author: Miller, Judge.

text:
    A11A2124.
    BROADNAX v. DANIEL CUSTOM CONSTRUCTION, LLC et al.
    (726 SE2d 770)
   Miller, Judge.

This case involves a vicarious and direct liability action brought by Angela Broadnax against Sebastian Ruiz-Mendoza (“Mendoza”), Randall Flynn Daniel, and Kathy Daniel for injuries Broadnax sustained in a vehicle collision with Mendoza. The Daniels moved for summary judgment on the grounds that they were not vicariously or directly liable for Mendoza’s actions. The trial court granted the Daniels’ motion, from which Broadnax appeals. Broadnax contends that the trial court erred in finding that Mendoza was acting as an independent contractor, rather than an employee of the Daniels at the time of the collision. Alternatively, Broadnax contends that, to the extent the trial court determined that Mendoza was the Daniels’ employee, it erred in finding that Mendoza was acting outside the scope of the employment relationship at the time of the collision. For the reasons set forth below, we reverse.

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

(Citation and punctuation omitted.) Matheson v. Braden, 310 Ga. App. 585 (713 SE2d 723) (2011).

So viewed, the evidence shows that from February to July 2009, Mendoza worked for Mr. Daniel’s two construction companies by performing various jobs that primarily included construction cleanup. Mendoza also worked for the Daniels at their personal residence by performing such duties as mowing and maintaining the Daniels’ lawn. On days that Mendoza worked at the Daniels’ residence, the Daniels would instruct Mendoza as to what tasks he was to perform on a particular day, as well as the manner in which Mendoza was to complete a requested task. Mendoza generally utilized the Daniels’ lawnmower and other equipment when performing yard work at their home. Mendoza testified that to the extent he might have unsatisfactorily performed any of his job duties, Mr. Daniel retained the right to fire him.

Mr. Daniel paid Mendoza on an hourly basis; at the end of each workweek, Mendoza was paid in cash or by a check issued by one of Mr. Daniel’s construction companies. As reflected by Mendoza’s paychecks, his total weekly compensation included pay for the hours that he performed construction work for Mr. Daniel’s two companies, as well as for the hours that Mendoza performed yard work for the Daniels at their personal residence.

According to Mendoza, there was not a set schedule as to what days he would work for the Daniels at their residence and what days he would work for one of Mr. Daniel’s companies at a construction site; rather, Mendoza worked wherever and whenever Mr. Daniel needed him. Although Mr. Daniel claimed that Mendoza performed lawn maintenance work according to a time that was convenient for Mendoza’s schedule, Mendoza testified that Mr. Daniel expected Mendoza to work from 9:00 a.m. or 9:30 a.m. to 5:00 p.m. on whatever days he was requested to work.

On July 29, 2009, Mr. Daniel called Mendoza to see whether he was available the next day to mow the Daniels’ lawn; Mr. Daniel indicated that he would give Mendoza instructions as to the other tasks he wanted Mendoza to perform at the Daniels’ residence. According to Mendoza, Mr. Daniel had also told Mendoza earlier in the week that he wanted Mendoza to wash the windows at the Daniels’ residence, and that he was going to find an extension ladder for Mendoza to use for that task. Mr. Daniel denied any discussions with Mendoza regarding washing the windows or acquiring an extension ladder, asserting that he told Mendoza only to mow the lawn on July 30, 2009. Pursuant to Mr. Daniel’s usual instructions, Mendoza was expected to be at the Daniels’ residence by 9:00 a.m. or 9:30 a.m.

On July 30, 2009, Mendoza traveled in his own vehicle and arrived at the Daniels’ residence around 9:00 a.m. Mr. Daniel was not at home when Mendoza arrived, as Mr. Daniel was working at one of his construction sites. According to Mr. Daniel’s instructions from the previous day, Mendoza immediately obtained the Daniels’ lawnmower and began to mow their lawn. Mendoza finished his work on the Daniels’ lawn before noon. Around that time, Mendoza determined that Mr. Daniel would not be returning home. As such, Mendoza decided to drive his own vehicle to Mr. Daniel’s construction site and obtain the ladder to wash the Daniels’ windows. Since it was lunchtime, Mendoza had also initially planned to pick up lunch. As he was leaving the Daniels’ residence, however, Mrs. Daniel requested that Mendoza plant some flowers upon his return. As a result, Mendoza decided to skip lunch and instead use his time only to find Mr. Daniel and a ladder, so that Mendoza could return to the Daniels’ residence and finish his requested tasks for the day. Shortly after leaving the Daniels’ residence, Mendoza had a head-on collision with Broadnax.

Broadnax asserted that the Daniels were vicariously liable under the doctrine of respondeat superior for Mendoza’s conduct, and that they were directly liable for their negligent entrustment, hiring, retention, supervision, and training of Mendoza. The Daniels moved for summary judgment on the grounds that there was no evidence of any facts upon which the Daniels could be vicariously or directly liable for the allegedly negligent conduct of Mendoza. At the summary judgment hearing, the trial court found that there was no employee-employer relationship between Mendoza and the Daniels, and otherwise, that Mendoza was not acting in the course and scope of his employment at the time of the collision with Broadnax. As a result, the trial court granted the Daniels’ motion for summary judgment.

1. Broadnax contends that the trial court erred in granting summary judgment to the Daniels because there were genuine issues of material fact as to whether Mendoza was an employee or an independent contractor. We agree.

“Although an employer may be held vicariously liable for the torts of an employee, such liability does not extend to torts committed by an independent contractor.” (Citations omitted.) McKee Foods Corp. v. Lawrence, 310 Ga. App. 122, 124 (712 SE2d 79) (2011); see OCGA § 51-2-4 (“An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and ... is not subject to the immediate direction and control of the employer.”). However, there are exceptions to this general rule. Notably, OCGA§ 51-2-5 (5) provides that “[a]n employer is liable for the negligence of a contractor... [i]f 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 [.]”

The test for determining whether an employer is exercising a degree of control over an independent contractor’s work such that the law will deem the independent contractor to be a servant of that employer — thus making the employer vicariously liable for any wrongful acts committed by the contractor — is whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right to merely require certain definite results in conformity with the contract. Put another way, the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.

(Punctuation and footnotes omitted.) Ga. Messenger Svc., Inc. v. Bradley, 311 Ga. App. 148, 150 (1) (715 SE2d 699) (2011).

