text:
    A10A1499.
    GROVES et al. v. THE STATE.
    (703 SE2d 371)
   Doyle, Judge.

In this interlocutory appeal, Curtis Groves and David Smith challenge the denial of their motions to suppress evidence obtained by an officer during a traffic stop. Because the officer executed the traffic stop without the suspicion required to justify such a stop under the Fourth Amendment of the United States Constitution, we reverse.

On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court’s judgment. The credibility of witnesses and the weight accorded their testimony rest with the trier of fact. Thus, the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Where the evidence is uncontroverted and there is no issue as to witness credibility, however, we review de novo the trial court’s application of the law to the undisputed facts.

In this case, the relevant facts are not in dispute. The record shows that an officer on patrol spotted a lone sedan parked at the edge of an otherwise empty parking lot at a truck plaza. The officer pulled his marked patrol car behind the car and noticed that it was occupied by a passenger, Smith, and a driver, Groves, who was leaning briefly into the passenger side. Neither occupant noticed the officer, and approximately one and a half minutes elapsed as the officer called in the tag number. Groves then looked up, noticed the patrol car in his rear view mirror, put his car into gear, and “continued to drive on.” The officer immediately activated his emergency lights and executed a traffic stop of the vehicle.

After the car stopped, the officer spoke to the occupants, noticed the smell of alcohol coming from Groves, obtained consent to search the car, and discovered what turned out to be crushed oxycodone packaged in cellophane in the car’s glove box. Based on the contraband, Groves and Smith were arrested and charged with one count of possession of oxycodone in violation of the Georgia Controlled Substances Act. The two defendants unsuccessfully moved to suppress the evidence from the stop, and this Court granted their application for interlocutory appeal.

Groves and Smith argue that the trial court erred by concluding that the officer’s initial traffic stop was justified and by ruling that the evidence obtained during the stop was therefore admissible. We agree.

According to Terry v. Ohio, police-citizen encounters are generally categorized into three tiers: consensual encounters; brief investigatory stops, which require reasonable suspicion; and arrests that must be supported by probable cause. In a first-tier encounter, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. ... So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.

As an initial matter, we note that “[t]he actions of an officer approaching a stopped vehicle, requesting to see a driver’s license, and inquiring about possible criminal or suspicious activity clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop” implicating Fourth Amendment concerns. Thus, before Groves pulled away, while the officer merely sat in his patrol car behind Groves’s stopped vehicle, the encounter had not yet risen beyond a consensual, first-tier encounter requiring no suspicion. Therefore, Groves was free to ignore the officer and leave if he chose.

However, after Groves began to pull away, the officer activated his emergency lights, executed a traffic stop, and asked Groves for his identification. This escalated the encounter to a second-tier Terry stop, because the officer’s intention was undisputably to stop Groves from driving away.

During a second-tier encounter, ... a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. To stop a citizen, the officer must possess more than a subjective, unparticularized suspicion or hunch. The officer’s action must be justified by specific and articu-lable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.

Here, the officer testified at the suppression hearing that the car seemed “extremely out of place” in the empty truck plaza parking lot, but he had no other reason to suspect any criminal activity. Nevertheless, despite having no “specific and articulable facts” supporting a suspicion of criminal activity, the officer conducted “a traffic stop as soon as the driver put the vehicle into gear and went to leave the scene.” Such stops are unauthorized. That the car was “out of place” perhaps gave rise to a generalized suspicion or hunch, but in the absence of other circumstances, Groves’s mere presence in an empty truck plaza parking lot was not sufficient to warrant a traffic stop.

Decided November 15, 2010.

Catherine S. Bernard, for appellants.

This evidence simply did not constitute an objective manifestation that [Groves and Smith were], or [were] about to be, engaged in criminal activity sufficient to warrant the intrusion of a traffic stop. While such behavior might justify an officer in closely observing the individual[s] engaged in that behavior, it is not alone sufficient to indicate that the individuals] [are] or might be engaged in illegal activity so as to provide a reasonable, articulable suspicion to stop [those] individual[s].

Moreover, Groves’s actions prior to the stop — putting the car into gear and proceeding on his way — were not sufficient to justify the stop, because at that point the encounter was a consensual, first-tier encounter, and Groves was entitled “to exercise his right to ignore the police and to leave. Indeed, a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.” “Such conduct may not provide the basis for elevating the encounter to a second-tier Terry stop.”

In light of our conclusion, the oxycodone at issue in this case was inadmissible because it was discovered pursuant to consent that was the product of an unauthorized traffic stop. Likewise, the smell of alcohol about Groves’s person did not authorize further investigation or detention because it was observed during the unauthorized traffic stop. Accordingly, we reverse the trial court’s denial of the defendants’ motions to suppress.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

L. Craig Fraser, District Attorney, LaShonda C. Harris, Assistant District Attorney, for appellee.

       (Punctuation and footnotes omitted.) Sanders v. State, 247 Ga. App. 170-171 (543 SE2d 452) (2000).

       OCGA § 16-13-30 (a).

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Citation and punctuation omitted.) Black v. State, 281 Ga. App. 40, 43 (1) (635 SE2d 568) (2006).

       (Punctuation omitted.) Brittian v. State, 257 Ga. App. 729, 731 (572 SE2d 76) (2002).

       See Black, 281 Ga. App. at 43 (1).

       See O’Neal v. State, 273 Ga. App. 688, 690 (616 SE2d 479) (2005) (second tier because an officer pulled next to a parked car and activated blue lights); Peters v. State, 242 Ga. App. 816, 817(1) (531 SE2d 386) (2000) (officer’s command to stop created a second-tier encounter); McKinley v. State, 213 Ga. App. 738, 739 (445 SE2d 828) (1994) (second tier because an officer pulled behind a parked van, activated blue lights, and told the driver to step back in his car). Compare Darwicki v. State, 291 Ga. App. 239, 240 (1) (661 SE2d 859) (2008) (pulling behind stopped vehicle in its lane of travel with blue lights activated was not a traffic stop because given the late hour and the hazard created by vehicles on a dark roadway, the blue lights would not create the impression that driver could not leave the scene) (physical precedent only).

       There is no evidence that Groves’s manner of driving was overly abrupt or amounted to flight from the officer. Compare Sharp v. State, 275 Ga. App. 487, 488 (1) (621 SE2d 508) (2005) (running from scene of gunfire at sight of officers - across a fence and into nearby woods - was sufficient to give an articulable suspicion of illegal activity).

       (Citations and punctuation omitted; emphasis supplied.) Black, 281 Ga. App. at 43 (1).

       See id.

       See Pritchard v. State, 300 Ga. App. 14, 16 (684 SE2d 88) (2009) (parking in front of a house previously raided by police did not justify second-tier stop); Black, 281 Ga. App. at 46 (1) (mere presence at a house under surveillance for drug activity did not give rise to reasonable articulable suspicion). See also Peters, 242 Ga. App. at 817 (1) (hurrying to car from known drug location did not justify second-tier stop).

        Pritchard, 300 Ga. App. at 16.

       (Citation and punctuation omitted.) Black, 281 Ga. App. at 44 (1). See also In re J. M., 276 Ga. 88-89 (1) (575 SE2d 441) (2003) (Georgia’s constitution provides citizens a “fundamental constitutional right to ‘be let alone,’ provided they are not interfering with the rights of other individuals or of the public.”).

        Black, 281 Ga. App. at 46 (1).

       See id. at 48 (1); Pledger v. State, 257 Ga. App. 794, 797 (572 SE2d 348) (2002).

       See id.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A10A1525.
    FREEMAN v. THE STATE.
    (703 SE2d 368)
   BARNES, Presiding Judge.

Quentin Demond Freeman appeals his conviction for armed robbery, contending that the trial court erred in denying his motion to suppress identification evidence, and in denying his motion for a directed verdict. Upon review, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Hall v. State, 282 Ga. 294, 297 (3) (647 SE2d 585) (2007). We do not weigh the evidence or determine the credibility of witnesses, but only determine if the evidence is sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.

So viewed, the evidence shows that on July 30, 2008 between 11:15 and 11:30 p.m., the clerk at the Texaco gas station on Jodeco Road in Henry County locked the store and had taken the bag with the night deposit to his car when a man approached him and demanded the money. The robber pointed a gun at the clerk and took the money and also the clerk’s cell phone. When the robber ran away, the clerk went inside the store and called 911. The clerk described the robber to the 911 operator as wearing “black pant[s] and black shoes . . . 5T0", 5T1" . . . black, but not dark black or light skin.” The clerk said the robber also had a black scarf on his head and a beard and sideburns. He said that the robbery occurred near the store lights so he was able to get a clear look at the robber.

Police arrived within five to ten minutes and questioned the victim. An officer responding to the BOLO was “flagged down” by two separate individuals who were driving in the area of the robbery. The officer testified that “based upon the conversation [and] description they gave me,” he located the suspect, later identified as Freeman, on a nearby street behind the Texaco station. The officer testified that Freeman was wearing a “[wjhite tank top, black — black sweat pants, jogging pants, and black tennis shoes,” and was “breathing heavily and sweating.” The officer at the station was notified that a suspect was being detained, and he drove the victim approximately “one half to three-fourths of a mile” to where Freeman was being detained for a showup identification. When they arrived, Freeman was taken from the rear seat of a waiting squad car, and the officer shined his headlights on Freeman. The officer testified that he activated his “take-down light” located on the roof of his un-marked car as well.

