author: RAY, Judge.

text:
    A13A1052.
    NEWSOME v. THE STATE.
    (751 SE2d 474)
   RAY, Judge.

After a jury trial, Mark Newsome was convicted of two counts of aggravated assault (OCGA § 16-5-21), one count of armed robbery (OCGA§ 16-8-41), two counts of false imprisonment (OCGA § 16-5-41), one count of burglary (OCGA § 16-7-1), one count of theft by taking (OCGA § 16-8-2), and one count of possession of a firearm during a felony (OCGA § 16-11-106). Newsome appeals from his convictions and the denial of his motion for a new trial, asserting that the trial court committed the following errors: failing to give requested jury instructions; allowing the jury to rehear a portion of the arresting officer’s testimony; and failing to merge one of his aggravated assault convictions with an armed robbery conviction. For the following reasons, we affirm in part, vacate in part, and remand for resentencing.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the appellant is no longer entitled to the presumption of innocence. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the evidence shows that during the early morning of July 20, 2004, Sharra Henry and her roommate Latasha Arnold were asleep in the bedroom of her home in Palmetto, Georgia. Henry’s three-year-old son was asleep in his room. At about 3:00 a.m., Henry was awakened when her bedroom door was “kicked wide open” by two armed male intruders. One of them held “some type of machine gun... right in [Henry’s] face” and told her and Arnold not to move. The intruders forced the two women to get out of bed and sit in front of the dresser in their bedroom, and told them “to give us, you know, what we had.” At some point a third armed intruder entered the bedroom. Arnold gave one of the intruders about $800 in cash before she was hit across the face with a gun. After pleading with the intruders not to go into her son’s room, one of the intruders kicked Henry in the stomach, “knocking [her] from [her] dresser to the end of the bed.”

Henry and Arnold were taken into the living room while the three intruders ransacked the house. In addition to the cash, the intruders stole necklaces, clothes, a computer, an Xbox, and “just about anything they could put [their] hands on.” The intruders then drove off in Henry’s 2002 Mitsubishi Diamante. Henry immediately got up and ran to the phone to call 911.

Corporal Michael Upshire of the Palmetto Police Department was on patrol on Highway 29 when he heard a be-on-the-lookout call (“BOLO”) for a white Mitsubishi with a certain license plate. A few minutes after hearing the BOLO call, Corporal Upshire saw a car matching the BOLO description and attempted to initiate a stop of the car. As he turned on his lights, the car slowed down; two black males exited and ran into the woods in separate directions. He followed the Mitsubishi’s driver into the woods and radioed for another nearby officer to “go after the passenger.” After a brief chase, Corporal Upshire returned to stop the Mitsubishi “because when they both got out of the car, the car kept going down southbound on Highway 29.” The other officer successfully caught the car’s driver, later identified to be Newsome. The car’s passenger, Newsome’s co-defendant, was apprehended later that day. A subsequent inventory of the Mitsubishi revealed four firearms in the car, including a handgun and a shotgun. Several of the items taken from Henry’s home that morning were also found in the car.

1. Newsome contends that the trial court erred in failing to give the suggested pattern jury instructions on “mere presence” and “mere association.” We disagree.

Newsome argues that the facts of the case warranted both instructions because they were material to his defense strategy, which “was that he was never inside the home and the State failed to present any evidence that directly connected him to either the home or the abandoned vehicle[.]” Newsome contends that because neither the victims nor Corporal Upshire saw his face and because the officer who eventually apprehended and arrested Newsome did not testify at trial, the State’s case against him hinged solely upon his arrest in proximity to Henry’s car and his connection to the co-defendant. Newsome further contends that a “mere association” charge is warranted because his conviction was based upon his relationship with the co-defendant, who was positively connected with the crimes.

“It is, of course, true that mere presence [or] association . . . , without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction.” (Citation and punctuation omitted.) Mattox v. State, 196 Ga. App. 64, 66 (3) (395 SE2d 288) (1990). However, contrary to Newsome’s assertions, there was evidence beyond his mere presence or mere association with the co-defendant connecting him to the crimes. Corporal Upshire testified that he noticed that the driver who escaped from the moving vehicle was wearing the same shirt as Newsome, who was apprehended not long after the police chase began. When taking an inventory of the Mitsubishi, they found weapons consistent with those described by the victims, as well as items stolen during the robbery. See Palmer v. State, 294 Ga. App. 85, 88 (3) (668 SE2d 523) (2008). The rules that mere presence at the scene of a crime or mere association with one associated with the crime are insufficient to convict are

actually a corollary to the requirement that the State prove each element of the offense charged. The trial court here correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence. Under these circumstances, there was no reversible error in the refusal to give the requested charge [s],

(Citation and punctuation omitted.) Id. Accord Muhammad v. State, 243 Ga. 404, 405-406 (1) (254 SE2d 356) (1979). Here, the trial court charged the jury

that the indictment is not evidence of guilt; that the presumption of innocence remains with defendant throughout the trial unless and until overcome by evidence; that the State has the unalterable burden to establish guilt beyond a reasonable doubt; on the credibility of the witnesses and conflicts in the evidence; on the quality of circumstantial evidence to convict; and on parties to a crime.

(Citations omitted.) Kelley v. State, 279 Ga. App. 187, 190 (2) (630 SE2d 783) (2006). In light of the jury instructions taken as a whole, we conclude that the trial court did not err by failing to give a specific jury charge on mere presence or mere association.

2. Newsome argues that the trial court abused its discretion by permitting the jury to rehear selected portions of the testimony of Officer Green, who took Newsome into custody after his capture, after the jury began deliberations. Specifically, Newsome contends that the trial court prejudiced him by highlighting select portions of an officer’s testimony emphasizing facts harmful to him without placing them in context. We disagree.

During deliberations, the jury sent a note to the trial court asking to “see Officer Green’s testimony.” After being instructed to narrow the scope of their request, the jury foreperson explained that the jury was interested in rehearing Officer Green’s testimony related to the time of his arrival at the crime scene. After taking the jurors’ request under advisement, the trial court decided to read what it determined to be the relevant portions of Officer Green’s testimony concerning when he arrived at the scene, when Newsome was apprehended, and where he was apprehended relative to the location of the stolen vehicles. After instructing the jury not to place “any undue emphasis” on the testimony because they had heard it twice, the trial court read the transcript.

It is well settled “that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” (Citation and punctuation omitted.) Barnes v. State, 230 Ga. App. 884, 886 (2) (497 SE2d 594) (1998). Further, “absent special circumstances which might work an injustice[,]” it is for the jury to request and to limit what they desire to rehear. (Citations and punctuation omitted.) Dorsey v. State, 252 Ga. App. 33, 35 (2) (555 SE2d 498) (2001). Here, where the trial court properly issued cautionary instructions to the jury and limited its re-reading of Officer Green’s testimony to only the portions related to the jury’s questions, we find no special circumstances that would require reversal, and we find that the trial court did not err in allowing the jury to rehear the testimony it requested. Id.

3. Newsome contends, and the State concedes, that his conviction and sentence as to Count 2 (aggravated assault of Latasha Arnold) should have merged under OCGA § 16-1-6 with Count 3 (armed robbery of Latasha Arnold). This Court has jurisdiction to consider this contention even though Newsome failed to raise the claim before the trial court. Mikell v. State, 286 Ga. 722, 725 (3) (690 SE2d 858) (2010).

Decided November 13, 2013.

Count 2 of the indictment alleged that aggravated assault had been committed by “an assault upon the person of Latasha Arnold by brandishing her with a firearm, a deadly weapon.” Count 3 of the indictment alleged that Newsome committed armed robbery by “unlawfully, with the intent to commit theft, [taking] from the person and immediate presence of Latasha Arnold[,] United States currency, the property of Latasha Arnold, by use of a handgun.”

In Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006), the Supreme Court of Georgia adopted the “required evidence” test for determining when one offense is included in another under OCGA § 16-1-6. Id. at 214. “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Punctuation and footnote omitted.) Id. at 215.

Applying this test, we find that the aggravated assault should have been merged with the armed robbery count. Although the armed robbery statutory provision requires proof of a taking, which is not a required showing under the applicable aggravated assault provision, the latter provision does not require proof of any fact that was not also required to prove armed robbery, as that offense could be proved under the indictment of that case. See Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010) (“there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery”; aggravated assault by striking victim with a gun merged into armed robbery of victim). Accordingly, Newsome’s aggravated assault conviction and sentence must be vacated, and we remand the case to trial for resentencing. Id.

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

Barnes, P. J., and Miller, J., concur.

Sheueli C. Wang, Long D. Vo, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

       Shareef Reynolds was named as a co-defendant in the indictment and was tried jointly with Newsome. He is not a party to this appeal.

       Thus, the jury had testimony of Newsome’s flight from the police as evidence of his potential involvement in these crimes.

       The note sought access to Officer Green’s testimony as to (1) what time Newsome was apprehended and (2) where he was apprehended relative to the stolen vehicle.

       OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon”).

       OCGA § 16-5-21 (a) (2) (“Aperson commits the offense of aggravated assault when he or she assaults:... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury”).


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A1332.
    SHAW v. THE STATE.
    (751 SE2d 478)
   ANDREWS, Presiding Judge.

Dustin Wade Shaw was indicted for one count of felony possession of marijuana with the intent to distribute (OCGA § 16-13-30 (j)) and one count of misdemeanor possession of drug related objects (OCGA § 16-13-32.2). The trial court denied Shaw’s motion to suppress the evidence, two baggies of marijuana and a set of digital scales, taken from the glove compartment of his vehicle, but granted an immediate review of that ruling. We granted Shaw’s motion for an interlocutory appeal. On appeal, Shaw contends that the denial of his motion to suppress was error because the trial court’s finding that the impoundment and inventory search of his vehicle was necessary was clearly erroneous, foreclosing the applicability of the inevitable discovery rule. We agree and reverse.

When reviewing a trial court’s order on a motion to suppress, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Footnote omitted.) Canino v. State, 314 Ga. App. 633-634 (725 SE2d 782) (2012).

So construed, the relevant facts show that while on patrol on April 19, 2012, Officer Joseph William David of the City of Elberton Police Department stopped Shaw because he knew that Shaw had an outstanding warrant against him. After verifying the warrant, David arrested Shaw and placed him in the back of his patrol car. Upon determining that Shaw’s passenger also had a contempt warrant pending against him, David arrested the passenger as well and placed him in the back of a second police vehicle which had been driven to the scene by a backup police officer. David testified that immediately after both subjects had been placed in the patrol cars, he searched Shaw’s vehicle incident to their arrests and found the evidence set out above in the glove box. At an undetermined time later that night, David listed such items as taken from the vehicle on a department inventory form pursuant to departmental policy and procedure. In other testimony, David indicated that the officers attempted to contact someone to take the vehicle, but called for a tow truck when they got no response.

On cross-examination, David testified that the stop occurred at 10:38 p.m.; that Shaw was compliant and aware of the warrant which was related to a family violence issue; that he did not expect to find anything related to Shaw’s warrant in the vehicle; and that he had no reason to believe that a criminal act had been committed or was about to be committed in the car. The trial court entered a stipulation that at 10:45 p.m., a department dispatcher advised David by radio that Shaw’s mother was en route to get the car; and at 10:55 p.m. and 11:02 p.m., respectively, the two officers left the scene. It is undisputed that the vehicle was towed at some point following the incident and picked up the next day by members of Shaw’s family.

The record shows that the trial court denied Shaw’s motion to suppress citing Humphreys v. State, 287 Ga. 63, 77 (7) (694 SE2d 316) (2010). Apparently persuaded that the inevitable discovery rule was applicable, the trial court found as fact that “the police officer took custody of the vehicle, called to have it towed and[,] for his and the department’s protection, he inventoried the vehicle which is standard procedure so that they don’t get accused of stealing something or misplacing something.”

Quite to the contrary, nothing of record shows that the police impounded and inventoried Shaw’s vehicle for his protection or that of the department. Rather, the evidence shows only that David searched the vehicle incident to Shaw’s arrest, not incident to its impoundment. As the State concedes, there was no justification for the “arm’s reach” search which David undertook immediately after arresting and securing Shaw and his passenger. See Arizona v. Gant, 556 U. S. 332, 335 (129 SCt 1710, 173 LE2d 485) (2009) (“[New York v. Belton, 453 U. S. 454 (101 SCt 2860, 69 LE2d 768) (1981)] does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.”). There is no evidence that Shaw’s vehicle was parked in a manner which might have presented a hazard to traffic or that he was given an opportunity to make alternative arrangements for the disposition of his vehicle. Moreover, no evidence shows that David completed his department’s standard inventory form listing the items he seized from the vehicle in connection with the impoundment of the vehicle.

The state may inventory the contents of a car that has been lawfully impounded. Sams v. State, 265 Ga. 534, 535 (3) (459 SE2d 551) (1995). The test is whether, under the circumstances, the officer’s conduct in impounding the vehicle was reasonable within the meaning of the Fourth Amendment. Wright v. State, 276 Ga. 454, 461 (5) (579 SE2d 214) (2003).

Humphreys, supra, 287 Ga. at 77 (7).

In Humphreys, the Supreme Court held that the inventory search and impoundment of the Jeep at issue were “entirely reasonable and the evidence seized during the search was properly admitted.” (Citation omitted.) Id. Inapposite to those in this case, the facts supporting the Supreme Court’s decision in Humphreys were that “the vehicle was clearly connected to Humphreys’s arrest; it was a rental vehicle in which Humphreys had been the sole occupant; and it was unsafe to drive, illegally and dangerously parked, and a hazard to traffic....” Id.; compare, e.g., Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983); State v. Lowe, 224 Ga. App. 228, 231 (480 SE2d 611) (1997) (impoundment search invalid because vehicle was unconnected to the defendant’s arrest, not parked in a hazardous manner, and defendant not given opportunity to arrange for alternative disposition thereof).

Further, the evidence shows that David and his backup officer left the scene at 10:55 p.m. and 11:02 p.m., respectively, in effect, impounding Shaw’s vehicle within 17 minutes of the time they were notified by radio that his mother was en route. While we have approved as reasonable impoundments occurring in comparably short time periods, we did so finding that we could not determine as a matter of law that departmental policies to such effect were unreasonable. There also was evidence in those cases that the persons en route to pick up the vehicles were 35 to 90 minutes away. See Carlisle v. State, 278 Ga. App. 528, 530 (629 SE2d 512) (2006) (“20 minutes was not unreasonable”); Gooden v. State, 196 Ga. App. 295, 296-297 (395 SE2d 634) (1990) (15 minutes was not unreasonable). There is no evidence of a departmental towing policy in this case. Neither is there any evidence showing that Shaw’s mother’s estimated time of arrival was other than near term.

Decided November 13, 2013.

Patricia A. Provost, for appellant.

Robert W. Lavender, District Attorney, David P. White, Leon Jourolmon, Assistant District Attorneys, for appellee.

Given the foregoing, the State failed to establish that impoundment of Shaw’s vehicle was reasonably necessary as a matter of fact, and the trial court’s finding to the contrary was clearly erroneous. Canino, supra, 314 Ga. App. at 641 (3). The purported inventory search, therefore, was invalid, and the inevitable discovery rule is inapplicable. See Teal v. State, 282 Ga. 319, 324 (2), n. 2 (647 SE2d 15) (2007). Accordingly, the trial court erred by denying the motion to suppress, and reversal is required.

Judgment reversed.

Dillard and McMillian, JJ., concur.

