text:
    A16A1827.
    GWINNETT CLINIC, LTD. v. BOATEN.
    (798 SE2d 110)
   McFADDEN, Presiding Judge.

Gwinnett Clinic, Ltd. (“the Clinic”) brought an action against Dr. Afua Sarpon Boaten alleging that she had breached her employment contract with the Clinic and seeking liquidated damages pursuant to that contract. The trial court granted summary judgment to the Clinic on the issue of Boaten’s liability to it for breach of contract but ruled after a bench trial that the contract’s liquidated damages provision was an unenforceable penalty Because the Clinic had not sought any actual damages, the trial court awarded it no damages for Boaten’s breach of contract. See generally Caincare, Inc. v. Ellison, 272 Ga. App. 190, 195 (1) (612 SE2d 47) (2005) (discussingprocedural posture where party seeks to recover for breach of contract only pursuant to unenforceable liquidated damages provision). The Clinic appeals. We agree with the trial court that the liquidated damages provision was unenforceable and, therefore, affirm.

“Georgia law allows parties to provide for liquidated damages in their contracts, and unless the provision violates some principle of law, the parties are bound by their agreement.” Mariner Health Care Mgmt. Co. v. Sovereign Healthcare, 306 Ga. App. 873, 874 (1) (703 SE2d 687) (2010) (citations omitted). See OCGA § 13-6-7.

[A] liquidated damages clause is enforceable if (1) the injury caused by the breach of the contract is difficult or impossible to accurately estimate; (2) the parties intended to provide for damages rather than a penalty; and (3) the sum stipulated upon by the parties is a reasonable pre-estimate of the probable loss.

Caincare, Inc., 272 Ga. App. at 192 (1) (citing Southeastern Land Fund v. Real Estate World, 237 Ga. 227 (227 SE2d 340) (1976); other citations omitted). At a bench trial, the burden is on the defaulting party — here, Boaten — to show the provision is a penalty, and the “defaulting party can carry this burden by proving any of the three factors is lacking.” Id. (citation omitted). See Valley Place v. T. I. Equity Fund (1995), 246 Ga. App. 378, 381 (2) (541 SE2d 37) (2000). Although the enforceability of a liquidated damages provision is a question of law, the above “tripartite inquiry . . . necessarily requires the resolution of questions of fact,” Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989) (citation and footnote omitted), and we will not disturb the trial court’s factual findings, made after a bench trial, if there is any evidence to sustain them. Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 643 (4) (507 SE2d 823) (1998). See generally Maz Medics v. Satellite Advertising Systems, 194 Ga. App. 583, 584 (1) (391 SE2d 446) (1990) (considering whether evidence supported trial court’s factual findings on tripartite inquiry after bench trial on enforceability of liquidated damages provision).

The evidence presented at the bench trial showed that in the summer of 2014, Boaten discussed employment as a physician with the Clinic, which sent her a copy of its standard employment contract to review. That contract contained a clause, titled “Liquidated Damages,” that pertinently provided:

Employer and Employee acknowledge that the actual damages in the event of a breach by either party to this Agreement will be . . . impractical and extremely difficult to ascertain, that the liquidated damages set forth herein represent Employer and Employee’s best estimate of such damages, and that Employer and Employee believe such liquidated damages are a reasonable estimate of such damages. Employer and Employee expressly acknowledge that the foregoing liquidated damages are intended not as a penalty, but as full liquidated damages, as permitted by O.C.G.A. § 13-6-7, in the event of breach of this Agreement and as compensation for the non-breaching party’s inability to further rely upon the benefits of this Agreement for the remainder of its terms as determined by the date of the breach.
If either party breaches the Agreement and fails to honor the Agreement to commence the Employment or terminates the Employment Agreement with an effective date prior to the completion of Employee’s third Employment Year, the liquidated damages shall be $75,500.00 (equal to six months salary of Employee’s First Year Salary, i.e., $151,000.00), payable by the party breaching/terminating the Agreement, without cause, to the other party

Boaten reviewed this contract and asked questions about some of its provisions, but she did not ask any questions about the liquidated damages provision.

On August 15, 2014, Boaten met with the Clinic’s president, Dr. J. J. Shah, and both parties signed the contract and initialed all of its pages, including the page containing the liquidated damages provision. At this meeting, they negotiated the length of the term of employment but did not discuss the liquidated damages provision or engage in any specific negotiations related to it. Boaten subsequently accepted an offer to work for a different, employer. She did not report for work at the Clinic on her contracted start date.

The trial court found that the evidence presented at the bench trial satisfied the first prong of the tripartite inquiry (an injury that is difficult or impossible to accurately estimate) but not the second prong (the parties intended to provide for damages rather than a penalty) or the third prong (the stipulated sum is a reasonable pre-estimate of the probable loss). As a result, the trial court concluded that the contract’s liquidated damages provision was an unenforceable penalty. The trial court’s finding as to the first prong is not at issue on appeal. We agree with the trial court about the third prong, as detailed below, and so we do not decide about the second prong.

We find no error in the trial court’s conclusion that the liquidated damages provision was unenforceable, because the evidence supported his finding as to the third prong — that there was no reasonable pre-estimation of probable loss. “[T]he touchstone question is whether the parties employed a reasonable method under the circumstances to arrive at a sum that reasonably approximates the probable loss of the defaulting party.” Caincare, Inc., 272 Ga. App. at 193 (1). The parties’ statement to this effect in their contract is not dispositive. See Nat. Svc. Indus. v. Here to Serve Restaurants, 304 Ga. App. 98, 102-103 (695 SE2d 669) (2010); Lager’s, LLC v. Palace Laundry, 247 Ga. App. 260, 265-266 (3) (543 SE2d 773) (2000). The record must show evidence that prior to the execution of the agreement, there was an attempt “to estimate damages resulting from a potential breach.” JR Real Estate Dev. v. Cheeley Investment, 309 Ga. App. 250, 255 (1) (c) (709 SE2d 577) (2011) (citation and punctuation omitted).

No evidence was presented in this case that tied the contract’s stipulated sum — a half-year’s salary — to the probable loss of either party upon the other party’s breach. The provision at issue in this case stipulated a single, unvarying sum as liquidated damages. Compare Antonios v. Gwinnett Clinic, 294 Ga. App. 101, 102-103 (1) (668 SE2d 531) (2008) (in a case involving the same contract at issue here, affirming the trial court’s ruling enforcing a different liquidated damages provision that awarded damages for an employee’s failure to give sufficient notice of termination by calculating damages based on the number of days that the notice was deficient). It required this single amount to be paid, regardless of which party breached the employment agreement and regardless of what point during the term of employment the breach occurred. Under the liquidated damages provision, an employee who did not work the full contractual term would have to pay the employer a half-year’s salary whether she worked all but one day of the contractual period or did not work a single day Likewise, under the provision, the employer who fired an employee without cause would have to pay the employee a half-year’s salary whether it fired the employee at the outset of the contractual period or one day before that period expired. The provision required payment of a half-year’s salary whether or not the abandoned employer found another worker or the fired employee found another job. Consequently, the provision “provides [the non-breaching party] with payment potentially bearing no reasonable relation to actual damages.” Peterson v. P. C. Towers, 206 Ga. App. 591, 594 (3) (426 SE2d 243) (1992) (citation omitted). See Daniels v. Johnson, 191 Ga. App. 70, 72 (1) (381 SE2d 87) (1989) (where designated sum “would be in some instances too large and in others too small a compensation for the injury occasioned” it “was not shown to have a reasonable predetermined relation to the contractual damages the [non-breaching party] might suffer”) (citations and punctuation omitted).

Although, at the bench trial, Clinic president Shah described the type of damages that the Clinic might sustain if an employee did not appear for work, he offered no explanation for how the contract’s designated sum — a half-year’s salary — related to those damages. See Caincare, Inc., 272 Ga. App. at 194 (1) (citing party’s failure to explain how sum in liquidated damages provision was chosen in finding that defaulting party had shown sum was unreasonable estimate of probable loss and thus unenforceable penalty); Lager’s, LLC, 247 Ga. App. at 266-267 (3) (citing lack of evidence as to reasonableness of formula in finding liquidated damages provision to be unenforceable penalty). To the contrary, Shah’s testimony suggested that the Clinic arbitrarily selected this amount for its standard contract. See Budget-Luxury Inn of Dayton v. Kamash Enterprises, 194 Ga. App. 375, 376 (390 SE2d 607) (1990) (affirming trial court’s ruling that liquidated damages provision was unenforceable penalty where evidence supported finding that amount of damages was an “arbitrary number” that ‘Tore no relation to estimated damages”); Thorne v. Lee Timber Products, 158 Ga. App. 226, 227 (279 SE2d 521) (1981) (permitting inference that liquidated damages provision was unenforceable penalty from evidence that contract’s “procedure for calculating damages . . . did not, in reality, provide a true estimate of damages”). Shah testified that originally the Clinic had stipulated a full-year’s salary as damages for early termination, but later it reduced that sum to a half-year’s salary to make the sum less burdensome for employees. See generally Physician Specialists in Anesthesia v. MacNeill, 246 Ga. App. 398, 401 (1) (539 SE2d 216) (2000) (evidence that formula was chosen because it “would be a just amount” showed that no effort was made to pre-estimate probable loss). Shah testified, however, that even the full-year’s salary would not have compensated the Clinic for the damages it incurred where, as here, an employee never appeared for work, and he described the half-year’s salary as being “on a very low end” of a reasonable estimate of its loss.

Shah’s testimony also suggested that one purpose of the liquidated damages provision was to deter employees from breaching the agreement. When asked why the Clinic included the provision in its standard employment contract, he explained that the Clinic “expects [employees] to be present so that the plans [the Clinic] make[s] for staffing physicians at various locations are fulfilled and that [the employees] show up.” “[W]here a designated sum is inserted into a contract for the purpose of deterring one or both of the parties from breaching it, it is a penalty” Daniels, 191 Ga. App. at 71 (1) (citations and punctuation omitted).

Decided March 9, 2017.

R. Jackson Wilson, for appellant.

DeLong, Caldwell, Bridgers, Fitzpatrick & Benjamin, Earnest H. DeLong, Jr., Michael A. Caldwell, Charles R. Bridgers, for appellee.

