held in Peck II, “the residential developments [surrounding the golf course] arose out of multiple projects by different developers and resulted in different subdivisions with separate sections.” Peck II, supra, 304 Ga. App. at 872 (1). Regardless of whether the residents of the other subdivisions could establish that they acquired an implied easement to the golf course, the pertinent question in this case is whether the evidence supported Peck’s claim that he had an implied easement as alleged. Our resolution of Peck’s claims therefore must focus upon the evidence and circumstances involving Peck’s property sale in the Canongate on Lanier subdivision.

Peck points to a marketing brochure and various maps and surveys as purported support for his claim. Upon reviewing those exhibits, however, we conclude that they do not amount to recorded subdivision plats. The “Preliminary Subdivision Plat of Canongate on Lanier Section J Lots” upon which Peck relies was merely a tentative unapproved plat. In addition, the unrecorded plat did not clearly designate the golf course. The survey that was attached to Peck’s closing documents also failed to clearly designate the golf course and was not a plat of the subdivision development. Although Peck also points to a recorded survey and plat that were prepared for a prior owner of the property adjacent to the golf course, that survey and plat do not depict the residential subdivision development. None of the surveys indicate or would authorize a finding that Lanier’s golf course provided a right of way or was intended to be included as a part of the subdivision property. See Eardley v. McGreevy, 279 Ga. 562, 564 (1) (615 SE2d744) (2005) (holding that plaintiff failed to establish the existence of an implied easement over her neighbor’s property based on an unrecorded plat in a deed merely showing the existence of a drive, but not describing the drive as any type of right-of-way for the plaintiff’s property); De Castro v. Durrell, 295 Ga. App. 194, 201-202 (2) (a) (671 SE2d 244) (2008) (ruling that the plaintiffs could not rely on an unrecorded plat to claim the existence of an implied easement to a soccer field adjoining their subdivision).

The evidence also failed to indicate that Lanier engaged in actions from which a factfinder could conclude that Lanier participated in a plan or agreement to restrict the use of its land. The developer of the Canongate on Lanier subdivision agreed to advise all prospective purchasers that it was “in no way affiliated with . .. the ownership or operation of the [golf course]” and to give written notice that “no membership or use rights of any kind whatsoever in the [golf course] [were] granted by virtue of the purchase of the subject property from [Arasom].” Moreover, when Lanier sold Peck his lot in the subdivision, Peck was advised that his purchase of the property did not entitle him to any membership or right to use the golf course.

Since Peck failed to present evidence establishing the existence of an implied easement based upon a recorded subdivision plat, the trial court did not err in granting summary judgment in favor of Lanier as to this claim. See Eardley, supra, 279 Ga. at 564 (1); De Castro, supra, 295 Ga. App. at 201-202 (2) (a).

(b) The “Oral Assurances”Method. Peck argues, in the alternative, that there was ample evidence of oral assurances given to purchasers that they were buying a golf course lot. See Knotts Landing Corp., 256 Ga. at 323-324 (2), (3). Based upon this principle, Peck could establish his claim by showing that the developer made oral assurances or representations that the golf course would remain on the property, and that he relied upon those assurances in deciding to purchase his lot. Id.

Decided March 8, 2012

Reconsideration denied March 27, 2012

McFarland & McFarland, Robert P. McFarland, for appellant.

Dillard & Galloway, G. Douglas Dillard, Andrea C. Jones, Hasty Pope, Marion T. Pope, Jr., for appellee.

Significantly, Peck testified that he did not seek assurances that the golf course would remain in existence. Peck’s closing documents included an addendum confirming an understanding that the seller was not affiliated with the golf course, and that the purchaser would not receive any right to use the golf course as a result of purchasing a lot. More importantly, Peck’s sales contract explicitly stated that “jn]o representation, promise, or inducement not included in [the] contract shall be binding upon any party hereto.” The contract did not assert any representations regarding the continued existence of the golf course. “Where a purchaser affirms a contract that contains a merger or disclaimer provision, he is estopped from asserting reliance on a representation that is not part of the contract.” (Citation omitted.) Novare Group v. Sarif, 290 Ga. 186, 190 (3) (718 SE2d 304) (2011).