       “The purpose of the inevitable discovery rule [is] to block setting aside convictions that would have been obtained without police misconduct____” (Citation and punctuation omitted.) Teal v. State, 282 Ga. 319, 324 (2), n. 2 (647 SE2d 15) (2007).


author: Dillard, Judge.

text:
    A13A1459.
    RICHARD BOWERS & CO. v. CLAIRMONT PLACE, LLC.
    (751 SE2d 481)
   Dillard, Judge.

Richard Bowers & Co. (“Bowers”), a real estate broker, filed a broker’s lien against property owned by Clairmont Place, LLC (“Clairmont”), an owner and lessor of office space in Atlanta, and then sued Clairmont for unpaid commissions arising out of a leasing commission agreement between Bowers and Clairmont’s predecessor. Clairmont denied Bowers’s claims and asserted a counterclaim for slander of title. Bowers moved for summary judgment on its claims for unpaid commissions and on Clairmont’s counterclaim, which the trial court denied. Bowers then filed an application for interlocutory appeal (which we granted), arguing that the trial court erred in denying its motion for summary judgment. For the reasons noted infra, we agree and reverse.

Viewed in the light most favorable to Clairmont (i.e., the nonmovant), the evidence shows that Clairmont owns commercial real estate located at 1800 Century Place in Atlanta (the “Property”). Clairmont is a successor-in-interest to ITT Commercial Finance Corporation (“ITT”), which previously owned the Property. And while ITT owned the Property, it entered into a rental agreement on June 6, 1993 (the “1993 Lease”), leasing an approximately 29,000 square foot portion of the Property to the Georgia Department of Technical & Adult Education (“DTAE”).

On June 6, 1993, ITT and Bowers also entered into the Leasing Commission Agreement that gave rise to the instant litigation. As compensation for services rendered in securing the 1993 Lease, ITT agreed to pay Bowers a commission of “five percent (5%) of the monthly rental paid by Tenant.” The parties agreed that if the Property was sold to an “outside party,” ITT would furnish Bowers with “an agreement signed by the Purchaser assuming [ITT’s] obligations to [Bowers] for payment of the commissions.” The agreement also provided that if the “Lease”—which is undisputedly a reference to the 1993 Lease—was “renewed or extended, or if a new, additional, amended, or substituted Lease is entered into between Landlord and Tenant covering the Premises, or any part thereof,” then the commission obligation would apply to rental payments by “Tenant under such renewal or extension, new, additional, amended, or substituted Agreement.”

The term of the 1993 Lease, which was initially for a year, was extended through a series of amendments and renewal letters through June 2004. And during this time, CMD Realty Investment Fund II, L.P. (“CMD”) purchased the Property and became the landlord under the 1993 Lease. In June 2004, the Georgia Building Authority (the “Building Authority”) entered into an agreement (the “2004 Lease”) with CMD to rent, through June 30, 2010, approximately 61,000 square feet of office space on the Property, which included the office space which had been rented to DTAE under the 1993 Lease.

The record includes the affidavit of Elliot M. Pensó, formerly leasing director for the State Properties Commission, who was personally familiar with the 1993 Lease. According to Pensó, because of restrictions on State of Georgia departments, such as the DTAE, in making agreements for longer than one year, the Building Authority entered into the 2004 Lease with CMD, and the Building Authority in turn subleased the space to DTAE.

Consistent with Penso’s affidavit, the 2004 Lease shows that the parties agreed that the leased premises would be sublet to DTAE and that CMD would accept DTAE as the Building Authority’s agent for purposes of paying rent and requesting repairs and maintenance services. In turn, the sublease shows that DTAE was to occupy the same (and some additional) suites on the Property as it had leased under the 1993 Lease, and that DTAE would make its rental payments directly to CMD.

Clairmont contracted to buy the Property in December 2004 from CMD. And as part of the real estate sale agreement, Clairmont assumed, among other contracts, the 2004 Lease and the Leasing Commission Agreement. Following its purchase of the Property, Clairmont paid Bowers commissions under the Leasing Commission Agreement through June 2010. Then, effective July 1, 2010, Clairmont and the Building Authority entered into the “First Amendment to Rental Agreement” (the “2010 Lease”) which, inter alia, extended the term of the 2004 Lease an additional ten years, through June 30, 2020.

In July 2010, Clairmont stopped making commission payments to Bowers, notwithstanding Bowers’s demand for same. Consequently, Bowers filed a broker’s lien against the Property on December 21, 2010, and then sued Clairmont to collect unpaid commissions within 90 days of the lien filing, and thereafter. Bowers then filed a separate claim for unpaid commissions for the months of July, August, and September 2010, and amended its complaint to assert an alternate claim for breach of contract. Clairmont answered and counterclaimed for slander of title.

Thereafter, Bowers moved for summary judgment on its claims for unpaid commissions and on Clairmont’s counterclaim. The trial court denied Bowers’s motion for summary judgment, but issued a certificate of immediate review. This Court granted Bowers’s application for interlocutory review, and Bowers then filed a timely notice of appeal.

1. The trial court denied Bowers’s motion for summary judgment on its claims for unpaid commissions because (a) the Building Authority was not the “Tenant” for purposes of the Leasing Commission Agreement, (b) the 2010 Lease was a new lease for which Bowers could not claim a commission, and (c) the Leasing Commission Agreement was indefinite and, thus, unenforceable. Bowers contends that these conclusions were erroneous and that it was entitled to summary judgment as a matter of law. We agree.

(a) The Leasing Commission Agreement provides, in pertinent part, for payment of commissions equal to “five percent (5%) of the monthly rental paid by Tenant under this Lease.” The trial court concluded that DTAE was the “Tenant” identified by the Leasing Commission Agreement and, therefore, because the current tenant was the Building Authority, rather than DTAE, Clairmont was not required to pay Bowers five percent of the rentals paid to Clairmont by the Building Authority.

At the outset of our analysis, we note that, as an initial matter, the construction of a contract is a matter of law, which is subject to de novo review. And in conducting this review, a court is to be “guided by three fundamental principles of contract construction.” First, a court must decide whether the language of the contract is clear and unambiguous, and if it is, the court simply enforces the agreement according to its clear terms—put another way, “the contract alone is looked to for its meaning.” Next, if the contract is ambiguous in some respect, “the court must apply the rules of contract construction to resolve the ambiguity.” Finally, if the ambiguity remains after applying the rules of construction, “the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.”

Looking first to the four corners of the contract, we note that “Tenant” is not a defined term under the Leasing Commission Agreement; and while it is certainly true that the word “Tenant” is capitalized, the agreement contains several capitalized words that are not defined. And on appeal, Clairmont maintains that the capitalization or lack thereof is crucial, arguing that “[t]his case turns completely on the distinction between lower case and capital letters.” But it is not evident, at least on the face of the agreement, that the use of the capitalized word, “Tenant,” as opposed to “tenant,” has any determinative significance for purposes of interpreting the contract.

DTAE is, however, identified in the Leasing Commission Agreement, and it can certainly be inferred that DTAE is a Tenant, but not that “DTAE” and “Tenant” are synonymous terms. Rather, the Leasing Commission Agreement speaks to the “rental paid by Tenant under this Lease,” which suggests a reliance on the 1993 Lease for purposes of establishing the meaning of “Tenant.” Accordingly, we agree with Clairmont that the lack of clarity regarding the meaning of “Tenant” creates an ambiguity within the Leasing Commission Agreement.

In resolving an ambiguity, a court applies the rules of contract construction. In that context, extrinsic evidence is admissible to explain a contract term that is ambiguous. And as the payment obligations under the Leasing Commission Agreement are calculated from the monthly payments by the “Tenant” under the “Lease,” it is entirely appropriate to examine the 1993 Lease to explain what the parties intended by “Tenant.”