For these reasons, the evidence presented at the bench trial authorized the trial court to find that the liquidated damages provision was not a reasonable pre-determination of probable loss. Consequently, the trial court did not err in concluding that it was an unenforceable penalty and could not establish the Clinic’s damages for Boaten’s breach of the employment contract.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bethel, Judge.

license: Public Domain

text:
    A16A1851.
    POPHAM v. LANDMARK AMERICAN INSURANCE COMPANY et al.
    (798 SE2d 257)
   Bethel, Judge.

Charles Popham (“Popham”) appeals from an order granting summary judgment in favor of defendants Landmark American Insurance Company (“Landmark”) and Tapco Underwriters, Inc. (“Tapco”) (collectively, the “defendants”).

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So construed, the record shows that Popham contacted independent insurance agent Steven Greenberg (“Greenberg”) to obtain a new commercial liability insurance policy for his tree removal business. After contacting several underwriters, Greenberg obtained an insurance quote for Popham from Tapco, an underwriter that had the authority to issue insurance policies on behalf of Landmark. Popham met with Greenberg on November 17, 2010, at which time Popham signed an application for insurance and paid a down payment on the premium to Greenberg. Popham received a certificate of insurance from Greenberg showing a policy effective date of November 17, 2010.

Tapco issued a binder to Popham stating that it would provide temporary insurance coverage until November 29, 2010, provided that Tapco “receive[d] a properly completed application and a premium payment within 12 days.” Per the terms of the binder, Pop-ham’s failure to remit a completed application and the premium payment to Tapco by that date would nullify and void coverage. The language of the binder also provided that the binder

exists on its own terms and expires on its own terms. When a binder expires on its own terms, no coverage exists thereafter. Requirements for notice of cancellation to insureds do not apply to expired binder.

In deposition, both Greenberg and Popham stated that they each understood that the premium payment had to be paid by November 29, 2010.

On November 29, Popham met with Greenberg to make another premium payment, and Greenberg mailed a premium check and Popham’s insurance application to Tapco either that day or the following day. However, it is undisputed that Tapco did not receive the premium payment and the application by November 29, 2010.

On December 7, 2010, Tapco notified Greenberg that it had not received the application and premium check for Popham’s policy and that the binder was null and void. Two days later, on December 9, 2010, Tapco received Greenberg’s mailing containing the application and the premium check and deposited the check that day The following day, Tapco informed Greenberg that additional application materials were required to issue the insurance policy and that the policy’s effective date would be December 9, 2010. Greenberg faxed the additional materials to Tapco, and Tapco, acting on behalf of Landmark, wrote an insurance policy for Popham with an effective date of December 9, 2010.

Meanwhile, on December 1, 2010, Popham was cutting trees with two other men present. One of the other men was seriously injured after a tree fell on him. The injured man brought suit against Popham in late 2011 and won a default judgment against him in early 2012 after Popham failed to respond to the suit. Popham later filed an insurance claim with Landmark, which it denied, stating that no policy was in effect on the date of the accident.

On November 17, 2014, Popham filed suit against the defendants, alleging negligence, breach of contract, and failure to pay an insurance claim in bad faith. Popham also sought punitive damages and attorney fees from the defendants. The trial court granted motions for summary judgment in favor of the defendants with respect to all claims, and this appeal followed.

In his brief before this Court, Popham enumerates several alleged errors in the trial court’s ruling. First, he argues that the trial court erred in ruling that there was no agency relationship formed between Greenberg and Tapco or Greenberg and Landmark. Second, Popham claims the trial court erred in finding that no insurance contract existed between Popham and either Tapco or Landmark at the time of the December 1, 2010, accident. Third, Popham claims that the trial court erred in allowing Landmark to amend its answer to assert a statute of limitation defense to his personal injury claims after the trial court’s scheduling order deadline. Derivative of those rulings, Popham claims the trial court erred in granting summary judgment on his bad faith claims and his claims for punitive damages and attorney fees.

As Popham has failed to bring forth sufficient evidence to support his claims, we affirm the trial court’s grant of summary judgment with regard to each enumeration above. Additionally, we hold that the trial court did not abuse its discretion in permitting Landmark to amend its pleadings to raise a statute of limitation defense, as Popham failed to demonstrate prejudice resulting from that decision.

1. As a threshold matter, Popham claims the trial court erred in finding that no agency relationship existed between Greenberg and Tapco or between Greenberg and Landmark. He argues that Green-berg was acting as an agent for Tapco and/or Landmark, and that therefore genuine issues of fact exist as to whether an insurance contract between Popham and Tapco and/or Landmark was in effect at the time of the December 1, 2010, accident.

The plaintiff has the burden of bringing forth evidence establishing the existence of the agency relationship. Handy v. DeKalb Med. Center, 298 Ga. App. 82, 83 (679 SE2d 107) (2009). Under Georgia law, “[ijndependent insurance agents or brokers are generally considered the agent of the insured, not the insurer.” European Bakers, Ltd. v. Holman, 111 Ga. App. 172, 173-174 (2) (338 SE2d 702) (1985) (citation omitted). An independent insurance agent will be considered an agent of the insurer if the plaintiff brings forth evidence that the insurer granted the agent or broker “authority to bind coverage on the insurer’s behalf.” Kinard v. Nat. Indem. Co., 225 Ga. App. 176, 178 (1) (483 SE2d 664) (1997) (citations omitted). Alternatively, if an insurer holds out an independent agent as its agent and an insured justifiably relies on such representation, the independent agent will be considered the agent of the insurer. See Kirby v. Northwestern Nat. Cas. Co., 213 Ga. App. 673, 678 (445 SE2d 791) (1994).

(a) We must first determine if there is an issue of fact as to whether Greenberg was given authority by Tapco and/or Landmark to bind insurance policies on their behalf.

Greenberg indicated in his deposition that he was acting as an agent for Popham in bidding out his request for liability insurance coverage to multiple underwriters, including Tapco. He testified that he was not an agent or employee of Landmark and had no contract with Landmark. Greenberg claimed that he did not have the authority to issue a binder or an insurance policy on behalf of Tapco or Landmark. Both Tapco and Landmark repeatedly denied that Green-berg had ever been their agent.

Despite these statements, Popham argues that other statements by Greenberg and his counsel suggest Greenberg had the authority to bind Tapco. Popham specifically points to statements by Greenberg that he was a “subagent” of Tapco and had “brokerage agreements” with Tapco, as well as a statement by Greenberg’s counsel in open court that Greenberg was an agent of Tapco. Popham contends that these statements cannot be ignored by the trial court and argues that they are sufficient to show a triable issue of fact as to whether Green-berg had the authority to bind Tapco and Landmark. We disagree.

The inquiry here is not whether Greenberg believes himself to be an “agent” or “subagent” of Tapco or Landmark or how he characterizes his relationship with those entities. Rather, the inquiry in this case is whether he had actually been granted the “authority to bind coverage on the insurer’s behalf.” Kinard, 225 Ga. App. at 178 (1); see also Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 606-607 (1) (a) (503 SE2d 278) (1998) (evidence of a relationship between the purported principal and agent is insufficient where there is no evidence of agent’s authority to create obligations on behalf of the principal).

Importantly, the label or characterization of the relationship by the purported agent is not sufficient to show what actual authority the agent had been given by the purported principal. Kirby, 213 Ga. App. at 677-678 (2); cf. Jennette v. Nat. Community Dev. Svcs., 239 Ga. App. 221, 223 (2) (520 SE2d 231) (1999) (noting that labeling the purported agent as an “independent contractor” was not dispositive to agency analysis). In Kirby, an employee of an independent insurance agent indicated in an affidavit that he and his company were agents of the insurer. Kirby, 213 Ga. App. at 675. This Court ruled that despite the employee’s “initial representation that he was an agent of [the insurer]” in his affidavit, there was “no evidence to that effect.” Id. at 678 (2). Kirby thus makes clear that on summary judgment, plaintiff must come forward with evidence that the insurer granted authority to the alleged agent and cannot rely on conclusory statements by the alleged agent.

While Popham fixates on the use of the terms “agent” and “subagent” by Greenberg and his counsel, those statements do not speak to any authority on Greenberg’s part to bind Tapco or Landmark to an insurance policy, and the defendants unequivocally deny that Greenberg has this authority elsewhere in the record. We thus agree with the trial court that Popham has not brought forward evidence that Greenberg was expressly granted the authority to bind coverage on behalf of Tapco or Landmark.

(b) We must also consider whether Greenberg had the apparent authority to bind Tapco or Landmark. To prove apparent agency, “the evidence must show: (1) the apparent principal represented or held out the apparent agent; and (2) justifiable reliance upon the representation led to the injury” Kirby, 213 Ga. App. at 678 (2) (citation and punctuation omitted).

Here, Landmark stated that it had no contact with Popham or Greenberg throughout the insurance application process. Moreover, the record is devoid of any evidence that Tapco or Landmark ever held out Greenberg as an agent with the authority to bind it to an insurance contract.

Popham notes that Greenberg provided him with a certificate of insurance showing that he had insurance coverage from Landmark beginning on November 17, 2010, and argues that this implied Greenberg was working on behalf of Tapco or Landmark. However, acts or statements by the alleged agent, with no proof of any act on the part of the alleged principal, are insufficient to create an implied agency relationship. American Mfrs. Mut. Ins. Co. v. E A Tech. Svcs., 270 Ga. App. 883, 887 (2) (608 SE2d 275) (2004); Howard v. St. Paul Fire & Marine Ins. Co., 180 Ga. App. 802, 804 (350 SE2d 776) (1986). As this Court discussed in Howard,

where the only evidence that a person is an agent of another party is the mere assumption that such agency existed, or an inference drawn from the actions of that person that he was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such an agency exists.

Howard, 180 Ga. App. at 804 (1) (citations and punctuation omitted). With regard to certificates of insurance specifically, where there is no evidence that the alleged principal has held a person out as its agent, “a certificate of insurance, standing alone, is insufficient to authorize a finding that the agency is the agent of the carrier.” E A Tech. Svcs., 270 Ga. App. at 887 (2).