The entire agreement clause operates as a disclaimer, establishing that the written agreement completely and comprehensively represents all the parties’ agreement. [Peck] is, therefore, barred from claiming that he . . . relied on an alleged misrepresentation not contained within the agreement.

(Citations and punctuation omitted.) Griffin v. State Bank of Cochran, 312 Ga. App. 87, 95 (2) (a) (718 SE2d 35) (2011). Since Peck cannot show that he reasonably relied upon any oral assurances regarding the golf course as a matter of law, the trial court’s summary adjudication of this claim was proper.

Judgment affirmed.

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

       This is the third appeal of this case before our Court. See Peck v. Lanier Golf Club, 298 Ga. App. 555 (680 SE2d 595) (2009) (‘Peck I”); Peck v. Lanier Golf Club, 304 Ga. App. 868 (697 SE2d 922) (2010) (‘Peck II ”). The prior appeals pertained to the trial court’s decisions denying class certification pursuant to OCGA § 9-11-23. See Peck I, supra, 298 Ga. App. at 555; Peck II, supra, 304 Ga. App. at 868-869.

       We note that after the trial court entered its order granting Lanier’s motion for summary judgment, Lanier filed a notice that Peck had transferred his interest in his property to a third party. Generally, when a plaintiff’s claims for injunctive relief and declaratory judgment are predicated upon his status as a landowner, the subsequent transfer of his ownership interest would divest him of standing to pursue his claims and render his claims moot. See Goodyear v. Trust Co. Bank, 247 Ga. 281, 284 (1) (276 SE2d 30) (1981). As an exception, however, when “the error is capable of repetition and yet evades review, the appeal will be considered.” (Citation and punctuation omitted.) Collins v. Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998). In the instant appeal, the parties do not contend that the claims under review are moot. To the extent that a decision in this case “would be based on existing facts or rights which affect, if not the immediate parties, an existing class of sufferers,” id. at 122, we shall review the claims presented.

       The original deed conveying the property for the golf course development contained a restriction that the property be used for the operation of a golf course for a period of seven to eight years. That restriction, however, expired by its terms in 1977.

       In this case, the undisputed evidence established that the golf course was not developed as a part of the subdivision. Notably, the evidence showed that the golf course had already been developed and was operating for many years prior to the development of the Canongate on Lanier subdivision. The uncontroverted evidence also established that the golf course and the adjacent residential subdivisions were developed separately by multiple unrelated developers and property owners. The evidence in this regard failed to reflect the existence of a common plan or scheme of development.

       On October 5, 2011, this Court entered orders authorizing the parties to file supplemental briefs. Peck has filed a motion to strike Lanier’s supplemental brief as being untimely filed. Peck’s motion is denied.


author: Blackwell, Judge.

text:
    A11A1519.
    WELLONS, INC. v. LANGBOARD, INC.
    (726 SE2d 673)
   Blackwell, Judge.

Wellons, Inc. and Langboard, Inc. entered into two contracts in which Wellons agreed to design and install a custom energy system for a Langboard facility in Quitman. A Brooks County jury found that Wellons breached both contracts, and it awarded more than $8.4 million to Langboard as damages. Wellons appeals from the judgment entered upon the verdict of the jury, claiming that the trial court erred in three respects. First, Wellons contends that Langboard failed to bring its claim for breach of the design contract soon enough and that the trial court should have awarded summary judgment to Wellons on that claim. Second, Wellons argues that the evidence cannot sustain the award of damages for breach of the installation contract and that the trial court should have entered judgment for Wellons on the installation contract claim or, at the least, should have granted Wellons a new trial on that claim. Finally, Wellons contends that the trial court erred when it admitted certain evidence that is, Wellons says, speculative and irrelevant. We find no merit in these claims of error, and we affirm the judgment below.

1. We first consider the contention that Wellons was entitled to summary judgment on the claim for breach of the design contract because Langboard failed to assert that claim soon enough. The design contract requires that any claim for its breach be brought “within one year after the cause of action occurs . . . .” Before trial, Wellons moved for summary judgment on the design contract, arguing that Langboard waited more than a year after its claim accrued to file its complaint. Wellons explained in the trial court that the claim for breach of the design contract accrued at least by March 2006, when Langboard inquired of Wellons about replacing a super-heater in the system, an inquiry that demonstrates, Wellons said, an awareness of the problems with the system. The trial court denied the motion for summary judgment, and the case proceeded to trial.