The victim positively identified Freeman as the robber, but told officers that on a scale of one to ten, he would rank his level of certainty about Freeman’s identity an eight. He testified that “I told them his face is definitely 100%, but only the two differences I see before and now is T-shirt and the head scarf.” The victim said that Freeman had a black scarf on his head and was wearing a black T-shirt when he robbed him. He was certain, however, about Freeman’s “face and beard.”

1. Freeman contends that the evidence was insufficient to sustain his conviction for armed robbery. “[T]he testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Here the victim’s testimony alone is sufficient to authorize the jury’s verdict of guilty beyond a reasonable doubt. Smith v. State, 246 Ga. App. 191, 192 (1) (539 SE2d 881) (2000). Moreover, “[w]e do not determine the credibility of eyewitness identification testimony. Rather ‘the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.’ ” Jones v. State, 214 Ga. App. 788 (449 SE2d 330) (1994).

Thus, the evidence here was sufficient to sustain Freeman’s conviction for armed robbery.

2. Freeman argues that the trial court erred in failing to suppress the identification evidence at trial. He claims that the one-on-one showup conducted by police was impermissibly suggestive, and created a substantial likelihood of misidentification. We disagree.

When ruling on a motion to suppress, the trial court sits as the trier of facts, and its findings regarding them are not disturbed on appeal if there is any evidence to support them; the trial court’s decisions with regard to questions of fact and credibility must be accepted unless clearly erroneous, and a reviewing court construes the evidence most favorably to the trial court’s findings.

(Punctuation omitted.) Whitmore v. State, 289 Ga. App. 107, 107 (657 SE2d 1) (2008).

Testimony concerning a pre-trial identification of a defendant should be suppressed if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “this is our suspect.”

Decided November 15, 2010.

Jennifer L. Lewis, for appellant.

(Punctuation and footnotes omitted.) Brooks v. State, 285 Ga. 246, 248-249 (3) (674 SE2d 871) (2009). Although one-on-one showups are inherently suggestive, an identification resulting from a showup “need not be excluded as long as under all the circumstances the identification was reliable notwithstanding any suggestive procedure.” (Punctuation omitted.) Fitzgerald v. State, 279 Ga. App. 67, 68 (1) (630 SE2d 598) (2006). The key issue is whether a substantial likelihood of irreparable misidentification exists. Id. In evaluating this likelihood, this Court considers four factors: (1) the witness’ opportunity to view the criminal during the crime; (2) the witness’ degree of attention; (3) the accuracy of any prior description; and (4) the length of time between the crime and the showup. Id.

Freeman argues that the showup identification was impermis-sibly suggestive because when the victim identified him, he had been sitting in the back seat of the officer’s patrol vehicle, and was taken out of the car with lights shining on him. However, “[t]he mere fact that [Freeman was] in a police car when [he was] identified does not taint the identification[ ].” Young v. State, 272 Ga. App. 304, 311 (4) (a) (612 SE2d 118) (2005).

Here, the victim observed Freeman from “two or three feet away” for several minutes while he was being robbed, and although the incident occurred at night, the area of the parking lot where the robbery occurred was well lit. Furthermore, the victim identified Freeman less than 30 minutes after the incident occurred, and expressed a high degree of certainty that Freeman was the man who robbed him (despite the difference in the T-shirt color).

Given the totality of these circumstances, the trial court was authorized to find that no substantial likelihood of irreparable misidentification existed. Accordingly, it properly denied Freeman’s motion to suppress. See Crawford v. State, 297 Ga. App. 187, 191 (2) (676 SE2d 843) (2009).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Thomas L. Williams, Assistant District Attorneys, for appellee.


author: PHIPPS, Presiding Judge.

text:
    A10A1064.
    A10A1065.
    INTERNATIONAL GREETINGS USA, INC. v. CAMMACK. INTERNATIONAL GREETINGS USA, INC. v. SIGRETTO.
    (703 SE2d 386)
   PHIPPS, Presiding Judge.

In January 2009, International Greetings USA, Inc. brought actions against F. Scott Cammack and Curtis Sigretto in the State Court of DeKalb County, alleging that they had breached promissory notes. Cammack and Sigretto moved to dismiss under Georgia’s forum non conveniens statute, OCGA § 9-10-31.1, asserting that the suits would more properly be heard as part of an action that Cammack and Sigretto, among others, brought against International Greetings and others in Kentucky in March 2009. The trial court granted the motions, and International Greetings filed these appeals, arguing that its actions were properly brought in Georgia pursuant to forum selection clauses in the promissory notes and thus should not have been dismissed. For the following reasons, we find that the language of the forum selection clauses precluded Cammack and Sigretto from seeking to dismiss the cases based on the doctrine of forum non conveniens, and thus the trial court erred in making a determination under the forum non conveniens statute and dismissing the cases on that ground. Accordingly, we reverse.

The record shows that in 2008, Cammack and Sigretto each signed, as “Maker,” a promissory note in favor of International Greetings, as “Payee,” that contained the following forum selection clause, emphasized by the use of bold type and capital and small capital letters:

Any controversy or claim arising under or relating to this Note or Maker’s relationship with Payee, shall be brought, exclusively, in the state courts located in and for DeKalb County, Georgia or the United States District Court for the Northern District of Georgia, Atlanta Division. Each of Payee and Maker consents and submits to the exclusive personal jurisdiction of and venue in such courts and waives any defenses or claims to the contrary, including but not limited to, lack of jurisdiction or improper venue.

In granting Cammack’s and Sigretto’s motions to dismiss the actions, the trial court first determined that, although the parties had agreed on Georgia as the forum for suits on the notes, the court could still" conduct a forum non conveniens analysis under OCGA § 9-10-31.1. That Code section provides, in pertinent part, that “[i]f a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state . . ., the court shall dismiss the claim or action.” It further provides that “[i]n determining whether to grant a motion to dismiss an action . . . under the doctrine of forum non conveniens, the court shall give consideration to [seven enumerated] factors.” After deciding that OCGA § 9-10-31.1 applied, the court then weighed the factors set forth in that Code section to determine that dismissal was warranted based on the doctrine of forum non conveniens.

In Georgia, a forum selection clause is “prima facie valid and should be enforced unless the opposing party shows that enforcement would be unreasonable under the circumstances.”

To invalidate such a clause, the opposing party must show that trial in the chosen forum will be so inconvenient that he will, for all practical purposes, be deprived of his day in court. A freely negotiated agreement should be upheld absent a compelling reason such as fraud, undue influence, or overweening bargaining power.

Cammack and Sigretto neither argued nor made a showing that the forum selection clauses in their promissory notes were unenforceable under this standard. To the contrary, they concede that they have not challenged the clauses’ validity. And the trial court did not make a finding that the forum selection clauses were unenforceable under Georgia law. Thus, the clauses’ enforceability is not an issue on appeal.

The forum selection clauses each included a provision in which Cammack and Sigretto, after agreeing to litigate any controversy or claim arising under or relating to the notes exclusively in certain Georgia courts and submitting to those courts’ jurisdiction and venue, expressly waived “any defenses or claims to the contrary.” Cammack and Sigretto argue that this waiver did not encompass claims of forum non conveniens under OCGA § 9-10-31.1. The plain and unambiguous language of this provision shows otherwise.

“It is general contract law in Georgia that parties are free to contract about any subject matter, on any terms, unless prohibited by statute or public policy, and injury to the public interest clearly appears.” This includes the freedom to waive their rights created by statute. OCGA § 9-10-31.1 was in existence when the parties signed the promissory notes in 2008. That statute provided for the forum non conveniens determination to occur “on written motion of a party.” It did not prohibit contracting parties from waiving their option of moving for transfer or dismissal under the statute. Because Cammack and Sigretto agreed in their promissory notes to waive any claims contrary to the provisions of the forum selection clauses, they waived their ability to seek such a determination under the statute.

Cammack and Sigretto argue that, notwithstanding the forum selection clauses, the trial court was authorized to entertain their claim of forum non conveniens and conduct the statutory analysis. They cite the United States Supreme Court’s decision in Stewart Organization v. Ricoh Corp., a case involving the application of 28 USC § 1404 (a), a federal change of venue statute. In Stewart Organization, the Supreme Court held that a contract’s forum selection clause was not dispositive of the proper venue for an action, although the clause was a significant factor in determining whether a change of venue would be warranted under the federal statute.

We are not convinced to apply Stewart Organization to this case. The Court in Stewart Organization perceived a conflict between the federal statute allowing under certain circumstances the transfer of a case between two federal district courts, and state law governing the enforcement of parties’ contractual choice of forum. The Court noted that Stewart Organization was “not a case in which state and federal rules can exist side by side[,] each controlling its own intended sphere of coverage without conflict.” In resolving that conflict, the Court determined that the federal transfer of venue statute was a valid exercise of Congress’s authority under the Constitution; consequently, the federal statute (rather than state law) governed the federal district court’s decision whether to give effect to the forum selection terms of the contract. Moreover, the federal venue statute at issue in Stewart Organization did not include language indicating that the statutory analysis would occur on the motion of a party; nor did that case address whether the parties could, through a waiver clause, be precluded from asking the district court to make such determination. In Stewart Organization, a party sought transfer pursuant to the terms of a forum selection clause, after the case was filed in a forum other than that designated in the contract.