We thus agree with the trial court that Popham failed to bring forth evidence that Greenberg had the apparent authority to bind Tapco or Landmark to an insurance policy Having already agreed that Greenberg lacked the actual authority to bind Tapco or Landmark to contracts of insurance, we affirm the trial court’s determination that Greenberg was not an agent of Tapco or Landmark.

2. Popham next claims that even if Greenberg did not have the authority to bind Tapco or Landmark, there remains a triable question of fact as to whether an insurance contract between Popham and Tapco or Landmark was formed and later breached. We disagree.

Under Georgia law, an insurance binder is a contract for temporary insurance pending the issuance of a formal insurance policy, and both the binder and any subsequent insurance policy are governed by contract law. See McDuffie v. Criterion Cas. Co., 214 Ga. App. 818, 819-820 (449 SE2d 133) (1994); OCGA § 33-24-33 (a). Parties to an insurance contract are “bound by its plain and unambiguous terms,” and “[w]here the contractual language unambiguously governs the factual scenario before the court, the court’s job is simply to apply the terms of the contract as written . . . Reed v. Auto-Owners Ins. Co., 284 Ga. 286, 287 (2) (667 SE2d 90) (2008) (citation omitted).

Here, the insurance binder clearly stated that coverage under the temporary policy would be deemed null and void if payment of the premium was not received by Tapco by November 29, 2010. Accordingly, interpretation of that provision of the binder was a question of law that was properly ruled upon by the trial court, and the only factual determination regarding such claim was whether such payment was received by Tapco by that date. As it is undisputed that the payment was not received by the deadline, applying the clear terms of the binder, it expired on its own terms, and there was no coverage under it thereafter.

When the moving party can demonstrate that there is no genuine issue of material fact “by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims,” summary judgment is proper. Oglethorpe Dev. Group v. Coleman, 271 Ga. 173, 173 (1) (516 SE2d 531) (1999) (citation omitted). As the undisputed facts show that the binder expired on November 29, 2010, we agree with the trial court’s ruling that no contract for insurance was in effect at the time of the accident on December 1, 2010.

3. Popham also claims the trial court abused its discretion by permitting Landmark to amend its answer to raise a statute of limitation defense to Popham’s personal injury claims after the entry of the pre-trial order. We disagree.

Here, the trial court entered a scheduling order for the case on March 9, 2015, that provided that the parties’ pleadings could be amended until July 11, 2015. Tapco had raised a statute of limitation defense in its answer, and while he was still a party to this litigation, Greenberg amended his answer to do so with particularity on August 21,2015. Landmark filed an amended answer raising the statute of limitation defense on December 15, 2015, over two months after it filed its motion for summary judgment.

While a defendant has the right to amend its pleadings to include affirmative defenses at any time before the entry of a pre-trial order, a party must seek leave of the court to do so after the entry of the order. See OCGA § 9-11-15 (a). In determining whether to grant such a request after the entry of a scheduling order, the trial court has the power to “amend and control its processes and orders, so as to make them conformable to law and justice,” OCGA § 15-1-3 (6), and leave to amend pleadings is to be “freely given when justice so requires.” OCGA § 9-11-15 (a).

In determining whether leave to amend an answer should be allowed after entry of a pre-trial order, trial courts must balance “possible unfair prejudice to the nonmoving party with the movant’s reasons for delay.” Rowe v. Akin & Flanders, Inc., 240 Ga. App. 766, 769-770 (3) (525 SE2d 123) (1999) (citation omitted). “Mere delay in seeking leave to amend is not a sufficient reason for its denial.” MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41, 43 (2) (230 SE2d 26) (1976).

Here, Popham has failed to show how he was prejudiced by the trial court’s decision. In Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342 (173 SE2d 723) (1970), this Court noted that the “purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense.” Id. at 346 (2) (a) (citations omitted). Because both Tapco and Greenberg had raised the statute of limitation defense by the time Landmark did so, Popham was on notice that the defense would be considered by the trial court. In addition, Popham’s claims against Landmark related to the same general body of facts as its claims against Tapco and Greenberg, and similar evidence would be utilized by Popham to respond to the assertion of the statute of limitation defense, regardless of which party raised it.

We fail to see how Popham was prejudiced by the trial court’s decision to permit Landmark to raise the defense. While it is clearly desirable for a defendant to raise its affirmative defenses at the earliest possible juncture, Georgia law grants trial judges wide discretion to conduct the business of their courts, including establishing and revising deadlines for pre-trial filings. We thus find no error in the trial court’s decision to permit Landmark to raise the statute of limitation defense.

4. Popham’s remaining enumerations of error regarding claims against Tapco and Landmark for bad faith, punitive damages, and attorney fees are mooted by this Court’s rulings, supra. As we have upheld the trial court’s ruling that neither Tapco nor Landmark had a contract of insurance with Popham in effect on the date of the accident, no bad faith claim can be asserted against either defendant for failure to pay a claim arising from that accident. See Lavoi Corp. v. Nat. Fire Ins. of Hartford, 293 Ga. App. 142, 146 (1) (b) (666 SE2d 387) (2008); OCGA § 33-4-6 (a). Similarly, awards of punitive damages and attorney fees are derivative of underlying claims; where those claims fail, claims for punitive damages and attorney fees also fail. See Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 580 (5) (571 SE2d 557) (2002) (“In accordance with OCGA § 51-12-5.1, punitive damages can only be awarded as additional damages.”) and United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996) (“A prerequisite to any award of attorney fees ... is the award of . . . relief on the underlying claim.”). Because each of Popham’s claims against Tapco and Landmark fail as a matter of law, Popham cannot recover punitive damages or attorney fees.

Decided March 9, 2017

Nicole Jones, for appellant.

Levy & Pruett, Susan J. Levy; Freeman Mathis & Gary, Philip W. Savrin, Jessica C. Samford; Hall Booth Smith, Kenneth D. Jones, Nathan A. Gaffney, for appellees.

Judgment affirmed.

McFadden, P. J., and McMillian, J., concur.

       Steven Greenberg was originally a party to this case as a defendant. However, during the pendency of this appeal, Popham and Greenberg reached a settlement, and Greenberg was withdrawn as a party. As discussed more fully below, Greenberg’s activities, including filings and statements made during the pendency of this litigation, are germane to the issues presented in this appeal. However, due to Greenberg’s dismissal prior to the rendering of this decision, we will not address the merits of any of Popham’s claims against Greenberg or the propriety of the trial court’s rulings on those claims.

       Popham pled counts of negligence against Tapco for failing to inform Popham that his binder had been withdrawn, and against both defendants for failing to insure him. As more fully set forth infra, our only consideration as to those claims is in regard to whether the statute-of-limitation defense was timely raised by Landmark.

       Greenberg stated in his deposition that he has “brokerage agreements” with several insurance companies and that he is “like a subagent.” He stated, with respect to Tapco, that the agreement is “an authority to do business with them” and that he is “not an employee of theirs.” Rather he is a “contractor” and a “subagent.” He went on to testify that he has the authority “to do business with them [presumably, Tapco], but not to do business with the [insurance] companies directly.” In his words, “[Tapco chooses] the [insurance] company” by giving Greenberg an insurance quote that “best fits the risk for the type of insurance that’s needed.” He also indicated that Tapco gives him the authority to fill out customer applications “and the supplements that they need and the terrorism form.”

       In the hearing, the judge asked Greenberg’s counsel, “So Mr. Greenberg’s position is he was acting as the agent for Tapco; is that correct?” Greenberg’s counsel replied, “That is correct.”

       Popham cites this Court’s ruling in Nat. Property Owners Ins. Co. v. Wells, 166 Ga. App. 281 (304 SE2d 458) (1983) in support of this proposition. However, his reliance on Wells is misplaced. In Wells, the plaintiff’s complaint asserted an agency relationship between an independent insurance agent and an insurer. Wells, 166 Ga. App. at 281. The insurer denied the existence of the agency relationship alleged by plaintiff in an affidavit submitted by one of its officers, but no other evidence regarding an agency relationship was brought forward by the plaintiff or the insurer prior to the insurer’s summary judgment motion. Id. This Court found that the denial in the affidavit “pierced the plaintiff’s pleadings and placed on him the burden of showing the fact of agency.” Id. at 283 (2). Wells thus speaks only to what evidence is sufficient for a defendan t to support its motion for summary judgment on an agency claim, and, critically, does not purport to establish what evidence is sufficient to satisfy the plaintiff’s burden of bringing forth evidence to support its claim. Id.

       Notably, in the same colloquy at the motion hearing, Greenberg’s counsel was asked by the court, “[Greenberg] can’t bind insurance on behalf of Tapco. He doesn’t have that authority?” Greenberg’s counsel replied “He sends the insurance policies back to Tapco and then they bind.”

        Hays v. Ga. Farm Bureau Mut. Ins. Co., 314 Ga. App. 110, 111 (1) (722 SE2d 923) (2012) (citation omitted).

       We note that binders may, by their “clear and express terms,” add to terms of an insurance policy. See OCGA § 33-24-33 (a). This includes the ability to add conditions precedent to liability on the part of the insurer in the terms of the binder. See Southwestern Life Ins. Co. v. Middle Ga. Neurological Specialists, 262 Ga. 273, 274-275 (1) (416 SE2d 496) (1992) and McDuffie, 214 Ga. App. at 820 (“an insurance company may fix the terms of its . . . binders as it wishes . . . .”). Such conditions precedent may include receipt of required payments by a date certain. Id.

        Hays, 314 Ga. App. at 111.

       Popham also asserts that, through application of the “mailbox rule,” a jury could find that Greenberg had mailed the payment and application on the day they were due and that, as such, the binder did not lapse. See OCGA § 13-3-3. We disagree that application of that rule is warranted by this case. Because the binder states that the application and payment were to be received by Tapco by November 29, 2010, we agree with the trial court that terms plainly and unambiguously set forth the terms under which the binder would be rendered null and void. Thus, no factual issue arises as to what action by the plaintiff was necessary to comply with the terms of the binder. See Carterosa, Ltd. v. Gen. Star Indem . Co., 227 Ga. App. 246, 248-249 (1) (489 SE2d 83) (1997) (noting that the offeror may specify the method through which the offer must be accepted, including through an “act”) and B. Frederics Inc. v. Felton Beauty Supply Co., 58 Ga. App. 320, 330 (1) (198 SE 324) (1938) (noting resort to “mailbox rule” only when an offer is made “without stating how the acceptance shall be communicated”) (citing Rowntree Bros. v. Bush, 28 Ga. App. 376, 376 (111 SE 217) (1922)).