We have some doubt about whether we properly can undertake to review the denial of the motion for summary judgment. As a general rule, “[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” Kicklighter v. Woodward, 267 Ga. 157, 162 (4) (476 SE2d 248) (1996) (citation and punctuation omitted). Our Court has recognized a limited exception to this rule in cases in which “the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial,” Smith v. Saulsbury, 286 Ga. App. 322, 323 (1) (a) (649 SE2d 344) (2007) (punctuation omitted), and Wellons argues that this is such a case. But we note that Wellons repeatedly sought at trial to elicit testimony about the time that elapsed after Lang-board discovered problems with the custom energy system, Wellons argued to the jury that Langboard failed to promptly address these problems, and the court charged the jury that “the limitation period... begins to run at the time of the defendant’s last successful repair attempt,” an instruction to which Wellons did not object. Nevertheless, Langboard seems to concede that the limitation issue was not raised at trial, and for that reason, we will assume that we properly can consider the question of summary judgment, notwithstanding our doubts.

The standard for summary judgment is familiar and settled. “Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law.” Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011). “So, to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law.” Id. We review the denial of a motion for summary judgment de novo, Higginbotham v. Knight, 312 Ga. App. 525, 526 (719 SE2d 1) (2011), and we view the evidence in the same way as the trial court, that is, in the light most favorable to the nonmoving party. Saiia Constr. v. Terracon Consultants, 310 Ga. App. 713, 713 (714 SE2d 3) (2011).

So viewed, the record shows that Wellons and Langboard entered into the design contract in October 2002. Pursuant to this contract, Langboard was to pay $13.7 million to Wellons, and Wellons was to design a custom energy system for the Langboard oriented strand board plant in Quitman. The parties agreed that the system would be designed to fulfill three essential purposes. First, the system would generate heat energy sufficient to power the production of oriented strand board. Second, the system would return any exhaust generated in the production process to the furnaces, where any pollutants would be incinerated, so that Langboard would not have to pay for additional pollution control equipment. Finally, the system would produce excess heat sufficient to power a boiler and turbine, which, in turn, would generate electricity that Langboard could use or sell. Wellons undertook to design the custom energy system, and in October 2003, Wellons and Langboard entered into a second contract, which provided for the installation of the system at the Quitman plant.

By June 2005, the system installation was far enough along that Langboard was able to operate the parts of the system designed to power the production of oriented strand board and to incinerate pollutants. But Langboard presented evidence that, from the time it first began to operate the system, the system was unable to meet applicable emissions requirements. And when the portion of the system designed to produce electricity was finally activated in October 2005, Langboard found that it did not produce enough steam to generate electricity as the design contract required.

For several months thereafter, Wellons attempted to repair the system to bring it into compliance with the emissions requirements and to increase its production of steam. By November 2006, the emissions were “under control,” but the system remained unable to produce the required steam. In December 2006, a Wellons engineer spent five days at the Quitman plant to test the capacity of the system following additional repairs. The engineer concluded that he needed additional data to determine what modifications might enable the system to produce the necessary steam. At least through January 2007, Wellons employees remained at the facility, testing the system and attempting to determine why it was not producing steam sufficient to run the turbine and generate electricity. And as late as May 2007, Wellons continued to suggest modifications of the system, including the replacement of a superheater. Wellons apparently thought that, although a new superheater would not increase the amount of steam produced by the boiler, it would increase the thermal energy of the steam that was being produced and thereby improve the performance of the system. In May 2007, Langboard informed Wellons that it was not interested in a replacement superheater because it would not, Langboard had concluded in the meantime, solve the problem of inadequate steam production. Langboard filed its complaint against Wellons in October 2007.