In contrast to Stewart Organization, this case involves no conflict between federal and state law, and thus it does not involve the supremacy principles under which the Stewart Organization Court decided that the federal venue statute’s analysis governed whether to give effect to the terms of that contract. And, unlike in Stewart Organization, the court here conducted its forum non conveniens analysis in response to an action by the parties that they were prohibited by contract from taking.

Where parties are “free to draft their own contracts and set agreed-upon terms[,] courts are not at liberty to revise those terms.” Accordingly, the trial court erred when it granted relief to Cammack and Sigretto that by the plain and unambiguous terms of their contracts they were not allowed to pursue.

Judgment reversed.

Miller, C. J., and Johnson, J., concur.

Decided November 16, 2010.

Friend, Hudak & Harris, Michael S. Reeves, Benjamin M. Byrd, for appellant.

Parker, Hudson, Rainer & Dobbs, David B. Darden, Angelica Saavedra, for appellee.

       Because our ruling herein turns on a question of contract interpretation — whether the plain and unambiguous language of the parties’ agreements precluded Cammack and Sigretto from seeking dismissal under the forum non conveniens statute — we apply a de novo standard of review. See Reynolds Properties v. Bickelmann, 300 Ga. App. 484, 487 (685 SE2d 450) (2009) (contract construction is a question of law for the court that is subject to de novo review).

       OCGA §9-10-31.1 (a).

       Id.

        The Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795, 797 (1) (b) (692 SE2d 61) (2010) (citation and punctuation omitted) (noting that Georgia has adopted the analysis regarding enforcement of forum selection clauses set forth by the United States Supreme Court in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (92 SC 1907, 32 LE2d 513) (1972)).

        The Houseboat Store, supra (citations omitted).

       (Emphasis supplied.)

        Jones v. Jones, 280 Ga. 712, 714 (1) (632 SE2d 121) (2006) (citation and punctuation omitted).

       See Daniel v. Daniel, 250 Ga. 849, 851 (2) (301 SE2d 643) (1983).

       OCGA § 9-10-31.1 was enacted as part of the Tort Reform Act of 2005 and became effective on February 16, 2005. See EHCA Cartersville v. Turner, 280 Ga. 333 (626 SE2d 482) (2006).

       OCGA §9-10-31.1 (a).

       See generally Holmes v. Clear Channel Outdoor, 298 Ga. App. 178, 184 (3) (679 SE2d 745) (2009) (declining to interpret statute to impair freedom-of-contract right unless such impairment is specifically expressed or necessarily implied in statute).

       487 U. S. 22 (108 SC 2239, 101 LE2d 22) (1988).

       Id. at 29-31 (III) (B).

       Id. at 30-31 (III) (B).

       Id. at 31 (citation and punctuation omitted).

       See id. at 31-32 (III) (B).

       See 28 USC § 1404 (a) (“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”).

       See generally Stewart Organization, supra.

       See id. at 24.

        Atkinson v. Cook, 271 Ga. 57, 58 (518 SE2d 413) (1999).

       See id. See generally Coleman v. Retina Consultants, 286 Ga. 317, 322 (2) (687 SE2d 457) (2009) (court erred in issuing ruling contrary to terms of parties’ agreement).


text:
    A10A1137.
    THE MARTHA K. WAYT TRUST et al. v. CITY OF CUMMING.
    (702 SE2d 915)
   PHIPPS, Presiding Judge.

On April 13, 2006, the City of Cumming (the City) instituted proceedings to condemn a portion of real property owned by the Martha K. Wayt Trust and the Josephine W. Williams Trust (collectively, the Trusts). A jury trial was held to determine the just and adequate compensation due the Trusts for the partial taking. The Trusts appeal from the judgment entered on the jury verdict, arguing that the court erred in ruling that they had not established a sufficient foundation for their representative, John A. Wayt III, to testify to his opinion on subjects that they contend related to the market value of the condemned property and the consequential damages to the remaining property. Specifically, the Trusts argue that Wayt should have been allowed to give his opinion as to: (1) the cost to construct a bridge to provide access to the remaining property; and (2) the value of stream mitigation credits that they assert they would have sold in connection with the condemned property. For the following reasons, we affirm.

1. The Trusts sought to introduce, as a component of consequential damage to their remaining property, evidence of the cost to build a bridge over a waterway known as Big Creek to cure the Trusts’ lost usage, after the condemnation, of a ford over that waterway. To this end, counsel for the Trusts proffered the following testimony of Wayt: that he had been informed by Forsyth County officials that the Trusts could not construct another ford for access across Big Creek, but instead would need to build a bridge to certain specifications, that the county officials referred him to a company to build the bridge, and that he obtained an estimate from that company. Counsel argued that, “[i]n essence, [ Wayt would] be giving the estimate of the company that he was referred to by the County.”

The Trusts did not proffer that Wayt obtained any other estimates concerning the cost to construct the bridge, spoke to anyone else about that cost, or possessed or sought to obtain any other information about that cost or about the accuracy of the estimate he had received. The court found that the proffer did not demonstrate a sufficient foundation for Wayt to give a lay opinion on the cost to build the bridge, because it did not show that Wayt had a sufficient opportunity to form a correct opinion on the issue. Consequently, the court ruled inadmissible Wayt’s testimony concerning the estimate.

OCGA § 24-9-66 authorizes the admission of lay opinion testimony on the issue of market value, if the witness has had an opportunity for forming a correct opinion thereon. We have held that the opinion of a layperson as to value may be based on hearsay, and that this fact goes to the weight of the opinion rather than its admissibility. A witness seeking to give an opinion as to value, however, must demonstrate that the opinion is his or her own, and not merely a recitation of the opinion of another. The question of whether a witness has established sufficient opportunity for forming a correct opinion on value or has stated a proper basis for expressing that opinion is within the trial court’s discretion.

Here, the proffer made by the Trusts did not demonstrate a basis upon which Wayt could have formed his own opinion on the cost to build the bridge apart from the single estimate he received, nor did it demonstrate a basis upon which Wayt could have assessed the correctness of that estimate. Under these circumstances, we find no abuse of discretion in the court’s exclusion, for insufficient foundation, of Wayt’s opinion testimony concerning the cost to build the bridge.

Decisions cited by the Trusts in which we affirmed the trial court’s determination that a sufficient foundation had been presented upon which to admit opinion evidence on value do not require a different conclusion. And we find inapposite decisions cited by the Trusts in which the sufficiency of the foundation for an opinion on value was not raised or discussed.

2. The Trusts sought to introduce, as a component of the market value of the condemned property, evidence concerning the value of stream mitigation credits that they intended to sell in connection with the condemned property. The Trusts introduced evidence that, at the time of the taking in April 2006, they were in the process of creating on the property a stream mitigation bank, for which they anticipated being awarded stream mitigation credits that could be sold to others. The court did not allow Wayt to testify to his opinion of the value of those credits in 2006, however, on the ground that it had not been shown that he had sufficient opportunity for forming a correct opinion thereon. Pretermitting whether the court abused its discretion in determining that there was an insufficient foundation for Wayt’s opinion on the value of stream mitigation credits, we find no ground for reversal.

The sole question presented in a condemnation proceeding is the just and adequate compensation due the condemnee, which is determined by the market value of the condemned property at the time of the taking and the consequential damage to the remaining property.

Decided November 16, 2010.

The fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation. It must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. Even where a different use is probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can only consider the new use to the extent that it affects the market value on the date of taking.

The evidence showed that, at the time of the taking, the proposed stream mitigation bank had not yet been created on the condemned property, and no stream mitigation credits had been awarded in connection with the condemned property. And no evidence was presented to show that the proposed future use of the property as a stream mitigation bank, or the value of stream mitigation credits it might have generated under such use, had an effect on its market value on the date of the taking. The value of stream mitigation credits was not a component of the calculation of the condemned property’s market value testified to by either party’s expert witness. And Wayt offered no explanation of how his opinion on the value of credits related to the property’s market value on the date of the taking. Thus, the Trusts failed to show how the value of stream mitigation credits was relevant to the sole issue of just and adequate compensation. Accordingly, although the court excluded Wayt’s opinion testimony on that issue on a different ground, we affirm the court’s ruling as right for any reason.

Judgment affirmed.

Miller, C. J., and Johnson, J., concur.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, Nicholas S. Papleacos, for appellants.

Miles, Patterson, Hansford & Tallant, Dana B. Miles, Kevin J. Tallant, for appellee.

       See Ga. Const. of 1983, Art. I, Sec. Ill, Par. I (a) (except as otherwise provided therein, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid); OCGA § 22-2-80 (providing in pertinent part that party dissatisfied with assessors’ award may seek jury trial as to value of property or amount of damage done).

       See Dept. of Transp. v. White, 270 Ga. 281, 282 (508 SE2d 407) (1998) (two elements of damage are to be considered in a condemnation proceeding involving a partial taking - the market value of the property actually taken and the consequential damage that will naturally and proximately arise to the remainder of the owner’s property from the partial taking).

       See generally Steele v. Dept. of Transp., 295 Ga. App. 244, 247 (2) (671 SE2d 275) (2008) (cost to cure remaining property may be considered as a factor in determining diminished value of remaining property).