Here, there was a genuine issue of material fact as to whether the degree of control exercised by the Daniels over Mendoza’s lawn maintenance work was such that the Daniels may be held liable for Mendoza’s alleged negligence against Broadnax. Notwithstanding the Daniels’ claim that they did not control the time, manner, or method of Mendoza’s work, the evidence viewed in the light most favorable to Broadnax, as the non-moving party, shows at least a question of fact otherwise. Significantly, Mendoza maintained that (i) he was to perform work at the Daniels’ personal residence whenever and wherever it was requested; (ii) when work was available, Mr. Daniel expected Mendoza to work from 9:00 a.m. or 9:30 a.m. to 5:00 p.m.; (iii) the specific tasks performed by Mendoza depended on what the Daniels had instructed him to do that day; (iv) Mr. Daniel would instruct and describe the manner in which Mendoza was to perform specific tasks; (v) Mendoza utilized the Daniels’ equipment to perform his work at the Daniels’ residence; (vi) Mr. Daniel paid Mendoza weekly by cash or check; and (vii) Mr. Daniel had the authority to fire Mendoza. Cf. Boatright v. Old Dominion Ins. Co., 304 Ga. App. 119, 121 (1) (695 SE2d 408) (2010) (holding that evidence demonstrated worker was an employee rather than independent contractor for purposes of insurance policy exclusion where employer (i) hired worker to assist in building houses; (ii) paid him weekly by check; (iii) provided worker with necessary tools and materials; (iv) instructed the worker to perform the work requested by employer and in the manner desired by employer; and (v) retained the authority to discharge worker); Atkins v. MRP Park Lake, L.P., 301 Ga. App. 275, 280 (1) (b) (687 SE2d 215) (2009) (holding that evidence was sufficient to preclude summary judgment on independent contractor issue where (i) the employer instructed workers on a daily basis as to what tasks they were to do that day; (ii) the employer expected them to be at work by no later than 9:00 a.m. each day; (iii) the employer would regularly give the workers direction as to the work they were to perform; and (iv) in performing some of the work, the workers would use equipment that was available generally on the premises, rather then their own equipment).

Furthermore, the Daniels did not point to any written or oral contract providing that they did not have the right to direct or control Mendoza’s work.

Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor. . . .
In other words, in the absence of any contractual provision showing that [an employer] did not have the right to direct and control the employees ..., we must hold that the evidence has failed to prove as a matter of law that the [employees] [were] independent contractor [s].

(Citations and punctuation omitted.) Atkins, supra, 301 Ga. App. at 280 (1) (b). Given the absence of any such contract in this case, combined with the evidence that the Daniels retained at least some right to control and direct Mendoza, there was a question of fact precluding the entry of summary judgment on the issue of the employment relationship between Mendoza and the Daniels. The trial court erred in finding otherwise.

2. Broadnax further contends that the trial court erred in granting summary judgment to the Daniels because there were genuine issues of material fact as to whether Mendoza was acting in the course and scope of his employment at the time of the collision. Again, we agree.

Under Georgia law, two elements must be present to render a master liable for his servant’s actions under respondeat superior: first, the servant must be in furtherance of the master’s business; and, second, he must be acting within the scope of his master’s business. If a tort is committed by an employee for reasons unrelated to that employment (e.g., for purely personal reasons disconnected from the authorized business of the master), the employer is not liable. Summary judgment for the master, then, is appropriate when the evidence shows that the servant was not engaged in furtherance of his master’s business but was on a private enterprise of his own. Finally, the question of whether the servant at the time of an injury to another was acting in the prosecution of his master’s business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases.

(Punctuation and footnotes omitted.) Ga. Messenger Svc., Inc., supra, 311 Ga. App. at 151 (2).

Here, we conclude that a genuine issue of material fact remained as to whether, at the time of the collision with Broadnax, Mendoza was acting in furtherance of the Daniels’ business and within the scope of the same. According to Mendoza, a day or two prior to July 30, 2009, Mr. Daniel had indicated that he was going to provide Mendoza with an extension ladder so that Mendoza could clean the Daniels’ windows after he mowed their lawn on July 30, 2009. Upon completing his work on the Daniels’ lawn that morning, however, Mendoza determined that Mr. Daniel was not coming back to the residence with a ladder. Mendoza thus decided to drive from the Daniels’ residence to obtain the ladder so that he could complete the requested task of washing the Daniels’ windows. Notwithstanding the Daniels’ argument that Mendoza was neither directed nor requested to clean the Daniels’ windows, get into his vehicle, and otherwise find a ladder from Mr. Daniel that day,

[w]hether a specific act was authorized has never been the test of liability. In fact, it makes no difference that the master did not authorize a particular act, or even know of the servant’s act or neglect, or even if he disapproved or forbade it, he is equally liable, if the act be done in the course of his servant’s employment.

(Citation and punctuation omitted.) Brown v. AMF Bowling Centers, Inc., 236 Ga. App. 277, 278 (511 SE2d 619) (1999).

Finally, we note that “where an employee takes a break for lunch and is not otherwise engaged in his employer’s business, the employee is on a purely personal mission.” Nelson v. Silver Dollar City, Inc., 249 Ga. App. 139, 145 (4) (547 SE2d 630) (2001). Here, however, the evidence created a question of fact as to whether Mendoza, at the time of the collision, was on the “purely personal mission” of lunch or was “otherwise engaged in his employer’s business” by attempting to locate Mr. Daniel and obtain a ladder. Notably, although Mendoza indicated that he had initially planned to pick up lunch after leaving the Daniels’ residence, Mendoza specifically testified that he decided to skip lunch after Mrs. Daniel asked him to plant some flowers upon his return to the Daniels’ residence. Thus, according to Mendoza, at the time of the collision, he was solely on the mission of finding Mr. Daniel and an extension ladder so that he could complete the task of washing the Daniels’ windows, as Mr. Daniel had requested of Mendoza earlier in the week.

For all of the foregoing reasons, we reverse the trial court’s grant of the Daniels’ motion for summary judgment.

Judgment reversed.

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

Decided March 29, 2012.

Bell & Brigham, John C. Bell, Jr., Turkheimer & Hadden, John D. Hadden, Benjamin F. Windham, for appellant.

Blasingame, Burch, Garrard & Ashley, M. Steven Heath, Matthew A. Moseley, James Bates, William P. Horkan, Lee M. Gillis, Jr., Charles W. Rutter, for appellees.

       Mr. Daniel’s two construction companies, Daniel Custom Construction, LLC and Georgia Housing Center, Inc., were also named as defendants, but were subsequently dismissed from the case and are not parties to the appeal.

       Despite Mendoza’s testimony that he believed he was working only for Mr. Daniel, this evidence also creates a question of fact as to whether Mrs. Daniel, like Mr. Daniel, retained the right to control and direct Mendoza. Moreover, there was evidence further showing that Mrs. Daniel signed Mendoza’s paychecks, occasionally described Mendoza’s daily job tasks while he was working at the Daniels’ residence, and specifically requested that flowers be planted while Mendoza was working at the residence on July 30, 2009.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A11A2136.
    THE BETHANY GROUP, LLC v. GROBMAN.
    (727 SE2d 147)
   DOYLE, Presiding Judge.

We granted this application for interlocutory appeal from the trial court’s order denying a motion for summary judgment filed by The Bethany Group, LLC, in an action alleging claims for premises liability and private nuisance filed by Janice C. Grobman, individually and as personal representative of her late husband’s estate, after her husband, Dean Grobman, was found shot to death in his taxi cab at an apartment complex operated by Bethany. For the reasons that follow, we affirm.

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). Adenovo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence presented established that in the late-night hours of November 8, 2007, Mr. Grobman was dispatched to pick up a passenger at the Alden Ridge apartment complex, which was owned and operated by Bethany. The potential passenger identified himself to the dispatcher at Mr. Grobman’s employer, Decatur’s Best Taxi Service, as “Jamal,” and the caller’s number was eventually traced by police to a disposable cell phone. At approximately 1:50 a.m. on November 9, a DeKalb County police officer responded to an emergency call at Alden Ridge and found Mr. Grobman slumped over the steering wheel of his taxi with a gunshot wound to the head. Police never determined “Jamal’s” actual identity, and because his identity remains a mystery, it is unknown whether “Jamal” was a resident of Alden Ridge, the guest of a resident, or a trespasser.