On appeal, Langboard argues that the system was substantially complete at least by October 2005, when Langboard attempted to use the system to generate electricity, relying on our decision in Smith v. Hilltop Pools & Spas, Inc., 306 Ga. App. 881 (703 SE2d 424) (2010). In Hilltop Pools, we said that a claim for breach of a construction contract ordinarily accrues “when construction was sufficiently completed ... so that the owner could occupy the project for the use for which it was intended,” explaining that any defects in the construction usually are ascertainable by that time. 306 Ga. App. at 883 (1). Assuming that the principle of substantial completion applies to a design contract, as opposed to an installation or construction contract, there was evidence in this case, of course, that the system never produced steam sufficient to generate the electricity for which Lang-board had contracted, an essential purpose of the system design. Moreover, there was evidence that Wellons continued to modify its design of the system long after October 2005. For these reasons, whether the system was substantially complete by October 2005 might well have involved genuine issues of disputed fact, which are, of course, not to be resolved on summary judgment and instead present questions for a jury.

But in any event, the theory of substantial completion that Wellons now presses on appeal and the facts on which that theory is based are not the same as the theory and facts that Wellons raised in its motion for summary judgment below. In the trial court, Wellons pointed to March 2006 as the date by which a claim for breach of the design contract had accrued, and its arguments below seem to have been more about the actual discovery of defects in the design than about the date of substantial completion. Langboard argues that Wellons waived its argument about “substantial completion” by failing to raise that theory, and the facts that would support it, on its motion for summary judgment in the court below. We agree.

Appellate courts do not consider whether summary judgment should have been granted for a reason not raised below because, if they did, it “would be contrary to the line of cases holding [that a party] must stand or fall upon the position taken in the trial court.” Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (citation and punctuation omitted). It seems clear to us that Wellons did not, in fact, argue below that the design contract claim accrued upon substantial completion or that substantial completion occurred in October 2005. We are unwilling to say that the trial court erred when it failed to consider, in the context of a motion for summary judgment, a legal theory that no lawyer articulated and facts to which no lawyer pointed. For these reasons, we see no error in the denial of the motion for summary judgment. See, e.g., Assn. Svcs., Inc. v. Smith, 249 Ga. App. 629, 632 (1) (549 SE2d 454) (2001) (“[B] ecause ASI did not raise this argument in its motion for summary judgment, it is deemed waived.”).

2. We next consider the contention that the evidence adduced at trial does not sustain a finding that Wellons breached the installation contract, much less a finding that any such breach caused Langboard to sustain $5 million in damages, the approximate amount that the jury awarded to Langboard on its installation contract claim. In short, Wellons claims that the evidence shows that any problems with the system were a result of its design, not its installation, and Wellons argues that, even if there were installation problems, the damages attributable to any installation problems are far less than the amount awarded by the jury. For these reasons, Wellons contends, it was entitled to a judgment notwithstanding the verdict or, at the least, a new trial on the installation contract claim. When we review the denial of a motion for new trial or judgment notwithstanding the verdict, we must affirm the denial if there is any evidence to support the verdict. See First Southern Bank v. C & F Svcs., 290 Ga. App. 304, 306 (2) (659 SE2d 707) (2008). We find such evidence in this case.

The jury awarded $5,015,764 to Langboard on its claim for breach of the installation contract. Langboard presented evidence at trial of several elements of damage that were a result, the jury properly could have found, of improper installation. For instance, the jury heard evidence that Wellons installed carbon steel nuts in a portion of the energy system in which its design called for alloy materials and that the carbon steel nuts disintegrated when exposed to extremely high temperatures. The jury also heard evidence that Wellons misaligned the expansion joints in the primary air heater of the system, that this misalignment caused the system to leak thermal energy, and that the misalignment created enough force to shear bolts off the system, which, in turn, exacerbated the leakage of thermal energy. The evidence shows that the cost of repairing the nuts and bolts was approximately $140,000, and the cost of repairing the expansion joints was approximately $825,000. Evidence also was presented at trial from which a jury could have found that the leakage of thermal energy prevented the system from achieving a consistent level of heat, which, in turn, put additional thermal stress upon the system. And the additional thermal stress, a jury might properly have found, likely contributed to other problems that the system experienced, including the failure of tube sheets. Langboard presented evidence that put the cost of replacing the cracked tube sheets between $3 million and $4 million. The range of damages proved by this evidence alone is nearly enough to justify the award of approximately $5 million for breach of the installation contract.