As the trial court noted, the “Tenant” under the 1993 Lease was identified as DTAE. However, DTAE was also freely permitted to assign the 1993 Lease, without consent, to “another agency, department, commission, board or bureau within the Executive Branch of the State Government of Georgia, or to a State Authority.” Thus, from the outset it was expressly permissible for a State authority, such as the Building Authority, to become the “Tenant.”

Although this might not, in and of itself, resolve the ambiguity contained within the Leasing Commission Agreement as to the meaning of “Tenant,” “[t]he construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” And under the trial court’s construction of the Leasing Commission Agreement, the landlord’s obligation to pay commissions thereunder would have ceased when the Building Authority entered into the 2004 Lease. Nevertheless, ITT’s successor, CMD, continued to pay commissions while the Building Authority was the tenant, and then Clairmont assumed the 2004 Lease and the Leasing Commission Agreement, and likewise continued to pay commissions for years notwithstanding the fact that the Building Authority, and not DTAE, was the named tenant under the 2004 Lease. Thus, under the parties’ construction of the Leasing Commission Agreement, as shown by their actions and conduct, the Building Authority could be, and was, a “Tenant” for purposes of that particular contract. We conclude, therefore, that the trial court erred in denying summary judgment to Bowers on the ground that the Building Authority was not the “Tenant” contemplated by the Leasing Commission Agreement.

(b) The trial court also found that in light of the material differences between the 2004 Lease and the 2010 Lease, the 2010 Lease is a new lease that is not subject to the Leasing Commission Agreement. In doing so, the trial court relied upon the rule set forth in Brannen/Goddard Co. v. Sheffield, Inc., for distinguishing between a renewal of a lease and an altogether new lease. But the Leasing Commission Agreement explicitly provides:

If the term of the Lease is renewed or extended, or if a new, additional, amended, or substituted Lease is entered into between Landlord and Tenant covering the Premises or any part thereof, or covering any other premises as an expansion of, addition to, or substitution for the Premises herein leased, then in any one (1) or more of said events, Landlord agrees to pay to [Bowers] five percent (5%) of all rentals paid to Landlord by Tenant under such renewal or extension, new, additional, amended, or substituted Agreement.

And viewed in light of this provision, the differences between the 2004 Lease and the 2010 Lease are not such that it would sever Clairmont’s obligation to make commission payments. Moreover, the 2010 Lease is styled as a “First Amendment to Rental Agreement,” and purports to reflect the parties’ desire to “renew and extend the Lease Term” and “expand the square footage” of various rented suites. It provides that, except as set forth therein, the 2004 Lease “shall remain unmodified and in full force and effect.” And as in the 2004 Lease, the Building Authority was the named tenant. The parties acknowledged that the Building Authority subleased the rented premises to DTAE, and none of the provisions of the 2010 Agreement purported to change that arrangement.

The trial court noted that the landlord changed from CMD in the 2004 Lease to Clairmont in the 2010 Lease, but both CMD and Clairmont were successors in interest to the “Landlord” under the Leasing Commission Agreement, which is expressly binding on the Landlord’s assigns, and they each assumed the obligations of the Landlord thereunder.

Another difference noted by the trial court was that the rented space was expanded to approximately 82,000 square feet in the 2010 Agreement from approximately 61,000 square feet in the 2004 Agreement. The Leasing Commission Agreement contemplates, however, that the commission obligations would continue upon an expansion of the leased premises. As such, we simply cannot agree with the trial court that the 2010 Lease was so materially different from the 2004 Lease that Clairmont had no obligation to make commission payments on account of rent paid thereunder. Rather, the 2010 Lease constitutes a lease “entered into between Landlord and Tenant covering the Premises or any part thereof,” and so remains subject to the commission obligation under the terms of the Leasing Commission Agreement.

(c) The trial court also determined that the Leasing Commission Agreement is too vague and indefinite to be enforced in that it does not last for a specific period of time. As the trial court noted, our Court has explained that “ [i] t is well-established that a contract does not exist unless the parties agree on all material terms,” and “[a] contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain.” On the other hand, as a general principle, “[t]he law leans against the destruction of contracts on the ground of uncertainty,” and “the objection of indefiniteness may be obviated by performance and acceptance of performance.” Furthermore, we are unaware of any requirement that a contract for payment of commissions be for a predetermined period of time.

Here, the parties agreed on all material terms, and it can be ascertained that Clairmont, as the landlord, owes commission payments under the agreement. As such, we conclude that the Leasing Commission Agreement, which had already been performed for many years, is not so indefinite as to be unenforceable.

In light of the foregoing, we find that the trial court erred in denying Bowers’s motion for summary judgment on its claims for unpaid commissions.

2. Finally, the trial court concluded that Bowers was not entitled to summary judgment on Clairmont’s counterclaim for slander of title because Bowers had not shown that is was entitled to file a broker’s lien against the Property for unpaid commissions. However, given our conclusions in Division 1, supra, Clairmont cannot show that the lien filing was “false” or “malicious,” and so Bowers was entitled to summary judgment on Clairmont’s counterclaim for slander of title as well.

Decided November 13, 2013.

Eric T. Johnson, for appellant.

Bloom, Sugarman & Everett, Simon H. Bloom, Amanda S. Wick, Ariel D. Zion, Stephen M. Parham, for appellee.

Judgment reversed.

Andrews, P. J., and McMillian, J., concur.

        See, e.g., S. Gen. Ins. Co. v. Wellstar Health Sys., 315 Ga. App. 26, 26 (726 SE2d 488) (2012); see also OCGA § 9-11-56 (c).

       DTAE was later renamed, effective July 1, 2008, the Technical College System of Georgia. See OCGA § 20-4-14 (a); Coosa Valley Technical Coll. v. West, 299 Ga. App. 171, 172, n.1 (682 SE2d 187) (2009).

        See OCGA §§ 50-5-64, 50-5-77.

       Pensó attached the 2004 Lease and the referenced sublease to his affidavit.

       The sublease and CMD’s consent thereto did not, however, contemplate that the Building Authority would be relieved of its obligations under the 2004 Lease.

       The agreement between CMD, as seller, and Clairmont, as purchaser, contemplated that the parties would execute an assignment and assumption agreement, pursuant to which Clairmont would “assume[ ] all of the obligations of [CMD] under the Assumed Agreements [which included the 2004 Lease and the Leasing Commission Agreement] to the extent that such obligations are required to be performed on or after the date of this Assignment.”

        See OCGA § 44-14-602 (d) (“When payment to a broker is due in installments, all or a portion of which is due only after a conveyance of the commercial real estate, any claim for lien for those payments due after conveyance may be recorded at any time subsequent to the conveyance so long as the claim for lien is recorded within 90 days of the date the payment was due and not paid.”).

        See Chaudhuri v. Fannin Regional Hosp., Inc., 317 Ga. App. 184, 184-85 (1) (730 SE2d 425) (2012); Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 660 (2) (516 SE2d 371) (1999).

        See Monitronics Int'l, Inc. v. Veasley, 323 Ga. App. 126, 133 (2) (746 SE2d 793) (2013) (physical precedent only); Goody Products, Inc. v. Dev. Auth. of City of Manchester, 320 Ga. App. 530, 535 (2) (740 SE2d 261) (2013).

        Goody Products, 320 Ga. App. at 535 (2).

        Chaudhuri, 317 Ga. App. at 184-85 (1) (punctuation omitted); see also Schwartz, 237 Ga. App. at 660 (2) (punctuation omitted).

        Chaudhuri, 317 Ga. App. at 184-85 (1) (punctuation omitted); see also Goody Products, 320 Ga. App. at 535 (2).

        Chaudhuri, 317 Ga. App. at 184-85 (1) (punctuation omitted); see also Goody Products, 320 Ga. App. at 535 (2).