Approximately two years prior to Mr. Grobman’s murder, Bethany had hired a security company to surveil the complex. Willie Manson, the owner of the security company, deposed that his company initially provided four security officers for twenty-four hour coverage at the complex. When his company was terminated in February 2007, they were providing only two security officers, five days a week, for four to five hours per shift. Manson was told by the on-site managers that Bethany’s upper management believed the security services were too costly. Manson also deposed that during his company’s employment, he was aware of at least two robberies of taxi drivers and two or three robberies of pizza delivery drivers, which robberies occurred during the hours his company was off-duty.

The appellee also presented evidence that Bethany was aware of other incidents of crime at Alden Ridge, including (1) robberies of persons lured to the premises in response to fake online advertisements; (2) robberies of customers lured onto the property by prostitutes; (3) three or four incidents of trespassers using vacant apartments to lure people for robbery; (4) gang violence; and (5) threats directed at Manson’s employees and Alden Ridge’s own courtesy officer. Eight days prior to Mr. Grobman’s murder, Bethany’s courtesy officer reported to Bethany the armed robbery of a pizza delivery person at a vacant apartment, and six days before Mr. Grobman’s murder, the courtesy officer assisted police officers responding to a report of a shooting at the complex.

After a hearing on Bethany’s motion for summary judgment, the trial court issued an order denying the motion, finding that genuine issues of material fact existed. The trial court issued a certificate of immediate review, and this Court granted Bethany’s application for interlocutory appeal.

1. Premises Liability, (a) Bethany first argues that the trial court erred by denying its motion for summary judgment because Mr. Grobman was a licensee on the premises, and the record does not establish sufficient facts for a jury to find that any failure on the part of Bethany to provide security or keep the premises safe was wilful or wanton. We disagree.

In this case, the facts presented at summary judgment render it impossible to determine whether Mr. Grobman was called to the premises by a resident of the complex, thereby having a business relationship with an occupier of the land, or whether another individual with no relationship to Bethany lured him to the complex. Indeed, the trial court did not expressly rule on this issue, finding only that material issues of fact remained, which precluded a grant of summary judgment. Even if Mr. Grobman’s legal status was that of a licensee, the trial court correctly denied summary judgment here.

That is because

it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises. Accordingly, if a danger to a licensee is known and foreseen by the property owner, then the owner must exercise ordinary care and diligence to protect that licensee from the peril.

“The standard of ‘wilful or wanton’ imports deliberate acts or omissions, or such conduct that discloses an inference of conscious indifference to consequences.”

The record establishes that Bethany had knowledge that taxi drivers were regularly called to the premises to transport tenants or guests of tenants, and therefore, Bethany reasonably should have anticipated Mr. Grobman’s presence on the property. In support of the propositions that Mr. Grobman was a licensee and that it breached no duty owed to him, Bethany cites to Spear v. Calhoun and Barnes v. St. Stephen’s Missionary Baptist Church. In those cases, however, the plaintiffs presented no evidence that the landlords had prior knowledge of crime on their properties, and this Court therefore concluded the landowners breached no duties to the respective plaintiffs. In this case, there was evidence that Bethany knew that armed robberies had occurred on the property, even though no one had been murdered on the premises, and that it should have anticipated Mr. Grobman’s presence on the property. The Supreme Court of Georgia has held that

[w]hile the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.

Thus, a question of fact exists as to whether Bethany breached a duty to protect Mr. Grobman from the peril.

(b) Bethany also argues that the trial court erred by denying its motion for summary judgment because any breach on its part was not the proximate cause of Mr. Grobman’s death — because the assailant’s act in this case was an intervening cause of Grobman’s death.

“Generally, the independent, intervening criminal act of a third party ... will be treated as the supervening proximate cause of such injury . . . unless such intervening criminal act was a reasonably foreseeable consequence of defendants’ negligent act or omission.”

The question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than for summary adjudication by the courts. The record demonstrates that [Bethany] had actual knowledge of the particular dangerous condition of serious crime in the area and on the premises and of the risks posed by dangerous characters involved in that type of activity. The jury may find that the particular danger which resulted in the [death of Mr. Grobman] in this case was foreseeable under all the circumstances, and that [Bethany was] negligent in failing to exercise ordinary care to guard against it.

Decided March 29, 2012

Hawkins, Parnell, Thackston & Young, Warner S. Fox, Patricia M. Peters, Michael J. Goldman, Christopher S. Keith, for appellant.

Deitch & Rogers, Gilbert H. Deitch, Andrew T. Rogers, for appellee.

Viewing the evidence of Bethany’s knowledge of the previous armed robberies and the testimony of Manson that such incidents increased after Bethany reduced its security, and making all reasonable inferences in the nonmovant’s favor, a triable issue remains as to whether Bethany’s failure to retain security on the premises or take other precautions was the proximate cause of Mr. Grobman’s death.

2. Nuisance. Bethany contends that the trial court erred by denying its motion for summary judgment as to the nuisance claim because there is no evidence that it created or maintained a regularly repeated act or condition at the complex that led to Mr. Grobman’s death.

“To be liable under a nuisance theory under the facts of this case, [Bethany] must have created or maintained a continuous or regularly repeated act or condition on the property, which caused [Mr. Grobman’s] injury.” The record contains ample evidence of repeated instances of armed robberies at Alden Ridge, establishing a question of fact as to whether Bethany created or maintained a nuisance at the complex.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

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

       A transcript of the hearing does not appear in the record on appeal.

       Cf. Wojcik v. Windmill Lake Apts., 284 Ga. App. 766, 768-769 (645 SE2d 1) (2007) (physical precedent only) (utilizing an invitee analysis to address the duty owed to a pizza delivery man, who was robbed and strangled in a vacant apartment by a tenant’s guest, who called for the pizza, without expressly determining that the delivery man was an invitee).

       See, e.g., Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 875 (2) (392 SE2d 535) (1990) (summary judgment precluded by issues of fact as to status).

       (Punctuation and footnotes omitted.) Rigdon v. Kappa Alpha Fraternity, 256 Ga. App. 499, 501 (1) (568 SE2d 790) (2002). See also McCullough v. Reyes, 287 Ga. App. 483, 487 (2) (651 SE2d 810) (2007).

        Spear v. Calhoun, 261 Ga. App. 835, 837 (1) (584 SE2d 71) (2003).

       Id. (decedent was killed by a stray bullet on New Year’s Eve night, but there was no evidence that the landlord knew that tenants shot firearms in celebration of the evening, although he knew of drug activity by armed dealers in the complex, and the bullet injuring the victim may have come from elsewhere).

       260 Ga. App. 765, 767 (580 SE2d 587) (2003) (church not liable for injuries sustained by passerby when one assailant attacked her after hiding behind bushes near the abandoned church building and another hailed from the church’s door and raped her).

       (Citation and punctuation omitted.) Sturbridge Partners v. Walker, 267 Ga. 785,786 (482 SE2d 339) (1997) (evidence of prior burglaries was sufficient to give rise to a triable issue as to whether landlord had duty to exercise ordinary care to safeguard against risks posed hy prior burglaries where the plaintiff was raped). See also Higdon, 256 Ga. App. at 501 (1).