There also is evidence of some other elements of damage, including that the installation contract required that acceptance “shall be achieved no later than August 2004[,]” but Langboard was not able to begin operating even the portion of the system designed to power the production of oriented strand board until June 2005. From that evidence, a jury might have found some damage for delay. Moreover, a jury properly could have found from the evidence that the leakage of thermal energy was never fully remedied, that this problem imposed additional, ongoing maintenance costs upon Langboard, and more importantly, that this problem contributed to the inability of the system to produce the amount of steam required to generate electricity. We cannot determine precisely how the jury calculated the damages that it awarded to Langboard for breach of the installation contract, but “[o]ur role is not to enter the jury box. The jury made its award in its enlightened conscience and based upon the evidence presented. Thus, as the trial court declined to disturb the jury’s verdict, we likewise decline to find error.” Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 612 (4) (693 SE2d 873) (2010) (citation and punctuation omitted). The damages awarded were within the range, we think, that the evidence authorized, and for that reason, we affirm the denial of the motion for judgment notwithstanding the verdict or for a new trial.

3. Finally, we consider the contention that the trial court erred when it admitted evidence that is, Wellons says, speculative and irrelevant. “Whether to admit evidence is a matter resting in the trial court’s sound discretion,” Boring v. State, 289 Ga. 429, 433 (2) (711 SE2d 634) (2011), and we will reverse a decision to admit evidence only upon a showing that this discretion was abused. Morrison v. Morrison, 282 Ga. 866, 867 (2) (655 SE2d 571) (2008). We see no abuse of discretion here.

(a) First, Wellons complains that the evidence of the cost to repair the failed tube sheets was speculative. At trial, a lay witness, who has worked in the wood products industry since 1973 and runs a company that designs, constructs, and operates combustion energy systems, put this cost between $3 million and $4 million. This witness had been hired by Langboard to conduct inspections of its custom energy system, and his company made recommendations to Langboard about how it might repair the system. Wellons objected that the testimony of the witness about the cost of repairing the tube sheets was “just a guess.”

We have said before that an expert opinion that is “wholly speculative” has no probative value, Hawkins v. OB-GYN Assocs., 290 Ga. App. 892, 896 (2) (b) (660 SE2d 835) (2008), and we have explained that damages cannot be established by “speculation, conjecture and guesswork.” Song v. Brown, 255 Ga. App. 562, 564 (565 SE2d 884) (2002) (citation and punctuation omitted). But evidence that a cost cannot be fixed precisely but falls within a certain range is not necessarily speculative or “just a guess.” A witness may know with certainty that the cost, in fact, falls within that range, but because of factors unknown to him or perhaps unknowable, he cannot more precisely fix the cost. “[T]he ability to estimate damages to a reasonable certainty is all that is requiredf,] and mere difficulty in

fixing the exact amount will not be an obstacle to the award.” Page v. Braddy, 255 Ga. App. 124, 126 (564 SE2d 538) (2002) (citation and punctuation omitted); see also Dossie v. Sherwood, 308 Ga. App. 185, 188 (707 SE2d 131) (2011) (“(t)he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.”) (citation and punctuation omitted). It appears that the witness who estimated the costs of repairing the tube sheets had some basis for his estimate, and his testimony was not so uncertain, we think, as to prevent the jury from fixing the amount of damages with reasonable certainty. See John Thurmond & Assocs. v. Kennedy, 284 Ga. 469, 473 (2) (668 SE2d 666) (2008). Moreover, as the trial court noted, that the witness was unable to fix the cost more precisely was something that Wellons could explore on cross-examination. For all these reasons, we conclude that the trial court did not abuse its discretion when it permitted the witness to testify about the cost of replacing the failed tube sheets, even though the witness was only able to provide a range of the amount it would cost to replace them. See generally Glen Oak v. Henderson, 258 Ga. 455, 459 (2) (g) (369 SE2d 736) (1988) (“[A] jury can award what it pleases, within the range of the evidence”).

(b) Wellons also claims that the trial court erred when it failed to exclude evidence about the cost of adding an additional boiler to the system, approximately $12 million. This evidence was presented through testimony of the same lay witness who testified about the cost of replacing the tube sheets, and it related to a proposal submitted by the witness to Langboard in October 2008. That proposal suggested that the inadequate production of steam could be remedied by use of a stand-alone boiler, which would produce additional steam to power the existing turbine generator. The proposal itself was admitted into evidence over objection. Wellons claims on appeal that the cost of an additional boiler was irrelevant because the agreements between Wellons and Langboard did not provide for such a boiler, so that an additional boiler would put Langboard in a better position than it would have been had Wellons fully performed under the contracts.