        See Woody’s Steaks, LLC v. Pastoria, 261 Ga. App. 815, 817 (1) (584 SE2d 41) (2003); OCGA § 13-2-2.

        See OCGA § 13-2-2 (1); Archer Western Contractors, Ltd. v. Estate of Mack Pitts, 292 Ga. 219, 222 (1), n.4 (735 SE2d 772) (2012) (noting that parol evidence is admissible to explain all ambiguities, both latent and patent).

        See OCGA § 13-2-2 (1) (providing, inter alia, that “[a]U the attendant and surrounding circumstances may be proved and, if there is an ambiguity, latent or patent, it may be explained . . . .”).

       The “Georgia Building Authority” is “an instrumentality of the state and a public corporation.” OCGA § 50-9-3.

        Scruggs v. Purvis, 218 Ga. 40, 42 (126 SE2d 208) (1962); accord Head v. Scanlin, 258 Ga. 212, 214 (1) (367 SE2d 546) (1988); Hiers v. ChoicePoint Servs., 270 Ga. App. 128, 129 (1) (606 SE2d 29) (2004) (finding that, in suit for unpaid commissions, actions of parties in continuing to pay both commissions and consulting fees showed that parties did not intend to “do away with the commission agreement” when consulting fee payments began).

       240 Ga. App. 667 (524 SE2d 534) (1999). Under Brannen/Goddard, we noted that:
      In deciding whether a succeeding lease is substantially a renewal of a preceding lease or altogether a new lease, the determination can be based on whether the succeeding lease employs drastically different terms, not simply somewhat different considerations, i.e., is the lessee occupying substantially the same space under substantially the same terms? If the succeeding lease employs substantially the same terms as the preceding lease, it may he considered a renewal even though technically a “new” lease.

        Id. at 669 (citation omitted).

        See Hunter v. Benamy Realty Co., 115 Ga. App. 829, 831 (2) (156 SE2d 160) (1967) (finding that, “[t]he term ‘new lease,’ used here, would embrace not only a renewal of the original lease on substantially the same terms, but a completely new agreement employing drastically different terms as well, so long as the new lease covered the same ‘premises, or any part thereof.’ ” (punctuation omitted)).

       As the trial court noted, the lease term was also increased, the rental rate decreased, the number of parking spaces increased, and the broker (a party unrelated to this litigation) that represented CMD in the 2004 Lease was not the broker (another party unrelated to this litigation) who represented Clairmont in the 2010 Lease.

        Burns v. Dees, 252 Ga. App. 598, 601-602 (1) (a) (557 SE2d 32) (2001) (citation and punctuation omitted); see OCGA § 13-3-2 (“The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.”).

        Pine Valley Apartments Ltd. P’ship v. First State Bank, 143 Ga. App. 242, 245 (2) (237 SE2d 716) (1977) (punctuation omitted).

        Id. (punctuation omitted).

        See, e.g., Bd. of Regents of Univ. Sys. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 672 (357 SE2d 100) (1987) (finding that trial court properly enforced purchaser’s commitment “to pay commissions to [broker] of 5 percent of all rentals received for periods allocable after the date of the purchase closing, including all renewals and extensions of the tenant lease”).

        See Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. 119, 121 (1) (485 SE2d 264) (1997) (finding that “[b]ecause the determination of whether a contract contains the requisite certainty must be made at the time enforcement is sought, an objection of indefiniteness may be obviated by performance on the part of one party and the acceptance of the performance by the other”).

        See OCGA § 44-14-602 (a), (d).

        See Latson v. Boaz, 278 Ga. 113, 114 (598 SE2d 485) (2004) (defining elements of slander of title: “the plaintiff must allege and prove the uttering and publishing of the slanderous words; that they were false; that they were malicious; that he sustained special damage thereby; and that he possessed an estate in the property slandered” (punctuation omitted)).


author: Branch, Judge. ELLINGTON, Presiding Judge,

text:
    A13A1517.
    IN RE ESTATE OF PRICE.
    (751 SE2d 487)
   Branch, Judge.

On appeal from a probate court’s grant of a temporary administrator’s petition to sell real property owned by an estate, two of the decedent’s heirs argue that the probate court erred when it failed to find that the temporary administrator had “good cause” for the sale. Because the record shows that the probate court failed to make this finding, which is required under OCGA § 53-8-10 (b), we vacate and remand for further proceedings.

Where a probate court sits as a finder of fact, we accept its findings if they are supported by any evidence. Lowry v. Hamilton, 268 Ga. 373, 374 (2) (489 SE2d 827) (1997). The probate court’s application of the law is subject to de novo appellate review, however. In re Estate of Haring, 314 Ga. App. 770 (1) (726 SE2d 86) (2012).

So viewed, the record shows that John Tomlinson, the temporary administrator of the estate of Fronice Price, filed a petition for leave to sell property located at 3331 Haddon Hall Drive, Buford, for $175,000. According to the petition, the sale was for the purposes of paying the estate’s debts and making distributions to the decedent’s heirs. Darrell Price and Diane Parris, two of the heirs, objected that the proposed price of only 59 percent of the property’s assessed value was too low. Price and Parris also pointed out that the estate had more than $350,000 in cash on hand and no debts.

On the day of the hearing, the probate court delayed ruling on Tomlinson’s petition so that the parties could consider Price and Parris’s own offer to buy the property for $180,000 on condition that the estate extend $90,000 in credit for the repair and renovation of the property. After Tomlinson and the two remaining heirs filed objections to this offer, the probate court found that the property was vacant and falling into a state of disrepair, was costing the estate money to maintain, and should be sold. The probate court then granted Tomlinson’s petition as “in the best interest of the estate.” This appeal followed.

Price and Parris argue that the probate court failed to apply the proper standard of proof when it concluded that the sale by the temporary administrator Tomlinson was “in the best interest of the estate.” We agree.

OCGA § 53-8-10 (a) authorizes an estate’s personal representative to dispose of property for any purpose that is “in the best interest of the estate.” OCGA § 53-8-10 (b) authorizes a temporary administrator to do so, however, only with the probate court’s leave “following the procedures [of] this article[,]” and “provided . . . that good cause is shown.” (Emphasis supplied.)

OCGA § 53-8-10 (b)’s imposition of a different and arguably higher standard on temporary administrators’ exercise of the power to dispose of property is also consonant with their limited powers under Georgia law. See Deller v. Smith, 250 Ga. 157, 159 (1) (b) (296 SE2d 49) (1982) (because a temporary administrator is empowered “principally” to preserve an estate “until a permanent administrator is qualified,” a temporary administrator is unable to sue for recovery of land or to distribute the assets of an estate) (citation omitted); Redfearn: Wills and Administration in Georgia, ed. Mary F. Radford (7th ed. 2008), §§ 11:7, 12:14 (detailing the differences between personal representatives and temporary administrators, including the “good cause” requirement of OCGA § 53-8-10 (b)).

In light of these well-established distinctions, this Court is not authorized to assume that a probate court’s finding that a temporary administrator’s proposed sale of an estate’s real property is in the “best interest of the estate” is also sufficient to show that the temporary administrator had “good cause” to make that sale.

All the words of a statute are to be given due weight and meaning. Courts should not so interpret a statute as to make parts of it surplusage unless no other construction is reasonably possible. All the words of the legislature, however numerous, ought to be preserved, and effect given to the whole, if it can be done.

(Citations omitted.) Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 742-743 (152 SE2d 768) (1966). The probate court in this case was bound to decide whether this temporary administrator had made a showing of “good cause,” and we are not in a position to ignore its application of an improper standard of proof when it appears on the face of the order appealed from. See Cameron v. Miles, 311 Ga. App. 753, 755 (1) (716 SE2d 831) (2011) (even in the absence of a transcript, an appellate court must reverse when a trial court’s error appears on the face of the order appealed from). We therefore vacate the probate court’s grant of Tomlinson’s petition and remand for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Andrews, P. J., Barnes, P. J., and Miller, J., concur. Phipps, C. J., Ellington, P. J., and Ray, J., dissent.