       See also OCGA § 22-1-14 (a) (value of condemned property may be determined through lay testimony, admissibility of which is within trial court’s discretion). Compare Johnson v. Knebel, 267 Ga. 853, 855 (1) (485 SE2d 451) (1997) (in case not involving admissibility of lay opinion on value, noting that a lay opinion is not admissible if the facts and circumstances upon which the opinion is based are capable of being clearly defined).

       See Perry v. Perry, 285 Ga. App. 892, 893 (1) (648 SE2d 193) (2007).

       See Gibbs v. Clay, 137 Ga. App. 381, 382 (1) (224 SE2d 46) (1976) (distinguishing between testimony to value that is not the opinion of the witness being examined, and which is subject to exclusion on hearsay grounds; and the opinion of the witness based on facts which he has heard and his own knowledge, and which is not subject to exclusion on hearsay grounds).

        Dept. of Transp. v. Southeast Timberlands, 263 Ga. App. 805, 810 (3) (589 SE2d 575) (2003).

       Compare Vitello v. Stott, 222 Ga. App. 134, 136-137 (1) (473 SE2d 504) (1996) (in addition to receiving two estimates on cost of repairing termite damage to house, homeowner inspected extent of termite damage herself); B & L Svc. Co. v. Gerson, 167 Ga. App. 679, 680-681 (4) (307 SE2d 262) (1983) (in addition to talking with various people about the cost of performing heating and air conditioning work, homeowner reviewed manufacturer’s manual).

       See Smith v. Millen Properties, 179 Ga. App. 165-166 (345 SE2d 625) (1986) (court did not abuse its discretion in excluding homeowner’s opinion on cost to repair various construction defects in house, which he based on his inquiry into and development of estimate for cost to repair).

       Cases cited by the Trusts include Truck Parts &c. v. Rutledge, 211 Ga. App. 166, 167-168 (2) (438 SE2d 404) (1993); Doughty v. Simpson, 190 Ga. App. 718, 720 (2) (380 SE2d 57) (1989); B & L Svc., supra; Four Oaks Properties v. Carusi, 156 Ga. App. 422 (274 SE2d 783) (1980); Contractors Equip. Co. v. Gottfried, 139 Ga. App. 784 (229 SE2d 558) (1976); Gibbs, supra.

       See generally Smith, supra (although court could have found homeowner’s testimony, that he inquired into cost to repair house defects and developed an estimate on same, sufficient to support his lay opinion as to that cost, the court was not compelled to do so).

       See Dept. of Transp. v. Swanson, 191 Ga. App. 752, 754 (2) (382 SE2d 711) (1989); Gresham v. White Repair &c. Co., 158 Ga. App. 235, 236 (3) (279 SE2d 528) (1981).

       See OCGA § 24-9-66.

       See Dept. of Transp. v. White, supra; Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980); Southeast Timberlands, supra at 809 (2) (a); Dept. of Transp. v. Mendel, 237 Ga. App. 900, 901 (1) (517 SE2d 365) (1999).

        Southeast Timberlands, supra at 808-809 (2) (a) (footnote omitted).

       See Steele, supra at 248 (3) (no reversible error in excluding testimony, where condemnee failed to make a proffer of what he expected that evidence to show and that the evidence was relevant).

        See Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 45 (4) (586 SE2d 235) (2003); see also DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 57 (12) (668 SE2d 737) (2008) (affirming, under right for any reason rule, trial court’s exclusion of testimony).


text:
    A10A1193.
    CAPITOL INFRASTRUCTURE, LLC v. THE PLAZA MIDTOWN RESIDENTIAL CONDOMINIUM ASSOCIATION, INC.
    (702 SE2d 910)
   PHIPPS, Presiding Judge.

The Plaza Midtown Residential Condominium Association, Inc. petitioned the superior court for a declaratory judgment against Capitol Infrastructure, LLC, on the issue of whether the Association could terminate, pursuant to OCGA § 44-3-101 (c), certain telecommunications contracts. That Code provision allows for termination under certain circumstances, but only before the expiration of a specified 12-month period:

. . . [A]ny management contract, any lease of recreational area or facilities, or any other contract or lease executed by or on behalf of the association during the period of the declarant’s right to control the association pursuant to subsection (a) of this Code section shall be subject to cancellation and termination at any time during the 12 months following the expiration of such control period by the affirmative vote of the unit owners of units to which a majority of the votes in the association pertain. . . ,

Here, that 12-month period expired without the Association having terminated any such telecommunications contract, rendering the issue moot. Nevertheless, the superior court issued a declaratory judgment that, under that Code provision, those contracts remained subject to termination by the Association. Because the declaratory judgment upon a moot issue was not authorized, we vacate that order and remand the case for proceedings not inconsistent with this opinion.

The relevant facts are not in dispute. On July 13, 2005, the Plaza Midtown Property, LLC, which was developing a residential condominium community named “The Plaza Midtown Residential Condominium,” entered into a “Master Community Infrastructure Agreement” (hereinafter, “Agreement”) with Capitol Infrastructure, LLC for Capitol to install telecommunications infrastructure “on easements provided” for the condominium community. The anticipated infrastructure included internal and external wiring, conduit, security alarm sensors, and equipment that would enable the community to be served with voice, video, data, internet, security, and other services. Capitol was in the business of installing (at its own cost) infrastructure, but not subsequently providing the telecommunications services. Rather (to recoup its installation costs and make a profit), it would arrange for third parties to furnish such services to the condominium community and lease or license to those third-party providers the infrastructure it had installed.

The Agreement stated in its Term paragraph: “The initial term of this Agreement commences on the date of this Agreement and, subject to OCGA § 44-3-101, continues for 12 years after the date on which the first certificate of occupancy is issued for a residence in the Condominium.” Accordingly, an “easement and memorandum of [ajgreement” was recorded in the county court records, and Capitol installed a telecommunications infrastructure at The Plaza Midtown Residential Condominium.

It is uncontroverted that in December 2005, Plaza Midtown Property, LLC, as declarant, recorded in the county court records a condominium declaration for The Plaza Midtown Residential Condominium. That same month, (appellee) Plaza Midtown Residential Condominium Association, Inc. was formed; it was comprised of condominium unit owners and was controlled by Plaza Midtown Property, LLC.

Also that month, several telecommunications agreements were entered into. The Association executed with Capitol a “Service Provider Designation Agreement,” which expressly acknowledged the Agreement. The “Service Provider Designation Agreement” allowed Capitol, among other things, to serve as the “exclusive agent” to negotiate and enter into “bulk service agreements” on behalf of the Association with third-party providers of telecommunications services. Capitol, in turn, negotiated such contracts for third parties to provide telecommunications services to members of the Association. And those third-party providers subsequently entered into contracts with the Association for various telecommunications services for its residents.

In early August 2006, Plaza Midtown Property, LLC surrendered its control of the Association. By that time, condominium unit owners were becoming dissatisfied with aspects of the telecommunications services being provided to them.

In April 2007, the Association filed in superior court a petition seeking a declaratory judgment that the Agreement was subject to OCGA § 44-3-101 (c) such that it could be terminated thereunder. Numerous filings ensued, including the following. Both the Association and Capitol filed a motion for summary judgment, each arguing its position regarding whether the Code provision allowed for termination. Thereafter, in October 2007, the Association filed an “amended petition for declaratory judgment,” wherein it sought to add to its case: (i) a breach of contract count against Capitol for deficient performance, and (ii) a request for a declaratory judgment that the easement granted to Capitol was “a personal obligation of the [Plaza Midtown Property, LLC] that [did] not transfer to [the Association].” Capitol responded with a motion to strike that pleading. In November 2007, the Association filed a motion to add as defendants third-party providers of telecommunications services. Capitol opposed that motion.

The superior court conducted a hearing in April 2008, at which the parties argued, among other things, their respective positions on whether OCGA § 44-3-101 (c) allowed for termination. The Association asserted that the Agreement had been entered into on its behalf and that the plain language within the Term paragraph of the Agreement demonstrated that, as a matter of law, the Agreement was subject to OCGA § 44-3-101 (c) and thus could be terminated thereunder. Capitol countered, among its arguments, that the issue of whether the Agreement could be terminated under OCGA § 44-3-101 (c) was moot. It asserted that, even if the Association might have once been authorized to terminate the Agreement under that Code provision, it undisputedly had not done so within the statutory 12-month period, which had ended on August 1, 2007.

The Association’s counsel acknowledged, “[W]e had until August 1st to terminate this thing. But before we did, we wanted to know does this Code section apply.” The Association’s counsel further outlined to the court what actions the Association had taken prior to August 1. As the record supports, during May and June 2007, the Association sent to condominium unit owners forms upon which to vote whether to terminate the Agreement, the Service Provider Designation Agreement, and “any and all other related contracts.” Then, having received what it determined to be the requisite number of approval votes, the Association informed Capitol and third-party providers of telecommunications services by letters in late July 2007 that it was conditionally terminating the contracts. These actions were taken, the Association’s counsel explained, because “we knew that August 1st [2007] was going to come and go.” Counsel further pointed out that the Association’s bylaws required a final step before a requisite number of procured votes could effect a decision by the Association and that the Association had purposefully not completed that step. The lawyer explained:

Had we [done so],. . . that would have terminated the contract. . . . We would have terminated the contract and been subject to breach and damages and not be able to get our own service providers. ... So we conditionally terminated all the agreements and said we’ll just wait for the Court to rule on this.