       Here, we note that summary judgment was granted to Landmark for certain claims based on the running of the statute of limitation. Popham only argues that the statute of limitation defense was not properly raised by Landmark and does not challenge the application of the limitation period.

       In its order granting summary judgment, the trial court noted that its March 9, 2015 scheduling order was treated as a pre-trial order.

       Greenberg’s original answer raised the statute-of-limitation defense only by making reference to “all... affirmative defenses set forth in OCGA § 9-11-8 (c).” Plaintiff apparently did not contest the decision of the trial court to permit Greenberg to amend his answer after the deadline stated in the pre-trial order.

        See Atlanta Fire System v. Alexander Underwriters Gen. Agency, 185 Ga. App. 873, 874 (1) (366 SE2d 197) (1988) (objecting party failed to satisfy trial court that it was surprised by late inclusion of a claim and unprepared to defend it on the merits because it had access to documents that were the basis of the late claim throughout the entire pendency of the lawsuit).


author: Branch, Judge.

text:
    A16A1863.
    SACHTJEN v. THE STATE.
    (798 SE2d 114)
   Branch, Judge.

On appeal from his conviction for less-safe driving under the influence (DUI) and reckless driving, Brian Sachtjen argues that the trial court erred when it refused to charge the jury that the absence of some audio portions of a video recording of the incident entitled him to a presumption that the missing parts of the recording would have been favorable to the defense. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

Thus viewed in favor of the verdict, the record shows that on February 11, 2012, a City of Atlanta police officer traveling north on West Peachtree Street toward the intersection with 14th Street saw a Jaguar automobile traveling east on 14th Street begin a right turn (southbound) onto West Peachtree Street. The officer’s attention was attracted because the Jaguar was now going the wrong way on West Peachtree Street, which is a northbound one-way street on both sides of its intersection with 14th Street, and because the Jaguar was headed toward a car traveling northbound on West Peachtree. The officer then saw the Jaguar correct itself, turn left back onto 14th Street heading east, and nearly hit a concrete median. After the officer saw the Jaguar failing to maintain its lane, he activated his blue lights, and the Jaguar pulled into the exit-only lane of a parking lot, blocking a car that was stopped at a cashier’s booth.

The officer approached the car, which Sachtjen had already exited without being asked. When the officer noticed vomit on Sachtjen’s shirt and jacket and asked if Sachtjen was “okay,” Sachtjen replied that he was. When the officer asked if Sachtjen knew why he had been stopped, Sachtjen shook his head and then said that he did not know. As the officer explained why he had stopped Sachtjen, who said that he had drunk “not much,” the officer noticed that Sachtjen’s eyes were watery and glazed, that his speech was garbled, that he was unsteady on his feet, and that he had a strong odor of alcohol on his breath. After speaking to the parking lot attendant about getting the lot’s patrons out of the lot by another exit, the officer administered field sobriety tests, which showed six of six clues on the horizontal gaze nystagmus test, six of eight clues on the walk-and-turn test, and three of four clues on the one-leg-stand test. The officer then placed Sachtjen under arrest for less-safe DUI, placed him in the patrol car, and read him the implied consent warning, including a request for a state-administered breath test. Sachtjen agreed to a breath test, which showed blood-alcohol levels of 0.198 or more.

Sachtjen was charged with per-se and less-safe DUI, reckless driving, failure to maintain lane, and driving the wrong way on a one-way street. After a hearing on Sachtjen’s motion to suppress, the trial court suppressed the breath test result on the ground that Sachtjen’s request for an independent blood test had not been communicated to the arresting officer. As a result, the per-se charge against Sachtjen was dismissed.

A camera in the officer’s patrol car recorded Sachtjen’s arrest. This video recording included some audio portions recorded by the officer’s body microphone, but this audio failed, for reasons the officer did not know, when he and Sachtjen returned to the patrol car. According to the officer’s testimony, he answered a phone call from Sachtjen’s wife (with Sachtjen’s permission) on returning to his patrol car. Before trial, Sachtjen requested that the jury be charged as follows:

If you find from the evidence that a videotape recording was made of the traffic stop and roadside investigation in this case, and that the police failed to preserve all or a part of the tape recording, I instruct you to presume that the tape, had you been able to view it, would have been favorable to the defendant.

The trial court denied this request, but authorized Sachtjen to argue that the jury was entitled to consider the partial absence of audio from the video recording of his arrest. The video was played for the jury, which found Sachtjen not guilty of failing to maintain lane and wrong-way driving but guilty of less-safe DUI and reckless driving. Sachtjen was convicted, and his motion for new trial was denied. This appeal followed.

1. Although Sachtjen has not asserted that the evidence was insufficient, we have reviewed the record, and conclude that the evidence outlined above was sufficient to sustain his conviction for less-safe DUI and reckless driving. See OCGA §§ 40-6-391 (a) (1) (defining less-safe DUI as “driving] or be[ing] in actual physical control of any moving vehicle while [ujnder the influence of alcohol to the extent that it is less safe for the person to drive”); 40-6-390 (a) (defining reckless driving as “driving] any vehicle in reckless disregard for the safety of persons or property”); Putman v. State, 257 Ga. App. 902, 904 (1) (b) (572 SE2d 412) (2002) (whether the State has proven criminal negligence amounting to reckless driving is “a jury question”) (footnote omitted).

2. In his only assertion of error, Sachtjen argues that the trial court erred when it refused to give the instruction transcribed above. Specifically, Sachtjen asserts that “when [a police] officer fails to use ... equipment he was given through tax payer [sic] money or fails to preserve any recording made, that should raise a presumption,” akin to the spoliation presumption sometimes applicable in civil cases, that the information on the audio recording would have been favorable to the defense.

We review a trial court’s refusal to give a requested jury charge only for an abuse of discretion. Turner v. State, 314 Ga. App. 263-264 (1) (724 SE2d 6) (2012). “A refusal to give a requested jury charge is not error unless the request is entirely correct and accurate; is adjusted to the pleadings, law, and evidence; and is not otherwise covered in the general charge.” Id. at 264 (1) (punctuation and footnote omitted).

As a preliminary matter, we note that Sachtjen does not cite any arguably relevant provisions of the procedures governing discovery in criminal proceedings, OCGA § 17-16-1 et seq., concerning any failure to produce existing written or recorded statements for use by the defense. See, e.g., OCGA § 17-16-4 (a) (1) (providing for disclosure of “any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the state or prosecution”). Here, the State produced the evidence it had, including the videotape of Sachtjen’s arrest, and there is no evidence that the State failed to preserve or produce any evidence that previously existed in the case. Because this record does not support the giving of any charge as to any failure to preserve evidence that never came into existence, the trial court did not abuse its discretion in failing to give Sachtjen’s requested charge. Revere v. State, 277 Ga. App. 393, 395 (2) (626 SE2d 585) (2006) (trial court did not err in refusing to give requested charges when these charges were “not adequately adjusted to the evidence”); Lustre-Diaz v. Etheridge, 309 Ga. App. 104, 107 (709 SE2d 309) (2011) (when some evidence supported a trial court’s finding that photographs allegedly spoliated were never in defendants’ possession, the court’s denial of a remedy for the alleged spoliation was not an abuse of discretion).

As Sachtjen concedes, moreover, we have not seen any Georgia law suggesting that a spoliation presumption could apply to criminal proceedings, and Sachtjen has failed to explain how any other legal authority dictates or suggests the result for which he argues. In the absence of any Georgia law to the effect that a trial court might be required to charge a jury deliberating on criminal charges as to any spoliation presumption, Sachtjen has not shown that the trial court abused its discretion when it denied his request so to charge this jury. Pacheco v. Regal Cinemas, 311 Ga. App. 224, 225-226 (1) (b) (715 SE2d 728) (2011) (in the absence of legal authority supporting defendant’s theory of a requested spoliation charge, a trial court did not abuse its discretion in refusing the request).

Decided March 9, 2017.

The Merchant Law Firm, Ashleigh B. Merchant, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

       See, e.g., Phillips v. Harmon, 297 Ga. 386, 396 (II) (774 SE2d 596) (2015) (“the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party”) (citations omitted).

       Further, one of the two cases Sachtjen cites on civil spoliation has been explicitly overruled by our Supreme Court. Clayton County v. Austin-Powell, 321 Ga. App. 12 (740 SE2d 831) (2013), overruled by Phillips, 297 Ga. at 398, n. 10.


author: McFADDEN, Presiding Judge.

text:
    A16A1977.
    THE MASHBURN FAMILY TRUSTS v. CITY OF CUMMING et al.
    (797 SE2d 925)
   McFADDEN, Presiding Judge.

This case involves a superior court order dismissing an appeal from a zoning board decision on multiple grounds, including mootness. Because the superior court correctly ruled that the underlying matter is moot, we affirm.

This action arose out of a stop work order issued by the city of Cumming, Georgia, against the Marcus Mashburn, Jr., and Alice S. Mashburn Family Trusts. The trusts had obtained a land disturbing activity permit from the city to remediate an area where a dam had breached. The trusts began demolition work on the site pursuant to the permit on June 16,2014. On June 23,2014, there was a heavy rain at the site. The next day, June 24, 2014, the city issued a stop work order due to the release of sediment into the water. The city lifted the stop work order six days later on June 30, 2014, and the trusts continued and completed the demolition work.

More than three weeks after the stop work order had been lifted, on July 23, 2014, the trusts appealed the decision to issue the stop work order to the city’s zoning board. The board denied the appeal, and the trusts appealed that denial to the superior court. The city moved to dismiss the appeal. After a hearing on August 7, 2015, the superior court granted the motion to dismiss on multiple grounds, including a finding that since the stop work order had been lifted and the demolition work completed, the matter is moot. This court granted the trusts’ application for discretionary review, and this appeal followed. Having now reviewed the full record, we find that the trial court correctly dismissed the appeal as moot.