       (Emphasis supplied.) FPI Atlanta, L.P. v. Seaton, 240 Ga. App. 880, 884 (2) (524 SE2d 524) (1999).

       (Citations and punctuation omitted.) Walker v. St. Paul Apts., 227 Ga. App. 298, 300-301 (489 SE2d 317) (1997).

       See FPI Atlanta, L. P., 240 Ga. App. at 884 (2).

        Barnes, 260 Ga. App. at 769 (2), citing OCGA § 41-1-1; Banks v. Mayor & City of Savannah, 210 Ga. App. 62 (1) (435 SE2d 68) (1993).

       Compare with Barnes, 260 Ga. App. at 769 (2) (single instance of criminal activity insufficient to establish claim of nuisance against a landowner).


text:
    A11A2186, A11A2187.
    CANTON PLAZA, INC. et al. v. REGIONS BANK, INC.; and vice versa.
    (732 SE2d 449)
   Miller, Judge.

Canton Plaza, Inc. (“CPI”) and Chaim Oami (collectively, “Plaintiffs”) filed suit against Regions Bank, Inc. (“Regions”), asserting claims for breach of contract and wrongful foreclosure. In its answers to the complaint, Regions asserted two counterclaims seeking attorney fees against both CPI and Oami. At trial, Regions moved for a directed verdict on Plaintiffs’ breach of contract and wrongful foreclosure claims. The trial court granted Regions’s motion. Plaintiffs moved for a directed verdict on Regions’s counterclaims for attorney fees, which the trial court also granted. These cross-appeals then ensued.

In Case No. A11A2186, Plaintiffs contend that the trial court erred in directing the verdict against them as to their breach of contract and wrongful foreclosure claims. Since Oami’s other companies, namely H&I Real Estate, Inc. (“H&I”) and NCO, Inc. (“NCO”), were the parties who suffered damages from the alleged misconduct, and these entities were not parties to this suit, the trial court properly determined that Plaintiffs were not entitled to recover damages belonging to H&I and NCO. Therefore, we affirm the trial court’s judgment in Case No. A11A2186.

In Case No. A11A2187, Regions contends that the trial court erred in directing the verdict against Regions as to its counterclaims. The trial court did not err in directing a verdict against Regions on its counterclaims for attorney fees because Regions was precluded from recovering damages for merely having been sued by Plaintiffs. We affirm the trial court’s judgment in Case No. A11A2187.

A motion for directed verdict should not be granted where there exists even slight material issues of fact, because the trial court is substituting its judgment for the jury’s; only when there is an absence of evidence or when no evidence supports an essential element of the case should a directed verdict be granted, because the trial judge takes the determination of the facts from the jury. The appellate review of directed verdicts is based upon the “any evidence” rule to support the case of the nonmoving party; when there is “any evidence,” a directed verdict must be reversed. The direction of a verdict is proper only where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. When there is opinion evidence, circumstantial evidence, presumptions of fact, or evidence subject to more than one reasonable construction, the appellate courts shall carefully scrutinize the grant of a directed verdict, because such evidence may be construed as providing the “any evidence” creating a jury question.

(Citation and punctuation omitted.) Teklewold, v. Taylor, 271 Ga. App. 664, 665 (610 SE2d 617) (2005); see also OCGA§ 9-11-50 (a).

So construed, the trial evidence shows that in December 2002, CPI, a corporation solely owned by Oami, purchased a commercial shopping center from Regions known as Canton Plaza. CPI financed the purchase of Canton Plaza with a $976,000 commercial loan from Regions and pledged Canton Plaza as collateral. In connection with the loan, CPI executed a promissory note, a business loan agreement, and a deed to secure debt. Oami also executed a commercial guaranty in favor of Regions which named CPI as the borrower.

The original loan was for a one-year period. When the promissory note matured in January 2004, CPI and Regions renewed the note for the same amount as the original loan and with a new maturity date of January 10, 2006. In conjunction with renewing the promissory note, CPI executed another business loan agreement, and Oami executed another commercial guaranty. Thereafter, CPI made monthly payments to Regions.

During the course of the renewed loan period, CPI was involved in litigation with one of its Canton Plaza tenants, as a result of which the tenant was awarded a judgment against CPI. One week prior to entry of that judgment, however, CPI executed a bill of sale and quitclaim deed transferring all of its assets, including Canton Plaza, to H&I, another corporation completely owned by Oami. Shortly after the sale, CPI directed Canton Plaza’s tenants to make payments to H&I rather than to CPI. Following the execution of the bill of sale and quitclaim deed, CPI became a shell entity with no assets.

When the renewed loan matured in January 2006, Regions extended the loan for another 90 days — until April 10, 2006 — in order to allow CPI to pay the entire debt or otherwise obtain substitute financing. CPI continued to make monthly payments to Regions during the 90-day extension period. After April 10,2006, Regions sent CPI several “Past Due” and “Post Maturity” notices demanding payment of the entire loan amount.

When CPI failed to pay the entire loan amount, Regions began non-judicial foreclosure proceedings with respect to Canton Plaza. Oami testified that he was surprised to discover that Canton Plaza was scheduled for a foreclosure sale, because he had not received timely notice of default and believed Regions would renew the loan. CPI subsequently filed a bankruptcy petition to stop Regions from completing a foreclosure sale.

During CPI’s bankruptcy proceeding, the bankruptcy trustee informed Oami that he was considering filing a lawsuit against Oami and H&I for the fraudulent transfer of CPI’s assets to H&I. The lawsuit was never filed, however, because Oami and H&I negotiated a settlement with the trustee, which included a payoff of the Regions’s loan and a $13,500 payment to the estate. H&I issued two checks to make this $13,500 settlement payment. H&I also issued three other checks to pay for CPI’s legal fees and expenses associated with the bankruptcy proceedings. When asked how one of his companies could write a check on behalf of another one of his companies, Oami testified only that his “accountant [got] things straightened out afterwards.”

NCO, another corporate entity owned by Oami, obtained financing to pay off the Regions loan, as contemplated by the settlement; the loan was paid off in November 2006.

After completion of the bankruptcy proceedings in August 2008, Plaintiffs filed suit against Regions. Plaintiffs alleged that Regions breached the terms of the promissory note by not extending a new loan to CPI, and that it wrongfully initiated foreclosure proceedings against Canton Plaza when CPI was not in default and was not given notice of the foreclosure proceedings. Plaintiffs sought to recover damages and attorney fees for the filing of CPI’s bankruptcy petition; expenses incurred during the bankruptcy proceeding, including monies paid to the bankruptcy trustee; and expenses and interest paid on the NCO loan that was used to pay off CPI’s debt to Regions. Plaintiffs also sought punitive damages. In its answer, Regions asserted counterclaims against CPI and Oami for attorney fees as provided for in both the business loan agreement, as well as the guaranty.

At trial, Plaintiffs called as witnesses Oami and an attorney who assisted Oami during CPI’s bankruptcy proceedings. At the close of Plaintiffs’ case-in-chief, Regions moved for a directed verdict, arguing that Plaintiffs failed to establish damages, because the evidence showed that the expenses Plaintiffs sought to recover were not incurred by CPI or Oami, but rather other entities, namely H&I and NCO. The trial court found that Plaintiffs failed to provide evidence of damages because it had no written contract or legal obligation to repay NCO or H&I. The trial court entered a directed verdict on Plaintiffs’ claims.