While Wellons is correct that “damages are intended to place an injured party, as nearly as possible, in the same position they would have been if the injury had never occurred[,]” it also is true that, where a breach of contract results from defective construction, an injured party may recover damages based upon “the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value ... .” John Thurmond & Assocs., 284 Ga. at 469-470 (1) (citation and punctuation omitted). Here, a rational jury could have found that the design contract required the energy system to produce an amount certain of steam and that the only way to achieve that result was to install an additional boiler. Even if the cost of an additional boiler made the costs of repair disproportionate to the loss in value of the system — a finding that the evidence may permit, but does not seem to require — that certain costs are not precisely the measure of damages does not mean that evidence of those costs is irrelevant to the existence and extent of damages. We have said before that juries are to be given “wide latitude in determining the amount of damages to be awarded based upon the unique facts of each case.” Turner Broadcasting, 303 Ga. App. at 612 (4) (citation and punctuation omitted). The court below did not abuse its discretion, we think, when it allowed Lang-board to introduce evidence of the cost of the additional boiler, especially considering that it also allowed Wellons to provide evidence that the additional boiler would place Langboard in a better position than it would have been had the agreements been fully performed. We also note that, in any event, the jury did not award the full cost of an additional boiler to Langboard, so any harm in the admission of this evidence is not apparent. Compare Morehouse College v. McGaha, 277 Ga. App. 529, 534-535 (2) (627 SE2d 39) (2005) (verdict was so flagrantly excessive that it must have resulted from a mistake).

Decided March 27, 2012

Alston & Bird, Jeffrey J. Swart, Louis B. Park, for appellant.

Hall, Booth, Smith & Slover, Jack G. Slover, Jr., Thomas M. Burke, Jr., Bryan, Cave, Powell & Goldstein, C. Scott Greene, Curtis J. Romig, Matthew J. Pearce, Eric P. Schroeder, Dover, Miller, Stone & Karras, Jackson R. Langdale, Vann K. Parrott, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       Langboard presented evidence that, by the time Wellons offered to replace the super-heater, “it had become obvious” to Langboard that the system was not large enough to produce the amount of steam necessary to produce electricity and that changes to the superheater would be “kind of like rearranging the deck chairs on the Titanic.”

       Wellons failed to include a transcript of the hearing on its motion for summary judgment in the record on appeal. But Wellons does not contend that it made any arguments about substantial completion at that hearing, and our review of the motion itself convinces us that Wellons never asked the court below to consider when the system was substantially completed.

       In a footnote of its brief on appeal, Wellons says that, “[t]o the extent the Court allows Langboard’s recovery under the [design contract], it must be offset by the retainage owed by Langboard to Wellons ....” This apparently refers to a counterclaim asserted below, in which Wellons alleged that Langboard improperly withheld funds owed to Wellons as retainage under the design contract. But the jury did not award Wellons anything on its counterclaim, and Wellons says nothing in its enumeration of errors about the judgment in favor of Langboard on the counterclaim. Consequently, we do not consider whether the award of damages for breach of the design contract should be reduced by the amount of any retainage. See Felix v. State, 271 Ga. 534, 539, n. 6 (523 SE2d 1) (1999) (“an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors”) (citation omitted).

       In response to this contention, Langboard argues, among other things, that the installation contract contains specifications for the performance of the system that are more stringent than those in the design contract and independently enforceable. In addressing this contention, we do not rely upon this argument and decline to find that the installation contract, in fact, contains such additional performance specifications.

       In its reply brief, Wellons also claims that the testimony should have been excluded because it violated the terms of the trial court’s order granting Wellons’s motion in limine that “prohibited the witness from offering expert opinion testimony concerning the design of the energy system, its operation or its monetary value or other such opinions or conclusions.” But the witness at issue did not provide expert testimony about such matters. Instead, the witness gave lay testimony about the proposal he submitted to provide a solution to the problems that Langboard was experiencing with the energy system.