Decided March 9, 2017.

Carvalho & Associates, Michael P. Carvalho, Jennifer L. Pennington, for appellant.

Miles Hansford & Tallant, DanaB. Miles, Kevin J. Tallant, Molly M. Anderson, for appellees.

An appeal is subject to dismissal when the questions presented are moot. See OCGA § 5-6-48 (b) (3). Mootness results “if the rights insisted upon could not be enforced by a judicial determination.” Randolph County v. Johnson, 282 Ga. 160 (1) (646 SE2d 261) (2007). A matter is also moot if a ruling would have no practical effect on the alleged controversy. Carlock v. Kmart Corp., 227 Ga. App. 356, 361 (3) (a) (489 SE2d 99) (1997). Here, the stop work order was lifted on June 30, 2014, and the demolition work is complete. Moreover, the trusts did not seek damages and instead sought to have the stop work order rescinded, which has already occurred through the lifting of the order. See Cotton v. First Nat. Bank of Gwinnett County, 235 Ga. 511, 512 (220 SE2d 132) (1975) (issue moot where relief sought by plaintiffs has already taken place). Although a matter will not be deemed moot if a party will face adverse collateral consequences that will plague the affected party, the trusts have not made a sufficient showing that they will suffer such consequences from the issuance of the stop work order. See In the Interest of I. S., 278 Ga. 859, 862 (607 SE2d 546) (2005) (appellants failed to show adverse collateral consequences on the record); In the Interest of J. R. P., 287 Ga. App. 621, 623 (1) (652 SE2d 206) (2007) (accord). Because the superior court correctly found that the matter is moot, we must affirm its order of dismissal. McAuley v. Wills, 164 Ga. App. 812 (1) (298 SE2d 594) (1982) (“[I]f the court is right for any reason in its order of dismissal, we will affirm.”).

Judgment affirmed.

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


author: McMlLLIAN, Judge.

text:
    A16A2069, A16A2070.
    CAMELOT CLUB CONDOMINIUM ASSOCIATION, INC. v. AFARI-OPOKU; and vice versa.
    (798 SE2d 241)
   McMlLLIAN, Judge.

After Emmanuel Afari-Opoku was murdered in the parking lot of his gated community, his surviving spouse Georgina Afari-Opoku sued the condominium complex and the security firm that it hired for negligence in failing to keep the premises safe. The matter proceeded to trial against Camelot Club Condominium Association, Inc. (“Camelot”), and Alliance Security & Protective Services, LLC (“Alliance”), and a jury found that Georgina, as the surviving spouse of and as personal representative of Emmanuel’s estate, had suffered $3,250,000 in damages arising from her husband’s wrongful death. The jury apportioned 25% of the fault for Emmanuel’s death against Camelot, 25% against Alliance, and the remainder against non-parties Anthony Norris (15%), Tariq Smith (15%), andTefflon Rhoden (20%) (referred to collectively herein as the “Assailants”). The parties subsequently filed post-trial motions and briefs addressing the issue of apportionment between Camelot and Alliance. Following a hearing, the trial court issued judgment in the amount of $1,625,000 against Camelot, which “constitute[d] the 25% fault the jury assigned to Camelot plus the 25% fault the jury assigned to Alliance,” and the amount of $812,500 against Alliance representing the 25% fault the jury assigned to it.

In Case No. A16A2069, Camelot appeals the trial court’s denial of its motion for directed verdict at trial, as well as the trial court’s judgment finding Camelot liable for Alliance’s share of fault. In Case No. A16A2070, Georgina cross-appeals the trial court’s denial of her pretrial motion in limine to preclude Camelot from arguing that it is not legally responsible for the conduct of Alliance and its security guard employee, and further appeals the denial of her trial motion to “disallow any apportionment [by the jury] of fault, liability or damages between Alliance . . . and Camelot.”

Construed in support of the jury’s verdict, the record shows that Camelot is the owner of the common areas of the Camelot Club Condominiums in College Park (“Camelot Club”). Beginning in 2009, the Camelot board became concerned about the level of crime in and around the gated community and began to take measures to increase security In August 2010, the board hired Alliance to provide 24/7 security at the front gate.

On October 12, 2010, Emmanuel, a Camelot Club resident, purchased electronics from Smith in a parking lot on Campbellton Road. After the transaction, Smith and a companion contacted Norris and Rhoden regarding Emmanuel, and the three met up in the parking lot. Although Norris suggested robbing Emmanuel there, the three men decided to follow him instead. Emmanuel stopped at a gas station on his way home, and the Assailants stopped in a parking lot across the street. They discussed robbing Emmanuel at this location and taking his car, but they opted to follow him home. After trailing Emmanuel for around 20 miles, they arrived at Camelot Club. There, the security guard let them in, allowing their car to drive through the security gates and the security arm without questioning them. The men followed Emmanuel to his condominium unit, and during an attempt to rob him, Rhoden shot Emmanuel, who later died from his injuries.

Georgina filed suit against Alliance and “ABC Corporation” on February 25, 2012, alleging that they had undertaken and breached a duty to provide security for the residents and invitees of Camelot Club. She subsequently amended the complaint to replace “ABC Corporation” with Camelot and Homeside Properties, Inc. as named defendants, and to spell out claims for negligence under OCGA § 51-3-1 and the Restatement of Torts (Second) § 324A and nuisance under OCGA § 41-1-1 et seq.

Directed Verdict

1. Camelot argues that the trial court erred in denying its motion for directed verdict because the evidence showed that Camelot did not breach any duty to Emmanuel and no evidence existed that it had created a nuisance on the property. “The standard of appellate review of a trial court’s denial of a motion for a directed verdict is the any evidence test.” (Citation and punctuation omitted.) Doherty v. Brown, 339 Ga. App. 567, 573 (2) (794 SE2d 217) (2016). Moreover, “[i]n considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion.” (Citation and punctuation omitted.) Chrysler Group, LLC v. Walden, 339 Ga. App. 733, 735-36 (1) (792 SE2d 754) (2016). We review any pure questions of law de novo. Brown v. Tucker, 337 Ga. App. 704, 720 (8) (788 SE2d 810) (2016).

(a) Premises Liability — Camelot asserts that Georgina failed to show that it breached any duty under OCGA § 51-3-1, because the evidence does not demonstrate that the crime in this case was foreseeable or that Camelot had superior knowledge of the risk that caused Emmanuel’s death.

Under OCGA § 51-3-1,

[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

“Although a landowner has a duty to invitees to exercise ordinary care to keep its premises safe . . ., the landowner is not an insurer of an invitee’s safety” Agnes Scott College v. Clark, 273 Ga. App. 619, 621 (1) (616 SE2d 468) (2005). See also Sipple v. Newman, 313 Ga. App. 688, 690 (722 SE2d348) (2012). In order to recover on a premises liability claim, a plaintiff must show “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-49 (2) (b) (493 SE2d 403) (1997).

(i) Foreseeability —An intervening criminal act by a third party generally “insulates a landowner from liability unless such criminal act was reasonably foreseeable.” Clark, 273 Ga. App. at 621 (1). See also Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995) (“Simply put, without foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises.”).

In order to be reasonably foreseeable, the criminal act must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers against the risk posed by that type of activity.

(Citation and punctuation omitted.) Ratliff v. McDonald, 326 Ga. App. 306, 312 (2) (a) (756 SE2d 569) (2014).

However, “[w]hile the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical”; rather, such activity “[must] be sufficient to attract the [owner’s] attention to the dangerous condition which resulted in the litigated incident.” (Citation and punctuation omitted.) Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997). “In determining whether previous criminal acts are substantially similar to the occurrence causing harm..., the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” Id. “[T]he question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.” (Citation and punctuation omitted.) Id.

Georgina presented evidence at trial of a number of prior crimes in or near Camelot Club, including, but not limited to, an armed robbery of a Camelot security guard at the front gate in January 2006; a battery and attempted robbery at the front gate in July 2006, which was reported to the security guard on duty; a robbery at gunpoint of a resident’s guest inside the complex in June 2008, which was reported to police and via phone message to Camelot; an attempted armed robbery of a resident inside the complex in June 2008; a robbery of a landscaper on Camelot Club property in September 2008, which was reported to Camelot; and a robbery of a resident in July 2009 after perpetrators drove unchallenged onto the property

Additionally, Camelot’s chief executive officer (“CEO”) testified that Camelot received quarterly reports of criminal activity on the property from police, and he was personally aware of four incidents of armed robbery/aggravated assault on the property between April 2009 and the summer of 2010. He actually witnessed one of these incidents, in which a teenager fired shots at a resident, causing the CEO himself to duck behind a car to avoid being shot. The CEO testified that because Camelot Club had become “quite a bad place,” Camelot hired Alliance, repaired the front gate, and took other security measures to address the situation.

We find that this and other evidence at trial was enough to support a finding by the jury that the prior criminal activity was sufficient to attract Camelot’s attention to the dangerous condition that ultimately resulted in Emmanuel’s murder and thus that the incident was reasonably foreseeable by Camelot. See Sturbridge, 267 Ga. at 786 (evidence of prior burglaries precluded summary judgment on premises liability claim arising out of rape); Double View Ventures, LLC v. Polite, 326 Ga. App. 555, 560 (1) (a) (757 SE2d 172) (2014) (jury question exists for purposes of apportionment of liability of gas station where evidence showed numerous armed robberies and assaults on station property prior to aggravated assault of plaintiff); Bethany Group, LLC v. Grobman, 315 Ga. App. 298, 301 (1) (a) (727 SE2d 147) (2012) (evidence of prior robberies and violence precluded summary judgment on premises liability claim arising out of subsequent murder).