ELLINGTON, Presiding Judge,

dissenting.

For the reasons explained below, I respectfully dissent.

In ruling on Tomlinson’s petition to sell 3331 Haddon Hall Drive, the probate court found that “[t]he Haddon Hall property needs to be sold because it is unoccupied, subj ect to vandalism, falling into a state of disrepair, and costing the estate money to maintain. It is in the best interest of the estate that [the] property is sold.” As the majority opinion shows, OCGA § 53-8-10 uses the phrase “best interest of the estate” in specifying the purposes for which an estate’s personal representative is authorized to sell property of the estate (leave of court not being required) but uses the phrase “good cause shown” in specifying when a temporary administrator, such as Tomlinson, may obtain the probate’s court’s permission to sell property of the estate. I disagree with the majority, however, in its conclusion that, because the court failed to expressly find that Tomlinson had shown “good cause” to sell the property, it is necessary to vacate the probate court’s decision. Given the superlative nature of the term “best,” it would seem beyond challenge that a finding that a sale of property is in the best interest of the estate presupposes a finding that there is (at least) good cause for the sale. In the absence of any controlling authority indicating that in this context “good cause” is a higher standard than “in the best interest of the estate,” I believe that vacating the probate court’s order in this case places form over substance, to the detriment of judicial economy.

Decided November 13, 2013.

Caldwell & Watson, Harry W. MacDougald, Floyd E. Propst III, for appellant.

I note that Price and Parris take issue only with the probate court’s threshold determination that the property should be sold, not with its determination that, of the two offers on the table, the third-party buyer’s cash offer of $175,000 was a better offer than Price and Parris’s offer. According to the terms of Price and Parris’s offer, the purchase price of $ 180,000 would be entirely financed by the estate and, in addition, Price and Parris would draw up to an additional $90,000 in cash from the estate’s resources (the line of credit) to finance repairs and renovations at their discretion. Rather than being secured by the property, Price and Parris’s debt to the estate of up to $270,000 principal, plus interest, would be “due and payable in a single payment upon distribution of the Estate” and would “be paid at the time of distribution by set off or retainer against [their] distributive share of the Estate.” In the absence of any guarantee that Price and Parris’s distributive share of the estate would be sufficient to cover that debt, it is hardly surprising that one of the decedent’s heirs objected to Price and Parris’s offer as a “veiled effort” by them to obtain an advancement from the estate, potentially at the expense of the other heirs.

Because there is no transcript of the November 19, 2012 evidentiary hearing in this matter, we must assume that the trial court’s findings of fact regarding the condition of the property are supported by the evidence. Broadcast Concepts v. Optimus Financial Svcs., 274 Ga. App. 632, 634 (1) (618 SE2d 612) (2005) (“Without a transcript, [an] appellate court must presume that the trial court’s findings of fact are supported by evidence.”). Given that, and for the reasons discussed above, I would affirm the order of the probate court. Accordingly, I dissent. Additionally, I am authorized to state that Chief Judge Phipps and Judge Ray join in this dissent.

John E. Tomlinson, for appellee.

       OCGA § 53-8-10 reads in full as follows:
      (a) Subject to the provisions of this article, a personal representative may sell, rent, lease, exchange, or otherwise dispose of property, whether personal, real, or mixed, for the purpose of payment of debts, for distribution of the estate; or for any other purpose that is in the best interest of the estate, provided that nothing in this article shall be construed to limit, enlarge, or change any authority, power, restriction, or privilege specifically provided by will or incorporated into a will or otherwise granted to the personal representative in accordance with the provisions of subsection (b) of Code Section 53-7-1.
      (b) A temporary administrator is authorized to petition the probate court for leave to sell or otherwise deal with property of the estate following the procedures described in this article; provided, however, that good cause is shown.

      (Emphasis supplied.) The statute was adopted in 1996 as part of the Revised Probate Code of 1998. See Ga. L. 1996, pp. 504, 604, § 10; OCGA § 53-1-1.


author: DOYLE, Presiding Judge. McFADDEN, Judge, BOGGS, Judge,

text:
    A13A1597.
    MYERS v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (751 SE2d 490)
   DOYLE, Presiding Judge.

Kimberly A. Myers appeals the dismissal of her tort claim against the Board of Regents of the University System of Georgia (“the Board”), contending that the trial court erred by ruling that her ante litem notice failed to meet the requirement in OCGA § 50-21-26 (a) (5) (E) that she state the amount of her loss claimed. Because her notice stated the amount of loss she claimed to the best of her knowledge as was practicable under the circumstances, we reverse.

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.”

The record shows that on June 28, 2010, Myers arrived for class at the Dalton State College campus when she allegedly stepped on the edge of an unrepaired pothole in a parking lot and became injured. Myers received emergency medical treatment that day, made follow-up orthopedic doctor visits, and started physical therapy running from approximately September through December 201Ó. On October 11, 2010, roughly three-and-one-half months after her injury, Myers sent a “Notice of Claim” letter via certified mail pursuant to OCGA § 50-21-26 (“ante litem notice”) to the Georgia Department of Administrative Services (“DOAS”). The ante litem notice stated that Myers asserted a negligence claim against the Board based on the allegedly unsafe condition of the parking lot, and the notice explained that she “stepped into a hole in the parking lot injuring her left ankle including a fracture and torn tendons.” The letter further stated that “[t]he amount of Ms. Myers [sic] loss is yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.”

On December 30, 2010, the DOAS sent a letter to Myers’s attorney acknowledging “your correspondence” and requesting copies of Myers’s “medical bills, reports, and verification of any wage loss.” Myers did not respond, and on August 2, 2011, DOAS sent a follow-up letter requesting the same documentation and a demand for settlement within 30 days. On April 23, 2012, Myers’s counsel sent a demand package listing Myers’s alleged damages and seeking a $110,000 payment to settle her claims. On May 7, 2012, DOAS responded with a settlement offer of $10,128.24, which amount reflected Myers’s total medical expenses. Myers filed suit the next month, and DOAS answered and later moved to dismiss on jurisdictional grounds, which motion was granted, giving rise to this appeal. The Georgia Tort Claims Act (“GTCA”)

declares it to be the public policy of this [S]tate that the [Sjtate shall only be liable in tort actions within the limitations of the GTCA and in accordance with the fair and uniform principles established in the GTCA. One such limitation is contained in OCGA § 50-21-26 (a), which prescribes that a tort claim may not be brought against the [Sjtate without first giving notice of the claim. OCGA § 50-21-26 (a) specifies a detailed procedure for notifying the [Sjtate of a claim before filing a lawsuit against it.

“The stated intent of the Act is to balance strict application of the doctrine of sovereign immunity, which may produce ‘inherently unfair and inequitable results,’ against the need for limited ‘exposure of the state treasury to tort liability.’ ”

Under subsection (a) (1), “[njotice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered.” Subsection (a) (5), on which this case turns, requires as follows:

A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following:
(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim;
(B) The time of the transaction or occurrence out of which the loss arose;
(C) The place of the transaction or occurrence;
(D) The nature of the loss suffered;
(E) The amount of the loss claimed; and
(F) The acts or omissions which caused the loss.

The Supreme Court has held that

strict compliance with the notice provisions is a prerequisite to filing suit under the GTCA, and substantial compliance therewith is insufficient. This is because the GTCA represents a limited waiver of the State’s sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts.

The Supreme Court has clarified, however,

that the rule of strict compliance does not demand a hyper-technical construction that would not measurably advance the purpose of the GTCA’s notice provisions. In other words, [the Court has] declined to reach a needlessly harsh result when that result was not mandated by the GTCA.

“[T]he purpose of the ante litem notice requirements is to ensure that the [S]tate receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.”