Following this ruling, Regions presented its case under the counterclaims. Regions called its record custodian as a witness, who testified that, from the filing of Plaintiffs’ lawsuit in 2008 through December 2010, Regions spent over $150,000 in attorney fees and other related expenses in connection with this case. On cross-examination, the records custodian testified that Regions already received approximately $17,000 in attorney fees when NCO paid off the Regions loan in 2006. At the close of Regions’s case, Plaintiffs moved for a directed verdict on Regions’s counterclaims. Plaintiffs argued that, once CPI’s debt to Regions was paid off in 2006, there were no contractual obligations to enforce, and that Regions’s defense in this case was not an enforcement of the subject agreements. The trial court granted Plaintiffs’ motion for directed verdict on Regions’s counterclaims, finding that Regions’s defense in this case did not involve its enforcement of the business loan agreement or the guaranty, and that Plaintiffs’ obligations under the note were extinguished when the note was paid in full. These cross-appeals followed.

Case No. A11A2186

1. Plaintiffs contend that the trial court erred in granting Regions’s motion for directed verdict on the ground that Plaintiffs failed to present evidence of damages. In particular, Plaintiffs argue that they provided some evidence of damages in the form of debt obligations to H&I and NCO when those companies incurred expenses on CPI’s behalf. We disagree.

“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Punctuation and footnote omitted; emphasis supplied.) Duke Galish, LLC v. Manton, 308 Ga. App. 316, 320 (2) (707 SE2d 555) (2011). Aplaintiff asserting a claim of wrongful foreclosure must establish (1) a legal duty owed to it by the foreclosing party, (2) a breach of that duty, (3) a causal connection between the breach of that duty and the injury it sustained, and (4) damages. Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 371 (1) (601 SE2d 842) (2004).

“In order to sustain [the] grant of [a] directed verdict for failure to prove damages, there must be a complete absence of any competent evidence on this issue.” (Citation and punctuation omitted.) Jimenez v. Chicago Title Ins. Co., 310 Ga. App. 9, 15 (3) (a), n. 26 (712 SE2d 531) (2011); see Smith v. Gen. Finance Corp., 143 Ga. App. 390, 391 (1) (238 SE2d 694) (1977).

We have held that a transfer of funds between corporations controlled by the same individual is not sufficient evidence of actual damages to defeat a motion for directed verdict. See DeJong v. Stern, 162 Ga. App. 529, 530 (1) (292 SE2d 115) (1982) (“In our view, the ... transfer of funds between corporations controlled by the same individual [is] not evidence of ‘actual damages.’ ”). Moreover, although two corporations may have common shareholders, officers, and directors, each corporation is a legal entity “retaining its separate and independent character,” and one corporation lacks standing to recover damages incurred by the other. Augusta Tennis Club, Inc. v. Richmond County, 219 Ga. App. 94 (1) (464 SE2d 228) (1995).

(a) CPI’s Damages

It is undisputed that H&I paid for all CPI’s bankruptcy costs, and that NCO secured a loan on behalf of CPI to payoff CPI’s loan. Although Oami was the sole owner of CPI, H&I, and NCO, the corporations were separate entities. Although Oami testified that his accountant would “straighten out” the transfer of funds between Oami’s corporations, this transfer of funds between corporations owned by Oami was insufficient to establish that CPI had sustained actual damages. See DeJong, supra, 162 Ga. App. at 530 (1). There was no evidence that these were liabilities owed by CPI. Consequently, CPI lacks standing to pursue any damages belonging to H&I or NCO. See Augusta Tennis Club, supra, 219 Ga. App. at 94 (1).

(b) Oami’s Damages

“It is axiomatic that each corporation is a separate entity, distinct and apart from its stockholders.” (Citation and punctuation omitted.) Accurate Printers, Inc. v. Stark, 295 Ga. App. 172, 175 (1) (a) (671 SE2d 228) (2008). Canton Plaza was owned in the name CPI. Although Oami was the owner of CPI, he did not enter into the contracts underlying this lawsuit — the promissory note and security deed — in his individual capacity. As a result, Oami was not a party to those contracts. Cf. id. (holding that corporation and sole owner of corporation were separate legal entities and corporation was not party to contract signed by owner in individual capacity). Therefore, Oami was not entitled to pursue the breach of contract claim. See OCGA § 9-2-20 (a) (“As a general rule, an action on a contract, . . . shall be brought in the name of the party in whom the legal interest in the contract is vestedf.]”); Accurate Printers, supra, 295 Ga. App. at 175 (1) (a). Nor was Oami entitled to pursue a claim for wrongful foreclosure. See Blanton v. Duru, 247 Ga. App. 175, 178 (3) (543 SE2d 448) (2000) (holders of security deed are proper parties to wrongful foreclosure action). Even if we were to assume otherwise, in light of the evidence that Oami was transferring funds between his corporations, he did not show actual damages. See DeJong, supra, 162 Ga. App. at 530 (1). In sum, Oami brought the action under the wrong entities.

For the foregoing reasons, Plaintiffs’ claims for breach of contract and wrongful foreclosure failed. Therefore, the trial court did not err in granting Regions’s motion for directed verdict on these grounds. As a result, Regions’s derivative claims of punitive damages and attorney fees also fail. Cf. ULQ, LLC v. Meder, 293 Ga. App. 176, 185 (6) (666 SE2d 713) (2008).

2. Plaintiffs also contend that the trial court erred in directing a verdict before allowing them the opportunity to add H&I and NCO as proper parties to the action. Plaintiffs waived any such argument, however, by failing to raise it in the trial court. See Fulton County Bd. of Assessors v. Calliope Properties, LLC, 312 Ga. App. 875, 878-879 (1) (720 SE2d 312) (2011) (a real-party-in-interest objection may be made at any time up to and including a trial on the merits; otherwise it is waived); Franco v. Cox, 265 Ga. App. 514, 515 (1) (b) (594 SE2d 717) (2004) (party waived real-party-in-interest objection by not raising it before the trial court, and the trial court was not required to add another party on its own motion).

Case No. A11A2187

3. Regions contends that the trial court erred in directing a verdict against it as to its counterclaims, because the business loan agreement and guaranty contained contractual entitlement to recover for attorney fees incurred with the enforcement of these respective agreements. We disagree.

Here, the trial court found that since Regions was not enforcing the subject agreements in connection with this lawsuit, it could not recover attorney fees. Whether Regions was entitled to attorney fees involves construction of the business loan agreement and guaranty.

In this State [,] the construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; 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.

(Citation and punctuation omitted) Lovell v. Thomas, 279 Ga. App. 696, 698 (1) (a) (632 SE2d 456) (2006).

Here, the business loan agreement pertinently provided:

Borrower agrees to pay upon demand all of Lender’s costs and expenses, including Lender’s attorneys’ fees and Lender’s legal expenses, incurred in connection with the enforcement of this Agreement. Lenders may hire or pay someone else to help enforce this Agreement, and Borrower shall pay the costs and expenses of such enforcement. Costs and expenses include Lender’s attorneys’ fees and legal expenses whether or not there is a lawsuit [.]

(Emphasis supplied.) The guaranty executed by Oami provided:

Guarantor agrees to pay upon demand all of Lender’s costs and expenses, including Lender’s attorneys’ fees and Lender’s legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender’s attorneys’ fees and legal expenses whether or not there is a lawsuit [.]