In August 2009, three years after Plaza Midtown Property, LLC surrendered control of the Association, the superior court entered an order in favor of the Association. Therein, the court stated that the plain language of the Agreement showed that it was subject to OCGA § 44-3-101. Further, the court noted, the Association had advised Capitol and third-party service providers of its intent to terminate the Agreement and the related contracts, but had refrained from finalizing the termination procedures prior to obtaining a declaratory judgment that it was entitled to do so under OCGA § 44-3-101. Thus, the court declared that the Agreement and “all contracts flowing from the Agreement, are subject to termination by the Association pursuant to OCGA § 44-3-101.” It allowed the Association 30 days within which to send notices of termination of the Agreement and all contracts flowing therefrom. Regarding other outstanding matters, the court ruled that Capitol’s motion to strike the Association’s amendment was moot; it did not reach the counts alleged in the Association’s amendment; nor did it reach the Association’s motion to add parties.

1. Capitol contends that the superior court’s declaratory judgment that the Association could terminate the Agreement “and all contracts flowing from it” under OCGA § 44-3-101 was an impermissible advisory opinion. Capitol maintains that the Association did not terminate any such contract within the time period allowed by that statute and that the superior court’s effective enlargement of the statutory period was not authorized. We agree.

The purpose of the Declaratory Judgment Act is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; [it] is to be liberally construed and administered.” Under the Declaratory Judgment Act,

[t]he superior court is authorized to enter a declaratory judgment upon petition therefor in cases of actual controversy, and to determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations. However, no declaratory judgment may be obtained which is merely advisory, or fruitless, or which merely answers a moot or abstract question.

Assuming, without deciding, that a declaratory judgment was authorized at the outset on the issue of whether OCGA § 44-3-101 (c) would permit the Association to terminate the Agreement and related contracts, by the time the superior court declared judgment on that issue, it was unquestionably moot.

The plain language of OCGA § 44-3-101 (c) provides that certain agreements executed by or on behalf of an association during the period of the declarant’s right to control the association pursuant to OCGA § 44-3-101 (a) “shall be subject to cancellation and termination at any time during the 12 months following the expiration of such control period.” The Association has consistently maintained that it intentionally neither canceled nor terminated the agreements at issue, but chose to await a declaratory judgment from the superior court. By the time the superior court issued the anticipated declaratory judgment, the 12-month statutory period of OCGA § 44-3-101 (c) had expired.

When the 12-month period expired, any right the Association might have had to cancel and terminate contracts under OCGA § 44-3-101 (c) also expired. Thereafter, the Association faced no uncertainty regarding whether that Code provision allowed it to terminate the contracts at issue.

Regardless of when an action reaches the point that it no longer presents a justiciable controversy and presents only a question of academic interest, when it reaches that point, the entry of a declaratory judgment is not appropriate because a court has no province to . . . give advisory opinions.

Where, as here, a

party seeking declaratory judgment does not show it is in a position of uncertainty as to an alleged right, dismissal of the declaratory judgment action is proper; otherwise, the trial court will be issuing an advisory opinion, and the Declaratory Judgment Act makes no provision for a judgment that would be advisory.

Entry of a declaratory judgment under such circumstances is an erroneous advisory opinion and must be vacated.

In so concluding, we have rejected the Association’s assertion that its actions of procuring votes to terminate the Agreement and related contracts and then “conditionally” terminating them were timely and sufficient so as to trigger the protections of OCGA § 44-3-101 (c). More specifically, the Association points to evidence that it claims shows that in July 2007, which was within 12 months of the declarant’s surrender of its control of the Association, it (the Association) obtained the requisite number of votes to terminate the contracts. But even if true, which Capitol disputes, the Association concedes in its brief to this court that “due to the fact that no declaratory judgment had been entered by the trial court to guide the Association in its uncertainty,” it “did not finalize that vote and terminate the Agreement.” What the Association did instead was send a letter to Capitol that pertinently stated:

Due to recent events and the postponement of the hearing in the [case below], the Association wants to further clarify its position as set forth in its Petition for Declaratory Judgment that it is terminating the Master Community Infrastructure Agreement (the “Agreement”) conditional upon the judge’s ruling on its Petition. The Petition and this correspondence puts your client on notice of such termination only if the Court rules that the Agreement is subject to OCGA § 44-3-101 (c). Obviously, if the judgment ultimately rules against the Association and determines that the Agreement is not subject to OCGA § 44-3-101 (c), then the Agreement is not terminated.

And it sent letters with similar conditional language to third-party providers of telecommunications services.

But nothing in OCGA § 44-3-101 (c) permits any such “conditional termination” — one which may ripen eventually, upon which termination would be effective as of some prior date. Had the General Assembly intended to allow for such circumstance, it could have so provided. The plain and unambiguous language of the Code provision, however, shows that it did not. The “best indicator of the General Assembly’s intent is the statutory text it actually adopted,” and where, as here, “the statutory language is clear and does not lead to an unreasonable or absurd result, it is the sole evidence of the ultimate legislative intent.”

Furthermore, the Association has cited no authority that filing a declaratory judgment petition tolls, enlarges, or otherwise nullifies the limited time period expressly prescribed in OCGA § 44-3-101 (c), and we find none. Notably, the Supreme Court of Georgia has held that the “Declaratory Judgments Act. . . does not nullify statutes of limitations.” And although the time limitation in OCGA §44-3-101 (c) is not a statute of limitation, it serves an analogous function in that it establishes a limited period beyond which an association loses its right thereunder to terminate contracts.

Decided November 16, 2010

Greenberg Traurig, Ernest L. Greer, Michael J. King, for appellant.

Lueder, Larkin & Hunter, John T. Lueder, Brendan R. Hunter, for appellee.

The record makes it clear that the Association’s chosen strategy was to refrain from terminating any contract at issue until after the superior court issued a declaratory judgment on its petition. Meanwhile, the time period allotted to do so under OCGA § 44-3-101 (c) ran. And where the issue is thus moot, “dismissal of the declaratory judgment action is proper.” We vacate the superior court’s order and remand for proceedings not inconsistent with this opinion.

2. In light of our holding in Division 1, we need not reach Capitol’s remaining claims of error.

Judgment vacated and case remanded with direction.

Miller, C. J., and Johnson, J., concur.

       OCGA § 44-3-101 (c) (emphasis supplied).

       (Emphasis supplied.)

       See generally OCGA § 44-3-74.

       See OCGA § 44-3-101 (a).

       See OCGA § 44-3-101 (a) (4).

       We construe the superior court’s order, captioned “Order on Plaintiff’s Motion for Summary Judgment,” as a declaratory judgment. “The distinctive characteristic of a declaratory judgment is that the declaration stands by itself and does not seek execution or performance by the defendant. Ordinary judgments, on the other hand, grant consequential or curative relief in some form.” Kirkland v. Morris, 233 Ga. 597, 598 (212 SE2d 781) (1975) (citations omitted). “Because the superior court’s decision was based upon the application of the law to [undisputed] facts, we apply a de novo standard of review.” Dept. of Revenue v. Sledge, 241 Ga. App. 833 (528 SE2d 260) (2000) (citations omitted).

       OCGA § 9-4-1.

        Baker v. City of Marietta, 271 Ga. 210, 213-214 (1) (518 SE2d 879) (1999) (citations and punctuation omitted; emphasis supplied); see OCGA § 9-4-2 (a) (providing, in pertinent part, “In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration.”) (citations and punctuation omitted; emphasis supplied).

        Baker, supra at 214-215 (citations and punctuation omitted).

       Id. at 214 (citation and punctuation omitted).

       Id. at 215.

       (Emphasis in original.)

       (Emphases in original.)

        Chase v. State, 285 Ga. 693, 699 (2) (681 SE2d 116) (2009).

        Shorter College v. Baptist Convention of Ga., 279 Ga. 466, 470 (1) (614 SE2d 37) (2005) (citations and punctuation omitted); Early v. Early, 269 Ga. 415, 416 (499 SE2d 329) (1998) (“In construing a statute, the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.”) (citation and punctuation omitted).

        Bingham v. C&S Nat. Bank, 205 Ga. 285, 288 (53 SE2d 288) (1949).

       See Young v. Williams, 274 Ga. 845, 848 (560 SE2d 690) (2002) (statute of limitation has as its purpose “the limiting of the time period in which an action may be brought, thereby providing a date certain after which potential defendants can no longer be held liable for claims brought on such actions”) (citation omitted).

        Baker, supra at 214 (citation omitted; emphasis supplied).


text:
    A10A1308.
    FARLEY v. BOTHWELL et al.
    (703 SE2d 397)
   BARNES, Presiding Judge.

The trial court dismissed llene Farley’s application to confirm a fee arbitration award issued by the State Bar of Georgia against her former lawyer, Mike Bothwell, and his firm, Bothwell & Harris, EC., and Farley appeals. Because the trial court did not err in finding that the arbitration award was not binding under the State Bar Rules and the facts of this case, we affirm the dismissal.

The State Bar’s Fee Arbitration program is designed to provide a convenient mechanism to resolve disputes between lawyers and clients over fees, and is administered by the State Bar Committee on the Arbitration of Fee Disputes (“Committee”). See State Bar Rules, Part VI, Arbitration of Fee Disputes, Preamble, 247 Ga. A-2. A petitioner seeking arbitration, whether lawyer or client, must agree to be bound by the award, Rule 6-201 (h) (4), and the respondent may either agree to be bound or not agree to be bound. See Antinoro v. Browner, 223 Ga. App. 664, 665-666 (1) (478 SE2d 392) (1996) (physical precedent only). The arbitration process differs depending on whether the respondent agrees to be bound by an award or not.