With these principles in mind, we turn to the facts of this case. The essential question is whether the following language in Myers’s ante litem notice was a sufficient statement of the amount of loss claimed: “The amount of Ms. Myers [sic] loss is yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.” Myers argues that this statement met her burden because the statute, by its own terms, only requires the notice to state the amount of loss claimed “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” Therefore, because she was still receiving medical treatment and would claim difficult-to-estimate amounts such as past and future lost wages, pain and suffering, and mental anguish, Myers argues it was simply not possible to know the extent of her loss within the time required for ante litem notice.

As noted above, the GTCA, by its own terms, only requires a statement of loss “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” Thus, “the GTCA’s ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of her claim at the time her notice is submitted.” Here, at the time Myers submitted her ante litem notice, approximately three and one-half months had elapsed since her injury, and she was still receiving medical treatment and the full extent of her loss was not reasonably quantifiable at that time. She had incurred less than half of her medical bills, and she had not at that time made a full recovery or determined the impact to her wage earning capacity.

The GTCA does not require a partial statement or a “snapshot” of the loss; instead it requires a statement of “[t]he amount of the loss claimed.” As defined in the GTCA, “claim” means “any demand against the State,” and “loss” means “personal injury; disease; death; damage to personal property, including lost wages and economic loss . ..; pain and suffering; mental anguish; and any other element of actual damages recoverable. . . ,” Thus, the notice requirement contemplates a statement of the total loss to be asserted against the State, but the statutory language should not be construed to create a hyper-technical barrier to recovery especially when it would not measurably advance the purpose of the GTCA. In the present case, the State was properly notified of the alleged nature, location, and cause of Myers’s injuries, and the purpose of the Act, “to ensure that the [S]tate receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit,” was not frustrated by Myers’s ante litem notice explaining her lack of knowledge of her full loss. Accordingly, based on the facts of this case, we conclude that the trial court erred by dismissing Myers’s complaint for failure to comply with the GTCA’s ante litem notice provisions.

Judgment reversed.

Phipps, C. J., Barnes, P. J., and Ellington, P. J., concur. McFadden, J., concurs fully and specially. Boggs and Branch, JJ., dissent.

McFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. Myers’s ante litem notice reports that she “stepped into a hole . . . injuring her left ankle including a fracture and torn tendon.” That information “assisted the State in understanding the magnitude of the loss it faced and in developing its strategy for avoiding litigation and settling the case,” as the dissent describes the purpose of an ante litem notice. That assistance would not have been materially enhanced by a snapshot of Myers’s medical bills as of the date of the notice or by a guess at the future total of those bills.

BOGGS, Judge,

dissenting.

Because I would affirm the trial court’s decision to dismiss based upon the plaintiff’s failure to comply with the ante litem notice requirements of OCGA § 50-21-26 (a) (5), I respectfully dissent.

The ante litem statute does not require a plaintiff to state her full losses or otherwise restrict her claim to only those losses stated in the ante litem notice. “[T]he GTCA’s ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of her claim at the time her notice is submitted.” Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 825 (653 SE2d 729) (2007). It strikes a balance between putting a plaintiff in the untenable position of stating precise dollar amounts for all future losses and giving the State some reasonable notice of the magnitude of the claim it faces. The notice must state the required information “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” OCGA § 50-21-26 (a) (5). Thus, a plaintiff is not relieved from giving some notice to the State even if her knowledge is incomplete or she must rely on her belief.

Here, Myers’ notice gave no statement of the amount of her loss despite the fact that she did have some concrete knowledge of her losses. For example, according to Myers’ own demand letter and complaint exhibits, within six months of her injury, she had incurred more than $9,000 of her alleged total of $10,128.24 in medical expenses. Thus, Myers could have, at a minimum, stated the bulk of her medical expenses with the caveat that she was undergoing continuing treatment and would claim some stated range of economic and noneconomic losses proportionate to her treatment and condition at that time. But she failed to state any amount of loss whatsoever. The plain language of the statute contemplates that a plaintiff’s statement of loss may be imperfect, but this flexibility does not eliminate the requirement to make some effort to state the amount of loss to the extent of her knowledge and belief at the time of the ante litem notice. See Perdue v. Athens Technical College, 283 Ga. App. 404, 408 (641 SE2d 631) (2007) (“To facilitate settlement of a claim before a lawsuit is filed, subsection (a) (5) (E) requires the ante litem notice to state the amount of the loss ‘claimed.’ ”). See also Williams v. Ga. Dept. of Human Resources, 272 Ga. 624, 625 (532 SE2d 401) (2000).

Myers’ notice frustrated this purpose by failing to timely state any amount of loss. Even without a precise dollar amount, some range of stated loss would have assisted the State in understanding the magnitude of the loss it faced and in developing its strategy for avoiding litigation and settling the case. In light of the statutory purpose, we should hold that a plaintiff’s knowledge need not be complete, but that the statute requires some statement to the extent of the plaintiff’s knowledge and belief. OCGA § 50-21-26 (a) (5). And even with imperfect knowledge, a plaintiff must nevertheless strictly — not substantially — comply with the ante litem notice requirement, because it is a statutorily prescribed waiver of the State’s sovereign immunity. See Cummings, supra, 282 Ga. at 824. There is no legal requirement that a plaintiff’s ante litem notice be absolutely correct, but the statute is plain that the notice must be complete to the best of the plaintiff’s knowledge and belief as may be practicable under the circumstances. See, e.g., id. at 825 (noting that a claimant must state the agency “asserted to be” responsible, not the agency that “actually is” responsible).

Decided November 13, 2013

Barton C. Solomon, Jay R. McCurdy, for appellant.

Samuel S. Olens, Attorney General, Ronald S. Boyter, Jr., Sharon P. Horne, Assistant Attorneys General, for appellee.

Further, many plaintiffs will have (and have had) tort claims against the State seeking damages for mental anguish, future pain and suffering, and future lost wages. If we were to hold that Myers’ uncertainty in this case relieved her of the statutory obligation to state her loss to the extent of her knowledge and belief, then any plaintiff could altogether avoid the requirement to notify the State of the amount of her loss by claiming future medical treatment, mental anguish, pain and suffering, or lost wages. Any settlement of such claims will always involve some estimation of future conditions, and we should read the statute to require some statement of the amount of loss even under those circumstances. Accordingly, because Myers’ ante litem notice failed to include such a statement, this court should affirm the dismissal of her claim.

I am authorized to state that Judge Branch joins in this dissent.

       (Punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 509 (3) (672 SE2d 471) (2009).

       On appeal, Myers has abandoned any argument that the April 23, 2012 demand letter perfected her ante litem notice.

       (Punctuation and footnotes omitted.) Perdue v. Athens Technical College, 283 Ga. App. 404 (641 SE2d 631) (2007).

        Norris v. Dept. of Transp., 268 Ga. 192 (486 SE2d 826) (1997).

       (Emphasis supplied.) OCGA § 50-21-26 (a) (5).

        Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007), citing Perdue, 283 Ga. App. at 406, 408.

       (Punctuation omitted.) Id. at 824-825, citing Ga. Ports Auth. v. Harris, 274 Ga. 146, 151 (2) (549 SE2d 95) (2001) (delivery of notice by Federal Express rather than personally by claimant sufficient to fulfill “personal delivery” requirement under OCGA § 50-21-26 (a) (2), and fact that claimant did liot obtain receipt at time of delivery not fatal because claimant ultimately obtained receipt “in a manner not disallowed by the [statute]”); Norris, 268 Ga. at 193 (notice adequate because it was mailed prior to the statutory deadline, despite the fact that DOAS did not receive it until after the deadline).

       (Citations and punctuation omitted.) Cummings, 282 Ga. at 824.

       OCGA § 50-21-26 (a) (5).