(Emphasis supplied.)

There is no merit to Regions’s claim that its defense in this lawsuit was an “enforcement” of the promissory note, business agreement, or guaranty. “[Dictionaries may supply the plain and ordinary meaning of a word.” (Citation and punctuation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 107 (1) (661 SE2d 578) (2008). Black’s Law Dictionary defines “enforce” as follows: “[t]o give force or effect to (a law, etc.); to compel obedience to ... [or] to compel a person to pay damages for not complying with (a contract).” (Punctuation omitted.) Black’s Law Dictionary 608 (9th ed. 2009). Black’s Law Dictionary similarly defines “enforcement” as follows: “[t]he act or process of compelling compliance with a law, mandate, decree or agreement.” (Punctuation omitted.) Id. Since CPI’s loan was paid in full at the time CPI and Oami filed suit in this case, Regions could not compel either CPI or Oami to comply with their obligations under the business loan agreement or guaranty, respectively.

Decided March 29, 2012.

Stevens & Stevens, Ronald S. Stevens, Andrew M. Stevens, Jacobs, King & Wallack, Cary S. King, Scott R. King, for appellants.

Parker, Hudson, Rainer & Dobbs, William J. Holley II, Rebeccah L. Bower, Scott E. Zweigel, for appellee.

Rather, Regions’s counterclaims were based on having to defend against Plaintiffs’ complaint for breach of contract and wrongful foreclosure. Significantly, Regions collected attorney fees when CPI’s loan was paid in full in 2006, and the damages sought in Regions’s counterclaims originated with the filing of Plaintiffs’ lawsuit. OCGA § 13-6-11 provides that “[t]he expenses of litigation generally shall not be allowed as a part of the damages [.]” “Under the plain language of this statute,... a defendant’s expenses of defending against a claim are not recoverable.” (Citations and punctuation omitted.) Emerson v. Brookmere Homeowners Assn., 311 Ga. App. 371, 372 (715 SE2d 775) (2011). Moreover, the underlying policy of OCGA § 13-6-11 bars “a defendant from transforming a plaintiffs case into that defendant’s damage suit for having been sued[.]” Beall v. F.H.H. Constr., Inc., 193 Ga. App. 544, 546 (4) (388 SE2d 342) (1989). Although OCGA § 13-6-11 does not bar recovery when a defendant incurs expenses in prosecuting an independent claim, see id., Regions did not assert an independent claim against Plaintiffs. As discussed above, Regions’s claims were not for the enforcement of the business loan agreement or guaranty, which had previously been resolved upon its receipt of payment in full satisfaction of the loan. Since success on Regions’s counterclaims would amount to a recovery of damages for merely having been sued by Plaintiffs, OCGA § 13-6-11 precluded Regions from recovering attorney fees. Cf. Ravenwood Church of Wicca v. Starbright, Inc., 168 Ga. App. 870, 872 (2) (310 SE2d 582) (1983). Accordingly, the trial court did not err in directing a verdict against Regions on its counterclaims for attorney fees.

4. Plaintiffs have moved this Court to impose a penalty for a frivolous appeal under Court of Appeals Rule 15 (b). We decline to impose such a penalty.

Judgments affirmed.

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

       In its bankruptcy schedule, CPI listed no assets and identified a debt of $976,000 owed to Regions.

       We note that Oami did enter into a contract with Regions in his individual capacity with respect to the commercial guaranty. However, Oami conceded that Regions never took any action to enforce the guaranty.


text:
    A11A2199.
    FLORES v. DEPENDABLE TIRE COMPANY, INC.
    (726 SE2d 776)
   DOYLE, Presiding Judge.

We granted Jacinto Flores’s application for discretionary appeal in this workers’ compensation case to determine whether the superior court properly remanded the case to the Appellate Division of the State Workers’ Compensation Board (“the Board”) for correction of legal errors in the Board’s decision. For the reasons that follow, we affirm in part and reverse in part the judgment of the superior court.

In reviewing a workers’ compensation award, both this Court and the superior court must construe the evidence in the light most favorable to the party who prevailed before the Board. The Board’s factual findings are conclusive and binding on a reviewing court when supported by any evidence, and neither this Court nor the superior court is authorized to substitute itself as a factfinding body in lieu of the Board.

Viewed in favor of Flores, the record establishes that he sustained a compensable on-the-job injury on February 12, 2008, when he injured his back while lifting a large tire. Flores did not return to work. His claim was accepted by the employer, Dependable Tire Company, Inc., which paid indemnity benefits to Flores monthly in the amount of $381.96 starting from the February 12, 2008 injury.

On November 18, 2008, as Flores was leaving a doctor’s appointment related to the February compensable injury, the vehicle in which he was riding was struck from the rear, and he was slammed into the dashboard, causing him to lose consciousness. The vehicle in which Flores was traveling was provided by the employer. Although Flores testified that he did not choose the transport service provided to him, there was evidence that the employer’s insurance company provided the vehicle because Flores requested it and that the employer was not involved in scheduling Flores’s appointments. As a result of the collision, Flores complained of pain in his neck and back, as well as in his chest, abdomen, pelvis, and knees. He was diagnosed as having acute chest, abdomen, and pelvic blunt trauma, neck sprain, and acute contusions to both knees.

The medical records reflect that prior to the November automobile accident, Flores had been evaluated for surgical treatment of his herniated disks that were related to his work-related injury. At his appointment on the day of the accident, Flores reported that his pain intensity was eight out of ten. The physician noted that Flores had “failed rehabilitation services and medications,” and Flores was again referred for surgery.

In April 2009, Flores returned to treatment, seeing Dr. Tapan but did not report the November automobile accident to him. Nevertheless, Dr. Daftari deposed that Flores again reported his pain level as an eight out of ten; that the accident aggravated Flores’s neck and back injuries; but that his diagnosis of lumbar disk herniation and cervical disk herniation was the same before and after the accident.

Ahearing was heldbefore an administrative law judge (“ALJ”) in April 2010, for the purpose of determining whether Flores had a change in condition based on the intervening accident. Flores’s counsel indicated that they filed the request for a hearing after the employer stopped paying for Flores’s medical bills. The employer’s counsel indicated that Flores had been receiving temporary total disability benefits since the work-related injury and that the intervening accident had potentially rendered him permanently disabled, which justified the suspension of his benefits.

In his order, the ALJ concluded that Flores had not suffered a change in condition. After concluding that the accident should be considered work-related, the ALJ determined that the accident was not a non-compensable, independent, intervening event resulting in the claimant’s inability to work. Consequently, the ALJ directed the employer to reinstate the indemnity benefits, pay for medical treatment related to the November accident, and provide continued treatment for the initial compensable injury. The employer appealed to the Board.

Affirming the ALJ’s award, the Board concluded that the accident did not break the chain of causation of Flores’s injury and that his condition was directly and causally linked to the work injury. Without expressly analyzing the issue of whether the accident should be considered work-related, the Board adopted the ALJ’s conclusions.

The superior court reversed the Board, concluding that the Board’s award was contrary to law and remanded the case for correction of the errors listed in the court’s order. Specifically, the superior court concluded that the Board (1) misapplied the law with respect to accidents occurring while going to and from medical appointments; (2) erred by finding that there was no change in condition after the accident because the finding was based on flawed medical evidence, which was impeached at the hearing; (3) erred by improperly ordering the recommencement of indemnity benefits even though they had not been suspended; and (4) erred by incorrectly ordering payment for medical expenses associated with the November 2008 automobile accident, which expenses were not at issue before the ALJ.