(ii) Superior knowledge—Nevertheless, “[ejven if an intervening criminal act may have been reasonably foreseeable, . . . the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citations, punctuation and emphasis omitted.) Cook v. Micro Craft, Inc., 262 Ga. App. 434, 438 (1) (585 SE2d 628) (2003). See also Travis v. QuikTrip Corp., 339 Ga. App. 551, 553 (1) (794 SE2d 195) (2016) (“[I]t is well settled in Georgia that the fundamental basis for an owner or occupier’s liability is that party’s superior knowledge of the hazard encountered by the plaintiff.”) (citation and punctuation omitted). Therefore, “[a] tenant will be precluded from recovery ... as a matter of law against the landlord when he or she has equal or superior knowledge of the risk and fails to exercise ordinary care for his or her own safety.” Brookview Holdings, LLC v. Suarez, 285 Ga. App. 90, 97-98 (3) (645 SE2d 559) (2007).

Although Camelot contends that the evidence did not support a finding that it had superior knowledge of the risk, it does not argue, and has failed to point us to any evidence in the record indicating, that Emmanuel had any knowledge of prior criminal activity at Camelot Club. Instead, Camelot argues that because the Assailants identified Emmanuel as a potential robbery victim at the parking lot where he purchased the electronics, the condition of Camelot Club property cannot be considered the cause of the crime. Pretermitting whether this argument addresses the issue of superior knowledge, it misapprehends the law in Georgia. The crime does not have to originate on the landowner’s property in order to hold the owner liable. As this Court previously held,

[w]hat matters is the foreseeability of the potential for a criminal act on the premises, even if it began elsewhere. . . . All that is required... is evidence that the particular danger which resulted in the assault on plaintiff... was foreseeable under all the circumstances and that the defendants were negligent in failing to exercise ordinary care to guard against it.

(Citation and punctuation omitted; emphasis omitted and supplied.) McNeal v. Days Inn of America, Inc., 230 Ga. App. 786, 789 (498 SE2d 294) (1998) (denying summary judgment to premises owner on claims by plaintiffs who were attacked in hotel’s parking lot by four men who followed them there from a nearby restaurant). Accordingly, we find ample evidence to support the trial court’s denial of Camelot’s motion for directed verdict.

(b) Nuisance — Camelot asserts that the trial court erred in denying its motion for directed verdict on the nuisance claim, arguing third party crime can only constitute a nuisance if the landowner does nothing to prevent rampant crime on the property whereas in this case Camelot hired Alliance. We disagree and find Bethany, 315 Ga. App. at 301 (1) (a), directly on point.

In Bethany, the plaintiff brought claims for premises liability and private nuisance arising out of the death of her husband, a cab driver who answered a call at an apartment complex managed by the defendant. 315 Ga. App. at 298. The evidence in that case showed the apartment complex had experienced a series of crimes prior to the cab driver’s death. Id. at 299. After noting that nuisance requires evidence that the defendant “created or maintained a continuous or regularly repeated act or condition on the property, which caused [the decedent’s] injury,” the Court held that the “ample evidence of repeated instances of armed robberies at [the complex established] a question of fact as to whether [the defendant] created or maintained a nuisance at the complex,” without addressing the defendant’s action or lack of action to address the problem. (Citations and punctuation omitted.) Id. at 302 (2). Compare Barnes v. St. Stephen’s Missionary Baptist Church, 260 Ga. App. 765, 769 (2) (580 SE2d 587) (2003) (nuisance claim failed where the plaintiff presented no “evidence, other than of her own attack, that the building was currently and regularly being used for criminal activity of the kind that caused her injury”).

Georgina, too, presented ample evidence at trial of prior criminal activities on the premises to support her claim of nuisance. Moreover, Camelot has not identified, and we have not found, any cases requiring a complete lack of action on the part of a property owner in order to establish a claim of nuisance. Accordingly, we find that the trial court properly denied Camelot’s motion for directed verdict on the nuisance claim.

Apportionment

2. Camelot argues that the trial court erred in entering judgment against it based on the fault apportioned to Alliance. Georgina counters that the judgment properly took into account that Camelot is vicariously liable for Alliance’s actions under OCGA § 51-2-5 (4), which imposes liability for an independent contractor’s performance in connection with a statutory duty, such as the duty imposed by OCGA §§ 51-3-1 and 51-2-5 (5) because it maintained or assumed control over the security guard employed by Alliance. In her cross-appeal, Georgina also asserts that the trial court erred in allowing the jury to apportion any fault to Alliance in the first place because OCGA § 51-12-33 (b) does not apply in cases of vicarious liability

(a) Waiver — We first address whether Camelot and Georgina waived the errors that they now assert on appeal. Prior to trial, Georgina filed a motion in limine seeking to prohibit Camelot from denying that it had vicarious liability for the Alliance-employed security guard’s actions in connection with the premises liability claim. At the hearing on the motion, Camelot asserted that it was not arguing as a matter of law that it was not liable for Alliance’s actions because the security company was an independent contractor. Rather, Camelot argued that because Alliance was a named party, the jury should be entitled to apportion fault to it. In fact, Camelot asserted that the jury could properly return a verdict apportioning 100 percent fault to Alliance. The trial court denied the motion in limine.

Georgina raised the issue of vicarious liability again at trial by moving to disallow any apportionment of fault, liability, or damages between Camelot and Alliance. Camelot’s counsel countered, however, that an independent claim existed against Alliance for negligence, for which Camelot would have no vicarious liability He argued that even if Georgina had not asserted a specific claim other than premises liability and nuisance, Camelot was free to argue alternative bases for finding Alliance independently liable. The trial court did not rule on this motion, because Georgina’s counsel eventually agreed to a verdict form submitting the issue of apportionment to the jury.

Based on this record, we find that even if Camelot waived any argument that it is not liable under OCGA § 51-2-5 (4) for Alliance’s actions on the statutory premises liability claim, it did not waive the issue ofvicarious liability under OCGA § 51-2-5 (5). Camelot argued that the evidence did not support a finding that it had the requisite control under that provision to impose liability for Alliance’s actions, and significantly, Camelot asserted that the evidence supported a separate and independent claim of negligence against Alliance as a party to this case. Therefore, we will consider Camelot’s argument that the trial court erred in charging it with Alliance’s portion of the jury award.

We reach the opposite conclusion as to Georgina’s appeal from the denial of her motion at trial to disallow apportionment by the jury between Camelot and Alliance because Georgina’s counsel ultimately agreed to the verdict form allowing apportionment. See McKissick v. Aydelott, 307 Ga. App. 688, 692 (1) (705 SE2d 897) (2011) (“[A] litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.”). See Christie v. Rainmaster Irrigation, Inc., 299 Ga. App. 383, 391 (6) (b) (682 SE2d 687) (2009). However, we will consider and address Georgina’s arguments in the context of Camelot’s appeal on the apportionment issues.

(b) Vicarious liability and apportionment — Turning to the issue of whether the trial court properly entered judgment against Camelot based on the fault assigned to Alliance, we first consider the language of the apportionment statute, OCGA § 51-12-33. Subsection (b) is the operative provision because this “action [was] brought against more than one person for injury to person or property.” In that event, the

trier of fact, in its determination of the total amount of damages to be awarded, if any, shall. . . apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(Emphasis supplied.) This provision addresses liability, not merely fault, and by defining the liability of each person against whom damages are awarded and prohibiting joint liability, it seems generally to preclude any post-verdict reassignment of damages based on the jury’s apportionment of fault.

Nevertheless, Georgina asserts that the post-verdict reassignment of damages was required because the apportionment statute does not apply to claims of vicarious liability, citing this Court’s opinion in PN Express, Inc. v. Zegel, 304 Ga. App. 672 (697 SE2d 226) (2010). In that case, the trial court declined a trucking company’s request to charge the jury on apportionment of damages as between it and a third party, finding that the claims against the trucking company were based on derivative liability Id. at 680 (5). This Court affirmed, holding that “unless additional and independent acts of negligence over and above those alleged against the servant or employee are alleged against the employer, a verdict exonerating the employee also exonerates the employer.” (Citation and punctuation omitted.) Id. That is because “[generally, where a party’s liability is solely vicarious, that party and the actively-negligent tortfeasor are regarded as a single tortfeasor.” (Emphasis supplied.) Id.

The question then is whether Georgina asserted claims against Camelot and Alliance that were solely vicarious in nature or whether there were additional and independent acts of negligence alleged against Alliance. Georgina’s amended complaint in this case alleged negligence for failure to provide adequate security and in failing to keep the premises safe against the Assailants without specifying the theories against each defendant and also asserted nuisance against Camelot and Homeside Properties. Likewise, the consolidated pretrial order listed Alliance as a party with a right to participate in the trial and described the claims against the defendants collectively as failing to provide adequate security, failing to keep the premises safe, and maintaining a private nuisance. At trial, the jury was charged on the principles of common law negligence and undertaking a duty without specifying the theories of liability against the defendants, as well as nuisance. The jury was also generally charged on vicarious liability principles, and specifically that:

Defendant, Camelot Club, the employer of independent contractors is liable for the acts and omissions of such independent contractor when the duty is imposedby statute. In this case the law imposes a personal and nondelegable duty upon defendant Camelot to use ordinary care to keep its premises and approaches safe.

We agree with Georgina that with respect to the premises liability claim, an owner or occupier’s duties to keep the premises and approaches safe are statutorily delineated under OCGA § 51-3-1 and that those “duties are non-delegable even though the owner has a contract for another party to provide [the work].” (Citations and punctuation omitted.) Johnson v. Kimberly Clark, 233 Ga. App. 508, 510 (504 SE2d 536) (1998). Moreover, under OCGA § 51-2-5 (4), “[a]n employer is liable for the negligence of a contractor . . . [i]f the wrongful act is the violation of a duty imposed by statute[.]” Therefore, if the wrongful act were found to be a violation of Camelot’s non-delegable, statutory duty, any negligence on the part of Alliance would be charged to Camelot, and Camelot would be vicariously liable for Alliance’s actions. See Millard v. AAA Elec. Contractors & Engineers, Inc., 119 Ga. App. 548, 556 (3) (167 SE2d 679) (1969) (construing former version of OCGA § 51-3-1). See also Lewis v. Nicholas Financial, Inc., 300 Ga. App. 888, 889-90 (1) (686 SE2d 468) (2009) (construing non-delegable duty to repossess automobiles without a breach of the peace under OCGA § 11-9-609 (b) (2)).