If both parties agree to be bound by the arbitration, “the award of the arbitrators is final and binding upon them and may be enforced as provided by the general arbitration laws of the State.” Rule 6-417. In that case, a party seeking to enforce the arbitrator’s decision may proceed in superior court under either the Georgia Arbitration Code (Parks v. Anderson, 221 Ga. App. 270, 271 (1) (470 SE2d 811) (1996)), or under “the more summary and expedited proceeding” of Rule 6-501. Prince v. Bailey Davis, LLC, 306 Ga. App. 59 (701 SE2d 492) (2010). Under Rule 6-501, the Committee must upon request file the award in superior court. If no objections are filed within 30 days, the award becomes final, and if an objection is filed, the superior court hears the issue without a jury and renders its decision from the record without a de novo trial.

In contrast, if the respondent is a lawyer and declines to be bound by the arbitrators’ decision, he may attend the arbitration hearing but waives his right to participate in it without the arbitrators’ express consent. Rule 6-402, “Attendance at Hearing.” Further, a nonbinding award cannot be confirmed the same way a binding award is confirmed. Instead, under Rule 6-502, “Where Lawyer Refuses to Be Bound,” if the arbitration award favors the client, “the State Bar will provide a lawyer at no cost[, other than actual litigation expenses,] to the client to represent the client in subsequent litigation to adjust the fee in accordance with the arbitration award.” (Punctuation omitted.) Antinoro v. Browner, supra, 223 Ga. App. at 666. Thus, the rules contemplate that a nonbinding award may be evidence in subsequent civil litigation seeking a personal judgment against the lawyer for the amount of the award, but

the enforcement mechanisms of the [attorney fee dispute] program applicable to binding arbitration do not apply. . . . In such subsequent litigation, the [attorney fee dispute] program gives the client the benefit of free legal representation and a rule establishing the award as prima facie evidence of its fairness.

Id.

The record in this case establishes that in September 2002, Bothwell and Farley entered into a fee agreement for Bothwell to represent Farley in her “whistleblower” litigation under the federal False Claims Act (FCA). The FCA allows private citizens to sue on the government’s behalf, claiming the government was defrauded, in return for a share of any recovery. Bothwell sent the fee agreement to Farley in care of attorney Max Benkel, who was counsel for Farley’s corporation and was named in the agreement as Bothwell’s co-counsel in the FCA litigation. The agreement provided that Bothwell was entitled to a contingency fee as well as attorney fees awarded by the court or in settlement, which are usually paid by the defendants in a successful FCA suit. Farley agreed to reimburse Bothwell’s expenses, to be billed monthly, and the parties agreed that any disputes regarding bills “will be sent to binding arbitration with the Georgia Bar or a similar neutral third party.”

Bothwell filed suit on Farley’s behalf against the Providence Learning Center and its Head Start program, naming 14 defendants altogether, seeking to recover money allegedly owed to the United States as well as damages for Farley’s alleged retaliatory discharge. The record contains little documentation regarding the specifics of the FCA case, but according to Bothwell, Farley alleged that her former employer had misused Head Start grant funds and had coerced her into resigning as program director when she raised questions. According to several affidavits addressing the allocation of the settlement funds, Farley had been earning $70,000 annually, and the grant funding her salary was terminated three months after she left the job. Her employer was insolvent and uninsured, and the FCA litigation involved fifteen depositions, more than 200,000 pages of documents, twenty contested motions, and mediation followed by a day-long mediation and three months of settlement negotiations. The United States declined to participate in the prosecution of the civil action and the parties ultimately entered into a confidential settlement in October 2007.

The settlement agreement specifies that the defendants paid Farley nothing for the FCA allegations, and paid her $550,000 in damages to settle her personal claims, which were for her alleged retaliatory discharge. The settlement agreement states that the defendants paid Bothwell $1,450,000 in attorney fees, and also that any disputes regarding the settlement would be submitted to the mediator who had worked on the case for three months. Upon consideration of the parties’ stipulation of dismissal and the written consent of the United States, the district court dismissed Farley’s personal and FCA claims with prejudice and dismissed the United States’ FCA claims without prejudice.

The defendants paid Farley and Bothwell as agreed. Farley subsequently initiated an arbitration proceeding before the State Bar, asserting that the amount of attorney fees Bothwell received under the settlement agreement was unreasonable. Bothwell declined to proceed under the State Bar’s binding arbitration procedures, and therefore under Rule 6-402 he was not allowed to participate in the February 2009 fee arbitration hearing, although he and his counsel were present. The arbitrators found that Bothwell’s failure “to submit any billing to Petitioner over the five years of his representation in this matter constituted a waiver of any claim for his billed hourly fee over and above the contingency fee agreement amount,” that the settlement was for $2 million, and that Bothwell was entitled to 50 percent of that amount in addition to $53,393 in advanced expenses. The arbitrators thus directed Bothwell to “refund” $396,606 to Farley.

In August 2009, Farley filed an application in superior court to confirm the State Bar’s fee arbitration award and issue judgment against Bothwell, pursuant to OCGA § 9-9-12. Bothwell answered and moved to dismiss the petition, arguing among other things that the arbitration award was nonbinding and thus could not be confirmed in a summary proceeding.

In granting Bothwell’s motion to dismiss Farley’s petition to confirm the arbitration award, the trial court determined that the award could not be judicially confirmed because it was the product of the State Bar’s nonbinding arbitration rules and procedures. Farley argues on appeal that, because her initial fee contract with Bothwell provided that any fee dispute would be resolved by binding arbitration with the State Bar or other neutral party, her arbitration award was binding. While Farley’s counsel on appeal presented a well-argued, creative case, framing the issue as involving “the integrity of the attorney-client contract,” the superior court did not err in holding that this particular arbitration award was not binding under the State Bar’s own rules.

Neither the trial court nor this court has considered the merits of the initial fee contract or of the settlement agreement, because the procedure Farley used to seek a judgment against Bothwell in superior court was limited to the narrow question of whether the award could be confirmed or not. This is not a finding that the “binding arbitration” provision in the fee contract is inapplicable, as Farley asserts, nor is it a finding that the subsequent settlement agreement’s arbitration provision prevails over the fee contract’s arbitration provision, as Bothwell argues. Whether Bothwell should have submitted to binding arbitration is a breach of contract issue that cannot be decided based on a petition to confirm an arbitration award.

Despite the numerous affidavits Bothwell submitted to the superior court attesting that the $550,000 Farley received in settlement was an “excellent result” in this case, that Bothwell’s attorney fees were proportional for this kind of action, and that Bothwell was prohibited by federal law from giving any part of his attorney fee award to Farley, these factual questions also cannot be addressed in the context of a petition to confirm an arbitration award. The only documents in this record from the federal case are the settlement agreement itself and the district court’s order allowing Farley to dismiss her claims. Apparently no public record of the underlying facts in the whistleblower case exist, and if not for this fee dispute, the defendants’ $2 million payment to settle the case would not be public information. Other than the amounts and mechanics of the settlement agreement, we do not know and cannot speculate on what prompted the settlement.

Decided November 16, 2010

Beltran & Chandler, Frank J. Beltran, Douglas V. Chandler, for appellant.

Bothwell, Bracker & Vann, Julie K. Bracker, Rodgers & Hardin, Richard H. Sinkfield, Christopher J. Willis, for appellees.

Based on the foregoing, the superior court’s order dismissing the petition to confirm the arbitration award is affirmed.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The appeal was originally filed in the Supreme Court of Georgia, which transferred it to this court, noting that the Supreme Court’s authority to regulate the profession of law does not give it exclusive jurisdiction to hear all cases involving the State Bar Rules, absent some independent basis invoking subject matter jurisdiction.

       “The [superior] court shall confirm an [arbitration] award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified by the court. . . .” OCGA § 9-9-12.


text:
    A10A1408.
    THE HOME DEPOT et al. v. McCREARY.
    (703 SE2d 392)
   BARNES, Presiding Judge.

Cathy McCreary sought workers’ compensation benefits for a “fictional new injury,” contending that she suffered a closed head injury at work in 2001 but kept working until she could work no longer in June 2003. The ALJ granted her medical benefits for the 2001 injury, but did not address the fictional new injury issue or McCreary’s claim for income benefits. Home Depot appealed and the Appellate Division reversed. McCreary appealed to the superior court, which remanded the case to the Appellate Division for further action. We granted Home Depot’s application for discretionary review of the superior court’s order, and upon review, we affirm.

1. Home Depot argues first that neither the Workers’ Compensation Board’s Appellate Division nor the superior court had subject matter jurisdiction to consider whether McCreary suffered a fictional new injury in June 2003 because McCreary did not cross-appeal the ALJ’s “denial of benefits on the June 27, 2003, date of injury.” McCreary responds that she argued the merits of her June 2003 fictional new injury before both the Appellate Division and the superior court, and Home Depot never raised the jurisdictional issue until its brief before this court. Further, the ALJ did not deny her claim for a fictional new injury; he simply did not address it at all.