1. On appeal, Flores argues only that the superior court failed to apply the “any evidence” standard because it substituted its own credibility determination and improperly weighed the medical evidence. We agree.

Pursuant to OCGA § 34-9-204 (a),

[n]o compensation shall be payable for the death or disability of an employee if his or her death is caused by or, insofar as his or her disability, may be aggravated, caused, or continued by a subsequent nonwork related injury which breaks the chain of causation between the compensable injury and the employee’s disability.

It is the employer’s burden to establish a change in condition based on a subsequent injury.

Flores is correct that the superior court ignored the “any evidence” standard when it determined that the Board’s finding that Flores’s injury was “not significantly changed” was based on flawed medical evidence. Instead, Dr. Daftari’s testimony supports the Board’s finding that there was no change in Flores’s condition. Dr. Daftari deposed that although the accident aggravated Flores’s injury, his diagnosis of cervical and lumbar herniated disks was the same before and after the accident and that Flores’s pain intensity was the same. Because there was some evidence in the record to support the finding that there was no change in Flores’s condition, the superior court was bound by that finding and erred by concluding otherwise. Moreover, because the finding that there was no change in condition supports the Board’s order for the employer to pay medical costs resulting from the original 2008 on-the-job injury, the superior court’s judgment as to this issue is reversed and that part of the Board’s order is affirmed.

2. Nevertheless, the employer argues, and we agree, that the superior court properly reversed the Board’s order to the extent that it ordered payment for medical expenses resulting solely from the injuries Flores sustained in the November 2008 car accident.

The issue of whether an employee’s injuries were sustained while en route to or from a physician’s appointment for treatment of a work-related injury turns on the issue of whether the trip was voluntary. In Johnson Controls v. McNeil, this Court held that an accident did not arise out of the course and scope of the claimant’s employment because the trip to the doctor was voluntary — the treatment was not a prerequisite to returning to work, the employer did not set up the appointment or provide the transportation, and the employee was free to use his time for his own affairs. Conversely, in Firestone Tire & Rubber Co. v. Crawford, injuries sustained in an accident en route to an employer-mandated appointment were found to be compensable.

In this case, the employer provided transportation after it was requested by Flores’s attorney. This fact, alone, should not render the accident “work-related,” particularly in light of the following facts: (1) Flores was not going to or from work when the accident occurred; (2) the appointment was not required by the employer; and (3) the employer had no control over Flores’s appointments. Thus, the superior court correctly determined that the ALJ and the Board committed legal error by concluding that all of Flores’s injuries sustained in the November 2008 accident were compensable because the accident was work-related.

Accordingly, the superior court’s judgment is affirmed to the extent that it reversed the Board as to this issue, and the case is remanded to the Board for the correction of the errors specified herein.

3. Finally, the superior court did not err by reversing the Board’s order to the extent that it ordered the recommencement of indemnity benefits. There is no evidence of record establishing that these benefits ceased prior to the ALJ’s hearing, and the only evidence of record establishes that the employer continued to pay indemnity benefits although it ceased paying medical benefits after the November 2008 car accident.

Decided March 29, 2012.

Jeffery L. Dickerson, for appellant.

Drew, Eckl & Farnham, John G. Blackmon, Jr., Christopher A. Bennett, for appellee.

Accordingly, the superior court’s judgment is affirmed to the extent that it reversed the Board as to this issue, and the case is remanded to the Board for the correction of the errors specified herein.

Judgment affirmed in part and reversed in part.

Ellington, C. J., and Miller, J., concur in judgment only.

       (Footnotes omitted.) City of Atlanta v. Roach, 297 Ga. App. 408, 408-409 (667 SE2d 426) (2009).

       There is some confusion in the record on this point. The Administrative Law Judge’s order indicates that benefits ceased as of November 18,2008, but at the hearing, the employer stated that indemnity benefits continued, while Flores contended only that the employer stopped paying medical expenses.

       See Johnson Controls v. McNeil, 211 Ga. App. 783, 785-786 (1) (440 SE2d 528) (1994).

       See Hallisey v. Fort Howard Paper Co., 268 Ga. 57, 58-59 (1) (484 SE2d 653) (1997) (holding that some evidence supported ALJ’s finding that aggravation of initial on-the-job injury did not break the chain of causation and this Court erred by reversing); Roach, 297 Ga. App. at 411 (1).

       211 Ga. App. at 783.

       See id. at 785. See also Street v. Douglas County Road Dept., 160 Ga. App. 559 (287 SE2d 586) (1981).

       177 Ga. App. 242 (339 SE2d 292) (1985).

       See id. at 243-244 (2).

       See Johnson Controls, 211 Ga. App. at 784-785; Street, 160 Ga. App. at 560.

        See McEwen v. Bremen Bowdon Investment Co., 309 Ga. App. 170, 171 (2) (709 SE2d 908) (2011).


author: Blackwell, Judge.

text:
    A11A2295.
    GRAVE de PERALTA et al. v. BLACKBERRY MOUNTAIN ASSOCIATION, INC.
    (726 SE2d 789)
   Blackwell, Judge.

Ricardo and Tiffany Grave de Peralta own a home in the Blackberry Mountain neighborhood in Gilmer County, and they occasionally rent their home to others for a few days at a time. The Blackberry Mountain Association, Inc., an association of homeowners in the neighborhood, does not approve of rentals for a term so short, and it sued the Grave de Peraltas, seeking a declaratory judgment that the neighborhood covenants prohibit such rentals, as well as injunctive relief. The Grave de Peraltas moved for summary judgment, arguing that the relevant provision of the covenants does not apply to them and, in any event, does not prohibit rentals, even for only a few days at a time. The court below denied that motion, and the Grave de Peraltas appeal. We conclude that the covenants cannot reasonably be construed to prohibit the Grave de Peraltas from renting their home for a few days at a time, and for this reason, we reverse the judgment below.

The Association and the Grave de Peraltas agree that Section 6.01 of the Blackberry Mountain covenants — specifically the fourth sentence of that section, which is italicized below — governs their dispute:

Section 6.01 — Use of Parcels by Owners and Guests.

Except for the transitory and restricted use by guests of Owners, as limited below or by the Association through the Blackberry Mountain Rules, the use of each Parcel, whether or not improved by a residence or other structure, and the use of any Common Area by the Owner or Owners of any Parcel, shall be limited to twelve (12) persons at a time regardless of the number of owners of record of the Parcel. Such twelve (12) persons shall include married or unmarried adults and all minor children of such family or families. Should fee title ownership be taken by legal entity or more than twelve (12) persons, at the time of the original sale or transfer thereof, the fee title owners shall designate in writing the persons, not to exceed twelve (12), who shall have the right to use the owned Parcel or any Common Area and who shall have any right to use any portion of the property as Owners. The holder or holders of legal title shall designate in writing the names of persons entitled to use, whether by lease, agreement, or otherwise, the Parcel and Common Areas under this provision; and such designation shall not be changed more than three (3) times in any one calendar year without the express consent of the Association.
Subject to Blackberry Mountain Rules from time to time in effect respecting the number of guests permitted for special occasions or by special permit of the Association and limitations on the use of Common Areas or facilities by guests, including denial of entrance or other privileges of guests who have abused or violated said Blackberry Mountain Rules, the maximum number of guests present on Blackberry Mountain at any one time by virtue of permission of all the Owners of any one Parcel shall not exceed twenty (20) persons; i.e., the total number of guests allowed on Blackberry Mountain at any one time or day shall not exceed twenty (20) persons for any one Parcel. The acts or omissions of any guests shall be deemed the acts or omissions of the Owner or Owners at whose invitation said guests are present to the end that such Owner shall be fully responsible for any violation of the Blackberry Mountain Rules or of this Declaration or of law committed by such guest.