However, neither common law negligence nor nuisance implicates a statutory duty Although the General Assembly has passed laws addressing nuisance, OCGA § 41-1-1 et seq., such claims arise from the common law. See State of Ga. v. Ball Investment Co., 191 Ga. 382, 389 (2) (12 SE2d 574) (1940) (statutory definition of nuisance “was not intended to change the common-law definition of a nuisance”). Nuisance requires proof that a defendant “created or maintained a continuous or regularly repeated act or condition on the property,” which led to the plaintiff’s injury. (Citations and punctuation omitted.) Bethany, 315 Ga. App. at 302 (2). Here, the evidence showed a series of crimes on the Camelot Club property dating back to at least January 2006, over four years before Camelot hired Alliance to provide security for the property. Therefore, the jury could have found nuisance liability arising from Camelot’s actions, without regard to any actions by Alliance, and no issue of vicarious liability would arise in that circumstance.

Likewise, the jury could have imposed liability on Alliance independently for common law negligence arising out of its assumption of the duty to provide security. See Kelley v. Piggly Wiggly Southern, Inc., 230 Ga. App. 508, 509 (1) (496 SE2d 732) (1997) (even though the independent contractor may have no liability under OCGA § 51-3-1, it could breach an independent duty of failing to perform its work properly); FPI Atlanta, LP v. Seaton, 240 Ga. App. 880, 890 (524 SE2d 524) (1999) (physical precedent only) (Pope, J., concurring specially) (same). Thus, based on the jury instructions provided, the jury could have found liability because of Camelot’s negligence (premises liability and common law negligence), Camelot’s maintenance of a nuisance, Alliance’s negligence in providing security, or some combination of these based on vicarious liability principles.

The closing argument of Georgina’s counsel outlined the options available to the jury. Counsel told the jury that if they “put anything less than 100 percent next to Camelot Club, then those damages numbers are going to be reduced to that percentage. That’s how the law works, and that’s why they’re on the verdict form.” Significantly, with respect to the relationship between Alliance and Camelot, counsel argued:

[W]e think Alliance and Camelot are one in the same, but they want you to consider putting a number by them. That’s why they’re broken out here. They’re jointly responsible. They’re jointly liable under the law. But if you can think of some way to separate out the wrongful conduct and those two parties, that’s your prerogative.

Decided March 9, 2017

(Emphasis supplied.)

We cannot determine from the general verdict which of Georgina’s claims the jury, in its prerogative, based its award. See Wolff v. Middlebrooks, 256 Ga. App. 268, 271 (3) (568 SE2d 88) (2002) (court cannot determine claim upon which the jury imposed liability from a general verdict); Crawford v. Johnson, 227 Ga. App. 548, 550 (1) (489 SE2d 552) (1997) (same). It is entirely possible that the jury did not base its verdict on a breach of Camelot’s duty of care under OCGA § 51-3-1. Instead, the jury may have imposed fault on Camelot based strictly on a theory of nuisance, and the imposition of fault on Alliance under common law negligence could be completely independent of, and not imputable to, Camelot. See Crawford, 227 Ga. App. at 550 (1) (court could not determine liability for contribution or indemnity from general verdict where only some, but not all, of claims asserted would support such an award).

Therefore, we find that the trial court erred in imposing liability on Camelot for Alliance’s share of fault. “The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.” (Citation omitted.) Harris v. Hitt, 306 Ga. App. 377, 378 (1) (702 SE2d 707) (2010). See also Kerr v. Callaway, 102 Ga. App. 653, 653 (2) (117 SE2d 243) (1960) (“There is a duty to uphold the verdict if it can be supported by any reasonable view by the evidence.”).

Accordingly, we vacate the portion of the trial court’s judgment imposing vicarious liability on Camelot, and we remand this case for the trial court to enter judgment in accordance with the jury’s verdict.

Judgment affirmed in part and vacated in part, and case remanded with direction in Case No. Al 6A2069. Judgment affirmed in Case No.

A16A2070.

Barnes, P. J., and McFadden, P. J., concur.

Dentons US, J. Randolph Evans, J. Stephen Berry, D. Austin Bersinger, Kathryn M. Guinn; Freeman Mathis Gary, Sun S. Choy, Wayne S. Melnick, Jacob E. Daly, for appellant.

Bondurant Mixson & Elmore, Michael B. Terry, Naveen Rama-chandrappa; Deitch & Rogers, Gilbert H. Deitch, Andrew T. Rogers; Shiver Hamilton, Jeffrey P. Shiver, Alan J. Hamilton, for appellee.

Georgia Defense Lawyers Association, Martin A. Levinson, Camille A. Smith, amici curiae.

       The last name of Georgina and her deceased husband Emmanuel is actually Opoku-Afari, and not Afari-Opoku. However, the complaint in this case originally identified the Appellee/Cross-Appellant andher husband as Georgina and Emmanuel Afari-Opoku. Although the trial court signed an order on October 27, 2014 to correct this misnomer and to change the style of this case to reflect the plaintiff’s true name, the parties did not adopt this change in their subsequent filings in the trial court or in this Court. Accordingly, we will use the misnomer in this opinion for consistency, and to avoid any confusion we respectfully refer to the Appellee/Cross-Appellant and her husband by their first names.

       See Harris v. Tutt, 306 Ga. App. 377, 378 (1) (702 SE2d 707) (2010) (on appeal, evidence must be construed to uphold the verdict).

       Alliance did not participate in the litigation of the case or the trial.

       Georgina settled her claims against Homeside Properties, Inc. Neither Homeside Properties nor Alliance is a party to this appeal.

       Georgina asserts that Camelot waived its appellate arguments regarding the denial of its motion for directed verdict because it did not assert the same arguments at trial in support of the motion. We find no waiver.

       We note, however, Norris testified that although the three Assailants considered robbing Emmanuel at the parking lot and at the gas station, they decided against it because other people were present in these locales. In contrast, Camelot Club provided a better opportunity because it was not as wide open for witnesses to see the crime.

       The cases cited by Camelot to support this argument are inapposite as they involve cases in which the plaintiffs had a prior personal relationship with their attackers and knew of a specific threat posed by them. See, e.g., Ratliff, 326 Ga. App. at 306; Hembree v. Spivey, 281 Ga. App. 693 (637 SE2d 94) (2006); Cook, 262 Ga. App. at 435; Johnson v. Holiday Food Stores, Inc., 238 Ga. App. 822 (520 SE2d 502) (1999); Griffin v. AAA Auto Club South, Inc., 221 Ga. App. 1 (470 SE2d 474) (1996). Although Emmanuel had engaged in prior business dealings with one of the Assailants, the evidence indicated that he did not know the other two, and Camelot has pointed us to no evidence showing Emmanuel was aware of or had reason to suspect that any of the three posed a threat.

       OCGA § 51-2-5 reads in pertinent part:
      An employer is liable for the negligence of a contractor:

      (4) If the wrongful act is the violation of a duty imposed by statute; [or]
      (5) If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference!.]

       Camelot asserted post-trial that this statement was confined to the premises liability claim, and indeed Georgina’s motion in limine addressed only premises liability.

       Thus, even if the trial court abused its discretion in denying Georgina’s motion in limine to exclude argument on vicarious liability as to the premises liability claim, the vicarious liability under OCGA § 51-2-5 (5) remained at issue. See Chrysler Group, 339 Ga. App. at 745 (7) (abuse of discretion standard for motions in limine).

       OCGA § 51-12-33 (a) applies when an action is brought against one or more persons and the plaintiff is to some degree responsible for the injury or damages. Although Camelot argued at trial that Emmanuel should be put on the verdict form for apportionment purposes, the trial court denied that request, and Camelot has not asserted that issue on appeal.

       The verdict simply stated that the jury found for Georgina and awarded $1,250,000 to her as the personal representative for Emmanuel’s estate and $2,000,000 for the full value of Emmanuel’s life, before allocating fault.

       Even though we found in Division 1 (b) that the evidence supported a finding that Emmanuel’s death was reasonably foreseeable based on prior criminal activity on the property, the jury may not have reached such a conclusion.


text:
    A16A2201.
    CITY OF STONE MOUNTAIN v. BLACK et al.
    (797 SE2d 927)
   McFADDEN, Presiding Judge.

We granted the city of Stone Mountain’s application for interlocutory appeal in this nuisance action to address a damages issue. The plaintiffs seek damages for the diminution in value of their house resulting from the stigma of it having been flooded by a nuisance allegedly caused by the city. The city argues that the plaintiffs cannot recover stigma damages because damages for a diminution in value are available only in cases involving permanent nuisances while this case involves an abatable nuisance. We disagree and so affirm the trial court’s denial of the city’s motion for summary judgment on the issue.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts warrant judgment as a matter of law. The grant of a motion for summary judgment is reviewed de novo, and the evidence and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmovant.

De Castro v. Durrell, 295 Ga. App. 194, 195 (671 SE2d 244) (2008) (citations omitted). The facts relevant to this appeal are largely undisputed. William and Pamela Black sued the city of Stone Mountain, alleging that its failure to maintain the sewer and storm water drainage system resulted in flooding of the Blacks’ house. They sought damages for, among other things, the loss of rental value for the repetitive flooding while living in their house, the cost of repairing their house’s foundation, and the diminution in value from the stigma that still exists even though the repairs have been completed. The city moved for summary judgment on the Blacks’ claim for damages for diminution in value from stigma. The trial court denied the motion, and after we granted the city’s application for interlocutory appeal, this appeal followed.

The city argues that a plaintiff may recover damages for the diminution in a property’s fair market value only in permanent nuisance cases; that in abatable nuisance cases, a plaintiff may recover lost rental value plus actual damages; and that claims for lost rental value and diminution in fair market value are mutually exclusive.