Before 1994, an appeal of an ALJ award to the full Board of Workers’ Compensation “open[ed] the entire case as a de novo proceeding.” Ga. Dept. of Revenue v. Hughes, 99 Ga. App. 127, 128 (1) (108 SE2d 184) (1959). “Either party could have urged any question on the appeal that it could have urged in the original trial of the matter before the [ALJ],” id., and therefore a claimant could not dismiss his appeal to the Board when the employer had already argued to the Board that the ALJ erred in part, even though the employer had not cross-appealed. Atlanta Family Restaurants v. Perry, 209 Ga. App. 581 (434 SE2d 140) (1993) (physical precedent only).

At that time, OCGA § 34-9-103 (a) provided that the Appellate Division considered de novo an appeal from an ALJ award, could hear additional evidence if it chose, and could substitute its own findings of fact if any evidence supported them. In 1994 the legislature rewrote OCGA § 34-9-103 (a) to remove the provision allowing the Division to hear additional evidence, and to provide that “the findings of fact made by the [ALJ] in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.” Clinical Arts &c. v. Smith, 218 Ga. App. 681, 682 (462 SE2d 757) (1995).

Thus, the appellate division must weigh the evidence and assess the credibility of witnesses and if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the appellate division concludes that the award does not meet the statutes’ evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.

Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997).

Home Depot argues that the 1994 legislation changed the Appellate Division’s standard of review from de novo “to an appeal,” quoting from Clinical Arts &c. v. Smith, supra, 218 Ga. at 682, n. 1. This quotation, however, is incomplete. In that case we noted that the Appellate Division could no longer consider additional evidence under the 1994 modification, and thus it appeared that the legislature

intended to alter the nature of appellate review by the Board from that of a strictly de novo proceeding conducted by a Board capable of finding facts by hearing additional testimony, to an appeal to the appellate division, under the new modified scope of review, based on a record established in the trial division.

(Emphasis supplied.) Id.

Neither Great American Indem. Co. v. Wimberly, 96 Ga. App. 588 (100 SE2d 593) (1957), nor Dempsey v. Gen. Motors, 102 Ga. App. 408 (116 SE2d 509) (1960), requires a different answer. In both cases, we held that the Board as an administrative body lacked subject matter jurisdiction to reconsider a prior award without a timely application for review. Further, we held that this jurisdictional requirement of a timely application could not be waived. We have also held, for example, that the State Board of Workers’ Compensation lacks subject matter jurisdiction to consider a fraud claim against an insurance agent, Gulf States Underwriters &c. v. Bennett, 260 Ga. App. 699, 701 (1) (580 SE2d 550) (2003), and that the superior court lacks subject matter jurisdiction to consider a workers’ compensation award after it is affirmed by operation of law because the court failed to hold a hearing or issue a ruling within the time prescribed by OCGA § 34-9-105 (b). Truckstops of America v. Engram, 229 Ga. App. 616, 617 (494 SE2d 709) (1997). None of these situations resembles the one involving this appeal.

Here, Home Depot timely appealed the ALJ’s award to the Appellate Division, arguing that the statute had run on the 2001 injury and that the ALJ erred in finding that McCreary suffered a compensable injury on that date and in awarding her benefits. In response, McCreary agreed that the ALJ erred in finding she suffered a compensable injury in 2001, because she dismissed that claim at the hearing, but contended the ALJ made a clerical error in citing the 2001 date instead of the 2003 fictional new injury date. Thus, the issue before the Appellate Division was whether the trial court properly ruled on McCreary’s injury date, an issue that arose from both parties’ arguments. Accordingly, under its modified scope of review set out in OCGA § 34-9-103 (a), the Appellate Division had subject matter jurisdiction to reconsider all of the ALJ’s findings. Once it did so, upon a timely application the superior court also had subject matter jurisdiction to consider the appeal.

Further, while Home Depot contends on appeal that it never had an opportunity to raise this jurisdictional argument before now, the record establishes otherwise. The ALJ did not deny benefits on the June 2003 injury; instead, he made no ruling regarding the June 2003 injury claim at all. Confusingly, while the ALJ acknowledged that both parties stipulated the statute of limitation had run on the 2001 injury, he then awarded McCreary benefits for that injury. In its appeal of the ALJ award to the Appellate Division, Home Depot argued that the ALJ erred in awarding benefits for the 2001 injury. In her response, McCreary conceded the statute had run on the 2001 injury but argued she was entitled to benefits beginning with the June 2003 fictional new injury date. Home Depot did not object to the argument or contend that the Appellate Division lacked subject matter jurisdiction to consider McCreary’s claim for benefits beginning in 2003.

When she lost before the Appellate Division, McCreary appealed to the superior court, arguing that the Appellate Division erred in finding no evidence of any deterioration in her cognitive function resulting from her continued work activity, and erred in finding she “failed to carry her burden of showing that her work injury was the proximate cause of her cognitive disabilities.” In her brief to the superior court, McCreary argued that she had two injury dates, that she suffered a fictional new injury when she had to quit working in June 2003, and that the ALJ obviously erred in finding she was disabled in 2001 instead of 2003. Home Depot never argued in response that McCreary should have cross-appealed the AU’s decision or that the superior court lacked subject matter jurisdiction to consider whether McCreary was entitled to benefits from a fictional new injury in June 2003. Instead, it argued the merits of the issue, contending that the ALJ erred in finding McCreary sustained a compensable injury in February 2001 when the parties had stipulated the statute had run on that claim.

In light of the statutes, case law, and facts of this case, we find no merit in Home Depot’s argument that the Appellate Division and superior court lacked subject matter jurisdiction to consider McCreary’s claim.

2. Home Depot also argues that the superior court erred in vacating the Appellate Division’s award and remanding to the Division for further proceedings, because “any evidence” supported the Division’s findings. As a factfinder, the Appellate Division is authorized to assess witness credibility, weigh conflicting evidence, and draw factual conclusions different from those reached by the ALJ who initially heard the dispute. Bankhead Enterprises v. Beavers, supra, 267 Ga. at 507. “So long as there is some evidence to support the State Board’s decision, findings of fact by the State Board are conclusive and binding on reviewing courts, and judges lack authority to set aside an award based on disagreement with the Board’s conclusions.” (Citation and punctuation omitted.) Lowndes County Bd. of Commrs. v. Connell, 305 Ga. App. 844, 845 (701 SE2d 227) (2010). “However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review” in superior court and on appeal to this court. (Footnote omitted.) Gill v. Prehistoric Ponds, 280 Ga. App. 629 (634 SE2d 769) (2006). In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the Appellate Division. Jarallah v. Pickett Suite Hotel, 204 Ga. App. 684, 686 (1) (420 SE2d 366) (1992).

So construed, the evidence shows that on February 6, 2001, a Home Depot co-worker dropped a 76-pound sheet of plywood that struck McCreary on her left eyebrow. She drove herself to the emergency room, where her wound was cleaned and closed, and she was discharged. She returned to work the next day for a meeting, then went home early but took no more time off and made no workers’ compensation claim. Her health insurer paid the related medical bills.

According to McCreary, she began experiencing cognitive difficulties that made her job difficult, although before the injury she had been progressing rapidly in her career at Home Depot. She sought help from medical doctors and counselors, and finally concluded that her problems resulted from the 2001 head injury. Meanwhile, McCreary injured her neck at work in January 2002 and made a workers’ compensation claim based on that injury. She stopped working in June 2003, for reasons that are disputed. Her 2002 neck injury was determined to be compensable and she began receiving temporary total disability income benefits for that injury in July 2003.

McCreary sought workers’ compensation benefits for the head injury, contending she suffered a “fictional new injury” when her symptoms became so bad she had to stop working in June 2003. At some point, McCreary claimed the 2001 head injury was also compensable, and the two claims were joined. In August 2008, McCreary requested a hearing, at the end of which she conceded that the statute had run on her 2001 injury, and argued instead that her continued employment aggravated her 2001 work-related head injury until she became unable to work in June 2003. That date thus constituted her alleged compensable “fictional new injury.”

The ALJ in his opinion noted that the issue was whether McCreary was entitled to income benefits from June to July 2003; and to medical benefits for the head injury for that same time period, then noted that the parties agreed the statute of limitation had run on the 2001 injury. After exhaustively reviewing the evidence, the ALJ then found that McCreary suffered a head injury in 2001 that had required psychological and psychiatric treatment for which: Home Depot was liable, and inexplicably awarded McCreary over $8,500 for medical expenses and mileage costs incurred since 2001. The ALJ made no findings regarding whether McCreary suffered a fictional new injury when she left work in June 2003 or on her claim for income benefits from June to July 2003.

Home Depot appealed to the Appellate Division, which reversed the ALJ, both because the statute had run on the 2001 injury and: because it found that “no evidence” supported McCreary’s contention that her work aggravated the head injury, but instead showed she had pre-existing unrelated cognitive issues. McCreary appealed to the superior court, which set aside the Division’s conclusion that no evidence supported McCreary’s claim that her cognitive function deteriorated as a result of her continued work activity, and remanded for the Division to weigh the conflicting evidence contained in the record. The superior court also remanded the case to the Appellate Division “for clarification as to whether the doctrine of aggravation of a preexisting condition was considered.”