(Emphasis supplied.) The Association contends that, under the fourth sentence of Section 6.01, the Grave de Peraltas must designate all persons, including renters, entitled to use their home, and that designation cannot be changed more than three times each year without leave of the Association. Consequently, the Association reasons, the Grave de Peraltas cannot rent their home to others for a term of less than four months without its consent because, if they did, they would have to change their designation more frequently. The Grave de Peraltas contend, on the other hand, that the fourth sentence of Section 6.01 applies only to those parcels described in its third sentence — parcels owned by an entity or group of twelve or more persons — and in any event does not prohibit rentals for a few days at a time.

We begin with the settled principles that inform any interpretation of covenants restricting the use of land. Generally speaking, “[Restrictive covenants will be construed to carry out the intention of the parties.” Westpark Walk Owners v. Stewart Holdings, 288 Ga. App. 633, 636 (2) (655 SE2d 254) (2007). When a covenant is clear and unambiguous, it is attributed its plain meaning. See Lake Arrowhead Property Owners Assn. v. Dalton, 257 Ga. App. 655, 656 (572 SE2d 25) (2002). When the covenant is less clear, a court must attempt to ascertain its intent from an examination of the entire document in which the covenant is found. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Statham, 243 Ga. 448, 449 (254 SE2d 833) (1979). “[I]f the manifest intent of the parties can be ascertained from the covenants as a whole, no ambiguity exists,” and there is no need for judicial construction. Westpark, 288 Ga. App. at 636 (2). But if the intent of the parties cannot be discerned from the document as a whole, any ambiguity must be strictly construed in favor of the property owner, Douglas v. Wages, 271 Ga. 616, 617 (1) (523 SE2d 330) (1999), inasmuch as “restrictions on private property are generally not favored in Georgia,” Canterbury Forest Assn. v. Collins, 243 Ga. App. 425, 427 (1) (532 SE2d 736) (2000), and generally speaking, an owner of land has the right to use it for “any lawful purpose.” Holbrook v. Davison, 258 Ga. 844, 845 (1) (375 SE2d 840) (1989). Thus, “[Restrictions upon an owner’s use of land must be clearly established,” id., and covenants restricting the use of real property may not be enlarged or extended by judicial construction. Lake Arrowhead, 257 Ga. App. at 656. See also England v. Atkinson, 196 Ga. 181, 184 (1) (26 SE2d 431) (1943) (‘When it is sought to restrict one in the use of his own private property for any lawful purpose, the ground for such interference must be clear and indubitable. The word indubitable in its literal sense means without doubt.”) (citation and punctuation omitted); King v. Baker, 214 Ga. App. 229, 235 (5) (447 SE2d 129) (1994) (“A covenant plainly expressed cannot be broadened by parol proof of a covenantor”) (citation omitted).

The fourth sentence of Section 6.01 says nothing at all about rentals, and it certainly does not clearly and unambiguously prohibit any rentals. The question, then, is whether we can discern a manifest intention to prohibit such rentals from an examination of the covenants as a whole. We cannot. In the first place, it is not apparent to us that the fourth sentence is meant to apply to the Grave de Peraltas at all. By its own terms, the fourth sentence requires an owner to “designate in writing the names of persons entitled to use, by lease, agreement, or otherwise, the Parcel and Common Areas under this provision,” (emphasis supplied), but it is unclear whether “under this provision” is intended to identify certain designations or the kind of persons that must be designated. If it is meant to identify certain designations, then presumably it is speaking of the requirement to designate described in the third sentence, which is the only other requirement to designate specified in Section 6.01. And if that were the case, the fourth sentence would not apply to the Grave de Peraltas at all, inasmuch as the third sentence is expressly limited to parcels owned by an entity or group of twelve or more persons.

On the other hand, if “under this provision” is meant to identify the kind of persons that must be designated, then the designation requirement would appear to apply to the Grave de Peraltas. But that would not help the Association in this case because, we think, short-term renters without an ownership interest are not among the persons who must be designated. As a whole, the first paragraph of Section 6.01 is concerned with the use of individual parcels, as well as the common areas of Blackberry Mountain, by owners. Indeed, the first sentence of that paragraph speaks of “the use of each Parcel... and the use of any Common Area by the Owner or Owners of any Parcel,” and the third sentence speaks of “the persons . . . who shall have the right to use the owned Parcel or any Common Area and who shall have any right to use any portion of the property as Owners.” Accordingly, if the fourth sentence applies to the Grave de Peraltas at all, it can only be reasonably understood to require that they designate the persons entitled to use their property “as Owners.”

Decided March 29, 2012.

Clifford S. Lancey, for appellants.

Swift, Currie, McGhee & Hiers, Moren R. Cave, for appellee.

This understanding of the fourth sentence is confirmed, we think, by the fact that an owner cannot designate more than twelve persons entitled to use the property under the third sentence, but no such limitation applies to a designation under the fourth sentence. If any person entitled to use a parcel, whether an owner or not, had to be designated, then the covenants would permit a parcel having a corporate owner or more than twelve individual owners to designate only twelve users, whereas a parcel owned by only one or two owners could designate three hundred users. That, almost certainly, is not what was intended by Section 6.01, and so the fourth sentence must be understood to refer only to a designation of persons entitled to use “as Owners.” The Association does not contend that the persons to whom the Grave de Peraltas occasionally rent their home use the property “as Owners,” and for that reason, we conclude that Section 6.01 cannot reasonably be construed to prohibit their rentals of their home. Accordingly, the Grave de Peraltas are entitled to summary judgment, and we reverse the decision below.

Judgment reversed.

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

       The Association only objects to “short-term rentals,” which it appears to define as a rental for a term of less than four months.

       The court below certified its denial of the motion for summary judgment for immediate review, and the Grave de Peraltas timely filed an application for interlocutory review, which we granted. See OCGA § 5-6-34 (b).

       In other words, it is unclear whether this sentence should be read as “designate in writing . . . under this provision” or “the names of persons entitled to use . . . under this provision.”

       If the fourth sentence is limited to those parcels identified in the third sentence, then the third and fourth sentences are somewhat duplicative. If, on the other hand, the fourth sentence stands alone, its requirements largely would subsume those of the third sentence, rendering much of the third sentence surplusage. The usual rule that we will not interpret a contract in a way that renders one or more of its provisions meaningless, therefore, is simply not very helpful in this case. See Deep Six, Inc. v. Abernathy, 246 Ga. App. 71, 74 (2) (538 SE2d 886) (2000) (a construction that renders portions of the contract language meaningless should be avoided).

       Section 6.01 refers to “Owners,” and Section 1.06 of the covenants defines “Owner” as “the record owner ... of a fee simple title to any parcel.”