       Myers’s April 23, 2012 settlement demand included the following damages: $10,128.24 for medical expenses, $20,000 for past pain and suffering, $10,000 for mental anguish, $20,000 for future pain and suffering, and $50,480 for lost earning capacity.

       Cummings, 282 Ga. at 825.

       We agree with the dissent that the better course of action is for a plaintiff to provide whatever information about her loss is available to her at the time she serves ante litem notice, but we disagree that the statute currently requires a plaintiff to do so.

       (Emphasis supplied.) OCGA § 50-21-26 (a) (5) (E).

       OCGA § 50-21-22 (1), (3).

        Perdue, 283 Ga. App. at 405.

       We note that the facts of this case differ from those in Perdue, because the plaintiff had made a full recovery and had already made a specific monetary demand for settlement quantifying her full loss before she sent her ante litem notice. See id. at 405-406. Thus, Perdue’s failure to include the specific dollar amount or range of loss was fatal to her claim because at the time she sent her ante litem notice she had full knowledge of her loss, and it was practical to provide the amount of loss in the ante litem notice. See id. at 408.

       The authority relied upon by Myers is distinguishable, because in each of those cases the plaintiffs gave some information, even if it was approximate or mistaken. See Cummings, 282 Ga. at 825-826 (after making efforts to investigate, plaintiff mistakenly listed and notified the wrong state agency, but did list an agency and properly notified DOAS); Bd. of Regents v. Canas, 295 Ga. App. 505, 508-509 (3) (672 SE2d 471) (2009) (notice deemed sufficient where plaintiff listed continuous range of dates that he received allegedly wrongful medical treatment and would need to rely on discovery to determine precise dates of injury); Savage v. E. R. Snell

        Contractor, 295 Ga. App. 319, 323-324 (3) (b) (672 SE2d 1) (2008) (notice deemed sufficient even though plaintiffs could not recall exact dates of injury caused by flooding because the flooding was a continuing nuisance creating a new cause of action with each loss, and the plaintiffs listed “constant flooding . . . after every heavy and moderate rainfall. . . [including] fifteen or more occasions from July [2005]”). See also Ga. Dept. of Transp. v. Griggs, 322 Ga. App. 519 (745 SE2d 749) (2013) (notice deemed sufficient because plaintiff who was injured by an uncovered manhole identified the location of her injury to the best of her knowledge: “This manhole was located on the emergency lane of Interstate 285 northbound between Riverside Drive and Roswell Road in Atlanta, Fulton County, Georgia.”). In this case, the plaintiff gave no information even though some information was available.


author: Boggs, Judge.

text:
    A13A0970.
    BULLOCH COUNTY SCHOOL DISTRICT v. GEORGIA DEPARTMENT OF EDUCATION.
    (751 SE2d 495)
   Boggs, Judge.

On May 16, 2011, the Supreme Court of Georgia held the 2008 Georgia Charter Schools Commission Act, OCGA § 20-2-2080 et seq., unconstitutional because it violated the “special schools” provision of the Georgia Constitution, Ga. Const. of 1983, Art. VIII, Sec. V, Par. VII (a). Gwinnett County School Dist. v. Cox, 289 Ga. 265 (710 SE2d 773) (2011). On March 2, 2012, the Bulloch County School District (“the District”), one of seven plaintiff-appellants in the litigation, id. at 265 n. 1, filed a “Motion for an Order Directing the Georgia Department of Education to Disgorge Funds Wrongfully Withheld from the District,” arguing that the Supreme Court’s decision should be applied retroactively under the three-pronged test established by the United States Supreme Court in Chevron Oil Co. v. Huson, 404 U. S. 97 (92 SCt 349, 30 LE2d 296) (1971). See Findley v. Findley, 280 Ga. 454, 460 (629 SE2d 222) (2006). The Department responded, asserting that the District’s claim was barred by sovereign immunity, that the claim was properly for money had and received and was asserted against the wrong party, that the claim was barred by the principles of unclean hands and laches, and that the Supreme Court’s decision should not be applied retroactively. The District did not file a reply brief below.

The trial court denied the District’s motion in a brief, nonspecific order, and the District appeals, arguing for the first time on appeal that its claim for disgorgement of funds falls under the contractual waiver to sovereign immunity in Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c) and OCGA § 50-21-1 (a). Because the District’s claim is barred by sovereign immunity, we affirm.

1. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e) provides:

Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

Here, the District’s claim amounts to an action for money had and received or unjust enrichment. Such actions are barred by sovereign immunity. DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 640 (1) (b) (734 SE2d 466) (2012) (bars action for money had and received, unjust enrichment, or promissory estoppel); Georgia Dept. of Community Health v. Data Inquiry, 313 Ga. App. 683, 687 (2) (722 SE2d 403) (2012) (bars action for unjust enrichment or quantum meruit). “The doctrine of sovereign immunity shields the state from suits seeking to recover damages. . . . [T]he primary purpose of sovereign immunity is to protect state coffers.” (Citations and footnotes omitted.) In the Interest of A. V. B., 267 Ga. 728 (1) (482 SE2d 275) (1997) (sovereign immunity allows complaint seeking injunctive relief and no damages). The District’s claim therefore is barred by sovereign immunity.

Moreover, the District failed to preserve the claim of waiver which it now asserts for the first time before this court.

Sovereign immunity is not an affirmative defense (see OCGA § 9-11-8 (c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver.

Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993), overruled on other grounds, Hedquist v. Merrill Lynch, 272 Ga. 209, 211 (1) (528 SE2d 508) (2000). The District, not the Department, therefore had the burden of establishing a waiver of sovereign immunity. Id.

The Department asserted its defense of sovereign immunity in its answer and in its response to the District’s motion. The District, however, did not assert any waiver of sovereign immunity in its complaint or in its motion seeking funds from the Department. Nor did it file a reply brief responding to the Department’s assertion of sovereign immunity with respect to its motion. It never asserted any claim of waiver under OCGA § 50-21-1 (a) of the claim of sovereign immunity until it filed its brief in this court.

The posture of this case therefore is directly controlled by Seay v. Cleveland, 270 Ga. 64, 66 (2) (508 SE2d 159) (1998). In that case, the Supreme Court of Georgia reversed the decision of this court holding that an action on a sheriff’s bond under OCGA § 15-16-5 was “an action ex contractu as to which sovereign immunity is waived by OCGA § 50-21-1 (a).” Id. at 66 (2). The Supreme Court held that the plaintiffs

made no such allegation in their complaint or motion for directed verdict or on appeal to the Court of Appeals. Inasmuch as the issue of whether the county’s sovereign immunity had been waived by OCGA § 50-21-1 (a) was never presented to nor ruled upon by the trial court, it presents nothing for review on appeal. [Cit.]

Decided November 14, 2013

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Charles P. Aaron, for appellant.

Samuel S. Olens, Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, Kelly E. Campanella, Assistant Attorney General, for appellee.

See also Kelleher v. State of Ga., 187 Ga. App. 64, 64-65 (1) (369 SE2d 341) (1988), in which we noted that because the appellant never alleged a waiver of sovereign immunity below, the State was not required to address it. Moreover, the trial court was never presented with the issue and never ruled on it, and we held, “Consequently, this contention presents nothing for review on appeal. [Cit.]” Id.

2. Based upon our holding in Division 1, we need not address the District’s remaining enumeration of error regarding the retroactivity of the Supreme Court’s decision in Gwinnett County, supra.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       The District does not assert that its motion sought injunctive relief.

       The sole decision cited by the District on appeal for its contention that immunity is waived under OCGA § 50-21-1 (a) is Alverson v. Employees’Retirement System, 272 Ga. App. 389 (613 SE2d 119) (2005). It does not appear that Alverson, holding that sovereign immunity did notbar claims under a statutory retirement plan that was part of state employees’ contracts of employment, id. at 391 (1) (b), would apply to a direct statutory allocation of funding outside the employment context. But we need not reach that issue.