Contrary to Home Depot’s argument on appeal, the superior court did not re-weigh the evidence before the Appellate Division or conclude that “the Board’s finding was not supported by any evidence.” The court simply found that the Division was incorrect in holding that no evidence showed McCreary’s job made her worse, because the record contains some evidence that the stress of her job made her cognitive dysfunction worse. If an award contains an “undisputed misstatement of fact . . . which we cannot say is immaterial as a matter of law, the case should be and is remanded to the [B]oard to correct its finding . . . and make an award with the correct finding taken into consideration.” Assurance Co. of America v. Shepherd, 155 Ga. App. 36, 37 (270 SE2d 268) (1980).

Further, the trial court properly remanded the case to the Appellate Division to consider whether McCreary had pre-existing cognitive dysfunctions that were worsened by her work until they became disabling, because in its failure to do so the Appellate Division made an error of law. While Home Depot argues on appeal that failure to discuss a proposition of law does not prove failure to consider it, in this case the Division did not simply fail to address the issue. It affirmatively misstated the applicable burden of proof. The Division held:

Decided November 16, 2010.

Goodman, McGuffey, Lindsey & Johnson, C. Wade McGuffey, Jr., Neal B. Childers, for appellants.

John E. Kardos, for appellee.

From our examination of the medical record as a whole, we find significant evidence that the cognitive disabilities forming the basis of the employee’s claim were in evidence well before the employee’s work injury, and the employee has failed to carry her burden of showing that her work injury was the proximate cause of those disabilities.

An employee has no burden to prove that her work injury proximately caused her disability. Regardless of whether McCreary suffered a work-related head injury in 2001, if her employment aggravated a pre-existing condition to the point where she could no longer work, she is entitled to workers’ compensation benefits.

[I]f employment contributes to aggravation of a pre-existing injury, it is an accident under our compensation law, and is compensable, and it is not necessary that there be a specific job-connected incident which aggravates the previous injury. Also, aggravation of a pre-existing condition is com-pensable even when the pre-existing condition is not work-related and unknown to the employee at the time.

(Citation, punctuation and footnote omitted.) Rheem Mfg. Co. v. Butts, 292 Ga. App. 523, 525 (664 SE2d 878) (2008); see also Mallory v. American Cas. Co., 114 Ga. App. 641, 643 (4) (152 SE2d 592) (1966).

Rather than make factual findings regarding these issues, the superior court properly remanded the case to the Appellate Division to consider the correct application of law to the facts. See, e.g., Truckstops of America v. Engram, 220 Ga. App. 289, 291 (2) (469 SE2d 425) (1996); Mansfield Enterprises v. Warren, 154 Ga. App. 863 (270 SE2d 72) (1980).

Judgment affirmed.

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

       Different insurance companies covered the 2001 and June 2003 claims.


author: Doyle, Judge.

text:
    A10A1494.
    NESBITT et al. v. WILDE et al.
    (703 SE2d 389)
   Doyle, Judge.

Scott and Vicki Nesbitt, acting pro se, appeal from the grant of summary judgment to Keith Wilde and Wilde Construction, Inc. (collectively, “Wilde”), contending that the trial court erred by concluding that the Nesbitts cannot pursue claims arising from a construction dispute with Wilde because the Nesbitts are not the real parties in interest. For the reasons that follow, we reverse.

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

So viewed, the record shows that in July 2005, the Nesbitts entered into a contract with Wilde Construction, Inc., whereby Wilde Construction agreed to build a house for the Nesbitts by providing labor, materials, permitting, and work supervision. In return, the Nesbitts promised to pay Wilde Construction a weekly fee plus a percentage of the cost of construction. Construction began, but by January 2006, a dispute had arisen and Wilde Construction stopped its work on the house. It is undisputed that the Nesbitts later completed construction and obtained a certificate of occupancy without the involvement of Wilde Construction.

In June 2006, the Nesbitts executed a security deed for the property in favor of Option One Mortgage Corporation, securing repayment of a note evidencing a $208,000 loan to the Nesbitts. The security deed contained a provision stating that certain causes of action “in connection with or affecting the Property . . . are, at Lender’s option, assigned to Lender. . . ,” In October 2006, the Nesbitts brought a cause of action against Wilde in the State Court of Douglas County, alleging claims for fraud, breach of contract, breach of warranty, negligent construction, violation of the Fair Business Practices Act, and unjust enrichment.

In June 2007, without resolution of the lawsuit against Wilde, the Nesbitts filed for bankruptcy protection in the United States Bankruptcy Court for the Northwestern District of Georgia, which action was converted to a Chapter 7 bankruptcy in June 2008. In September 2008, the bankruptcy court lifted the automatic stay to allow the Lender to foreclose on the security deed, which the Lender did in January 2009, later selling the property to a third party.

In May 2009, the bankruptcy court entered a consent order authorizing the trustee to abandon the bankruptcy estate’s claim to the Nesbitts’ state court cause of action against Wilde, in exchange for the Nesbitts’ payment to the estate of $35,000, which payment was made. After the Nesbitts resumed prosecution of their state court action, Wilde moved for summary judgment, arguing that the Nesbitts were no longer the real parties in interest. The state court granted the motion, giving rise to this appeal.

The Nesbitts contend that the trial court erred by concluding that they were not the real parties in interest because the cause of action on the construction contract was a separate asset not assigned to the Lender and because the foreclosure did not terminate their cause of action. We agree.

The essential question on appeal turns on the effect of the assignment in the security deed. “A deed is a contract. Contract interpretation is a matter of law for the court, unless an ambiguity remains in the contract after applying the rules of construction.”

The security deed provided as follows, in relevant part:

All causes of action of Borrower, whether accrued before or after the date of this Security Instrument, for damage or injury to the Property or any part thereof, or in connection with any transaction financed in whole or in part by the proceeds of the Note or any other note secured by this Security Instrument, by Lender or in connection with or affecting the Property or any part thereof, including causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are, at Lender’s option, assigned to Lender, and the proceeds thereof shall be paid directly to Lender who, after deducting therefrom all its expenses, including reasonable attorneys’ fees, may apply such proceeds to the sums secured by this Security Instrument or to any deficiency under this Security Instrument or may release any monies so received by it or any part thereof, as Lender may elect. Lender may, at its option, appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Borrower agrees to execute such further assignments and any other instruments as from time to time may be necessary to effectuate the foregoing provisions and as Lender shall request.

Based on this language, the trial court concluded that the Nesbitts ¡ “assigned all causes of action related to the Property to the Lender.” Therefore, according to the trial court, upon foreclosure of the; security deed, the Nesbitts were left with no rights to the property or to any causes of action related to the property.

This conclusion is based on the erroneous premise that the assignment was effectuated simply by executing the security deed. By the deed’s own terms, “all [relevant] causes of action of the Borrower . . . are, at Lender’s option, assigned to Lender. . . ,” The assignment provision further states that the Lender may prosecute a claim in its own name or not, again, “at its option.” When we construe a contract, “ [i]f the terms used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense.” Therefore, giving effect to the plain meaning of the deed’s unambiguous language, we conclude that the Lender could, at its option, receive an assignment of a cause of action, but it was not required to simply by executing the security deed. Thus, any relevant cause of action remained with the Nesbitts until the Lender exercised its option to take the proceeds of a cause of action or prosecute the action in its own name.

Based on our review of the record, the only measure taken by the Lender here was to foreclose on the security deed. Neither party points to any other step taken by the Lender manifesting an intent to exercise its option to prosecute a cause of action related to the property or take the resulting proceeds, if any. The tort or contract claims based on the construction contract here were separate from the real property rights associated with ownership of the constructed property, which is presumably why the assignment clause was written into the security deed. Therefore, foreclosure on the security deed did not transfer the cause of action to the Lender, and absent an assignment of the cause of action to the Lender, the Nesbitts’ cause of action based on the construction contract was never a part of the estate owned by the bank after it foreclosed on the security deed.

Decided November 16, 2010.

Scott R. Nesbitt, pro se.

Vicki W. Nesbitt, pro se.

Tisinger Vance, Charles D. Mecklin, Jr., for appellees.

The bankruptcy proceeding did nothing to change the status of the cause of action other than to transfer it to the bankruptcy estate, and when the bankruptcy trustee later abandoned the estate’s claim, “the practical effect of abandonment is that the claim never left [the Nesbitts] in the first place.” Accordingly, the trial court erred by ruling that the Nesbitts were no longer the real party in interest to the cause of action arising from the construction contract.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

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

       As used in this opinion, “Lender” refers to Option One and its successors.

       At this point, Option One had transferred its interests in the security deed and note to LaSalle Bank National Association.

       (Footnote omitted.) Dept. of Transp. v. Meadow Trace, 274 Ga. App. 267, 269 (1) (617 SE2d 246) (2005).

       (Emphasis supplied.)

       (Emphasis supplied.) In light of our overall holding, we assume without deciding that the cause of action at issue is of the type that could be assigned in the security deed.

       (Punctuation omitted.) Goodman v. Frolik & Co., 233 Ga. App. 376, 377 (1) (504 SE2d 223) (1998).

       See, e.g., Burns v. Reves, 217 Ga. App. 316, 317 (1) (457 SE2d 178) (1995) (option lost unless exercised as contemplated by option agreement); Whitmire v. Colwell, 159 Ga. App. 682, 683 (285 SE2d 28) (1981) (some action must be taken to manifest intent to exercise option).

       See Denis v. Delta Air Lines, 248 Ga. App. 377, 379 (546 SE2d 805) (2001) (“a cause of action becomes part of the bankruptcy estate . . .”).

       Id. at 380.