But although an injured party “cannot recover twice for the same injury,” Toyo Tire North America Mfg. v. Davis, 299 Ga. 155, 163 (3) (787 SE2d 171) (2016) (citations omitted), an award of damages in cases involving real property “is intended to place an injured party, as nearly as possible, in the same position it would have been if the injury had never occurred.” Royal Capital Dev. v. Maryland Cas. Co., 291 Ga. 262, 264 (1) (728 SE2d 234) (2012). Our courts have “long considered diminution in value to be an element in determining the proper measure of damages to real property.” Id. at 264-265 (1). This is because “recognition of diminution in value as an element of loss to be recovered on the same basis as other elements of loss merely reflects economic reality” Id. at 264 (1) (citation and punctuation omitted).

Our Supreme Court has implied that stigma damages are available in abatable nuisance cases. In Royal Capital, that court disapproved our decision in City of Atlanta v. Broadnax, 285 Ga. App. 430, 438 (4) (646 SE2d 279) (2007) — an abatable nuisance case involving flooding — to the extent we held that the plaintiffs were not entitled to recover damages for both the diminution in the value of their property due to stigma and the costs of repair. Royal Capital, 291 Ga. at 265-266 (2). The Supreme Court held that Georgia law does not “preclude[ ] a diminution in value award in addition to restoration and repair costs where the repair does not fully restore the property to its pre-damage value” nor does it provide per se that “stigma damages to property would constitute an impermissible double recovery.” Id. at 266 (2) (punctuation omitted). The Supreme Court did not expressly address the fact that Broadnax was an abatable nuisance case, but that fact was unimportant in the context of the primary holding that spoke generally to the measure of damages in cases involving real property See id. at 263.

Here, the city argues that an award of both diminution-in-rental-value damages — as opposed to the cost-of-repair damages at issue in Broadnax—and stigma damages would amount to a double recovery So the question is whether these categories of damages seek to compensate the same injury. See Toyo Tire, 299 Ga. at 164-165 (3). “ [T] he diminution in a property’s rental value isa way to measure the discomforts to which its use has been subjected during [the] period [the nuisance continues].” Toyo Tire, 299 Ga. at 164 (3) (citation and punctuation omitted). Diminution-in-value stigma damages seek to compensate the injured party for the loss in value when “the repair does not fully restore the property to its pre-damage value.” Royal Capital, 291 Ga. at 266 (2). Such damages are available when, “notwithstanding remedial measures undertaken by the injured party, there remains a diminution in value of the property, and an award of only the costs of remedying the defects will not fully compensate the injured party.” Id. at 265 (1) (citation omitted). The two categories of damages compensate different injuries.

Decided March 9, 2017

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, Amy B. Cowan, for appellant.

Larry E. Stewart & Associates, Larry E. Stewart, for appellees.

In the instant case, “the alleged discomfort and annoyance experienced by the” Blacks — represented by damages for diminution in the property’s rental value — “and the alleged diminution in their property’s fair market value” — represented by stigma damages — “are two separate injuries that cannot be fixed by one recovery.” Toyo Tire, 299 Ga. at 164-165 (3). See also Swift v. Broyles, 115 Ga. 885, 887-890 (42 SE 277) (1902) (explaining that the plaintiff could recover for all permanent injuries to his estate and for past discomfort and annoyance caused by the nuisance but could not recover both for “the diminution of rental value of the premises during a time when they were occupied by plaintiff himself” and for “the physical discomforts and pain of plaintiff and his family during the same period”).

The city cites City of Warner Robins v. Holt, 220 Ga. App. 794 (470 SE2d 238) (1996), for a blanket prohibition on the award of damages for both loss of rental value and loss of fair market value. But Holt simply stands for the proposition that a plaintiff cannot recover damages for both an abatable nuisance and a permanent nuisance. Id. at 796-797 (2). And Holt is distinguishable because stigma damages were not at issue there.

For these reasons, we affirm the trial court’s denial of the city’s motion for summary judgment on the Blacks’ claim for stigma damages.

Judgment affirmed.

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


text:
    A16A1491.
    TOOLE v. THE STATE.
    (798 SE2d 288)
   McMlLLIAN, Judge.

Kenneth Toole appeals the trial court’s denial of his motion to suppress on the ground that police lacked reasonable, articulable suspicion to justify a traffic stop of his vehicle. We disagree and affirm.

In Hughes v. State, 296 Ga. 744 (770 SE2d 636) (2015), our Supreme Court explained what standard of review appellate courts should apply when reviewing the denial of a motion to suppress. As an overarching principle, “[w]hen the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.” Id. at 746 (1). From this principle, the Court identified three corollaries:

First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

(Citations and footnotes omitted.) Id.

So viewed, the record reveals that on March 26, 2015, Officer Timothy Charles Scott of the Douglas County Sheriff’s Office was on duty and monitoring traffic on Interstate 20 (“1-20”). As Officer Scott was traveling in the middle lane of the three-lane eastbound side of the Interstate, he saw Toole’s car in his rear view mirror in the left passing lane traveling at what appeared to be around 65 mph, five miles below the posted maximum speed limit of 70 mph. He could also see traffic stacking up behind the car and other cars passing it in the middle lane. As the officer slowed his patrol car, Toole stayed in the left lane and passed him. Although the middle and right lanes were open, Toole made no attempt to move to the right although he could have safely done so. The officer gauged Toole’s speed to be 68 mph at the time he passed the patrol car. Officer Scott testified that he believed that the vehicle was in violation of two Georgia statutes, OCGA §§ 40-6-40 and 40-6-184, because the car was traveling below the maximum speed but not staying to the right. As a result, the car was holding up traffic, forcing other drivers to pass on the right. Based on these observations, the officer initiated a traffic stop.

Officer Scott subsequently issued Toole traffic citations for violating OCGA § 40-6-40 (b) for failing to drive on the right side of the roadway and OCGA § 40-5-121 for driving with a suspended license. A subsequent accusation charged Toole with those two violations, as well as possession of less than an ounce of marijuana under OCGA § 16-13-30 (j) and possession of drug-related objects under OCGA § 16-13-32.2. Toole filed a motion to suppress, seeking to exclude any evidence obtained as a result of the traffic stop on the ground that Officer Scott lacked a sufficient basis to stop his vehicle. The trial court denied the motion to suppress, finding that the officer believed in good faith that a traffic violation occurred even though the trial court found that as a matter of law there was no actual violation. This appeal followed.

“For a traffic stop to be valid, an officer must identify specific and articulable facts that provide a reasonable suspicion that the individual being stopped is engaged in criminal activity.” (Citations omitted.) Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). “This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citation and punctuation omitted.) State v. Melanson, 291 Ga. App. 853, 854 (663 SE2d 280) (2008). However, a police officer is not required “[to] know with certainty that each element of a particular crime could be established.” (Citation and punctuation omitted.) State v. Zeth, 320 Ga. App. 140, 141 (739 SE2d 443) (2013). Rather,

[i]f the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute.

(Citation and punctuation omitted.) Id. at 141-42.

OCGA § 40-6-40 (b) provides:
Upon all roadways, any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.

Here, the officer testified that Toole’s car was traveling below the posted speed limit in the left passing lane, even when it was not “overtaking and passing another vehicle” and not “preparing for a left turn at an intersection or into a private road or driveway” From these facts, the officer formed the belief that Toole had violated OCGA § 40-6-40 (b). We find that under the facts and circumstances of this case as testified to by the officer and applying the proper standard of review, the officer identified specific and articulable facts supporting a reasonable suspicion that Toole had violated OCGA § 40-6-40 (b).

Although the trial court found that no violation of OCGA § 40-6-40 had occurred based on a technical reading of the statute, it upheld the traffic stop based on Officer Scott’s good faith belief that such a violation had occurred. The trial court found “no evidence that [Officer Scott’s] beliefs were anything but bona fide,” and “it was for the trial court, sitting as finder of fact, to gauge the credibility of the officer’s testimony that he observed [Toole] commit a traffic violation.” (Citation and punctuation omitted.) Shell v. State, 315 Ga. App. 628, 630 (1) (727 SE2d 243) (2012).

Toole does not contest these findings, urging instead for us to apply the reasoning in State v. Parke, 304 Ga. App. 124, 127 (695 SE2d 413) (2010) and State v. Whelchel, 269 Ga. App. 314, 316 (604 SE2d 200) (2004). Each of those cases is factually similar in that each involves a driver traveling slightly below the speed limit with traffic behind them. Parke, 304 Ga. App. at 125 (driver traveling 48 mph in left lane of a 55- to 65-mph speed zone); Whelchel, 269 Ga. App. at 314 (driver traveling 60 mph in left lane of a 70-mph speed zone). But both Parke and Whelchel are materially distinguishable because both appeals were from the granting of the defendants’ motion to suppress and dealt with violations of OCGA § 40-6-184, not OCGA § 40-6-40. On this denial of a motion to suppress, we must construe the facts to uphold the trial court’s judgment. See Hughes, 296 Ga. at 746 (1). Accordingly, applying the appropriate standard of review, we cannot say under these circumstances that the trial court erred in denying Toole’s motion to suppress.

Decided March 10, 2017.

James K. Luttrell, for appellant.

Matthew C. Krull, Solicitor-General, David Holmes, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Miller, P. J., and McFadden, P. J., concur.

       Although the State introduced a copy of the traffic stop video at the motion hearing as State’s Exhibit 1, the first copy transmitted in the record was blank. This Court asked for and received from the trial court clerk another copy of the exhibit. The second copy appeared to have data transferred onto the disk, but it would not play. Therefore, we were unable to consider the video evidence on appeal. We take this opportunity to remind counsel that appellant, and not this Court, bears the burden of ensuring that the record is complete on appeal. Janasik v. State, 323 Ga. App. 545, 553 (4) (a) n.3 (746 SE2d 208) (2013).

       Although Toole makes much of the fact that the officer testified that Toole was traveling only two miles below the speed limit, the statute does not speak in terms of posted speed limits but rather addresses vehicles traveling “at less than the normal speed of traffic at the time and place and under the conditions then existing” and requires such vehicles to keep to the right.

       Toole was not charged with a violation of OCGA § 40-6-184 in this case, but the State argued at the motion to suppress hearing that a violation of this statute was grounds for the traffic stop. However, we need not address the application of that statute here as we have found that Officer Scott’s good faith belief that Toole had violated OCGA § 40-6-40 was sufficient to support the traffic stop.