text:
    A14A1325.
    VINEVILLE CAPITAL GROUP, LLC v. McCOOK.
    (766 SE2d 156)
   Branch, Judge.

Under OCGA § 44-14-80, title to real property conveyed by a security deed that has not been cancelled or foreclosed upon after a certain period of time reverts to the grantor as a matter of law. The statute sets the default time period at seven years starting, depending on the circumstances, from either the maturity of the debt or from the date of the original conveyance. Id. The parties to the security deed are allowed, however, to extend the time to 20 years by so designating in the security deed. Id. The question in this case is whether the relevant security deed contains the necessary designation. The trial court held that an issue of fact remains as to the interpretation of the relevant security deed, and it therefore denied the appellant bank’s motion to dismiss. We disagree and reverse.

The relevant facts are not in dispute. These facts show that Thomas McCook, Jr., obtained two loans and signed two deeds to secure debt concerning the same property. On or about July 1, 2002, he obtained a $1 million loan from his father, Thomas McCook, Sr., and signed a demand note to repay the loan. The same day, McCook, Jr., entered into a security deed in which he conveyed title to his personal residence located at 760 Fieldstone Drive in Macon (the premises) to his father as security for the loan; this “McCook security deed,” at issue in this case, was duly recorded in the county real property records on July 2, 2002. In 2005, McCook, Jr., obtained a separate loan of more than $500,000 from Regions Bank and executed a security deed for the same premises in favor of Regions, which deed was also duly recorded in the county property records, thereby creating a second position security interest in the same premises. As of July 2, 2009, seven years after the conveyance of the McCook security deed, McCook, Sr., had not foreclosed upon or cancelled the McCook security deed.

In 2012, Regions Bank sued McCook, Jr., who had defaulted on the Regions loan, and obtained a consent judgment for more than $750,000. In February 2013, appellant Vineville Capital Group, LLC purchased and was assigned the Regions security deed and the rights to the consent judgment obtained by Regions Bank against McCook, Jr.; thereafter Vineville initiated steps to foreclose on the premises.

On May 1, 2013, McCook, Jr., sued Vineville and others seeking to enjoin the foreclosure but later dismissed his action without prejudice. Meanwhile, two days prior to that dismissal, McCook, Sr., filed the instant action in which he, too, sought to enjoin Vineville from foreclosing on the premises. McCook, Sr., also sought a declaration that the McCook security deed remained valid and that he therefore still held the first priority security interest in the premises. The trial court granted McCook, Sr., a temporary restraining order enjoining the foreclosure. Vineville then moved to dismiss the litigation for failure to state a claim or, in the alternative, for judgment on the pleadings on the ground that title to the premises described in the McCook security deed had reverted to McCook, Jr., by operation of law on July 2, 2009, and that therefore, through the Regions security deed, Vineville held the first priority security interest in the premises. Following a hearing, the trial court denied the motion and held that there was a “genuine dispute” as to whether the parties to the McCook security deed intended to invoke the 20-year time period for reversion of security deeds. The court also extended the interlocutory injunction. This Court granted Vineville’s application for an interlocutory appeal of the trial court’s decision.

On appeal of a trial court’s ruling on a motion to dismiss, we conduct a de novo review. Penny v. McBride, 282 Ga. App. 590 (639 SE2d 561) (2006). “However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.” Ga. Dept. of Community Health v. Data Inquiry, 313 Ga. App. 683 (722 SE2d 403) (2012) (citation and punctuation omitted). Our role is “to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.” Penny, 282 Ga. App. at 590 (citation, punctuation and footnote omitted); see also Southwest Health & Wellness v. Work, 282 Ga. App. 619, 623 (2) (639 SE2d 570) (2006) (on appeal of a motion for judgment on the pleadings, “the issue is whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law”) (citation and punctuation omitted).

OCGA § 44-14-80 (a) (1) determines when title reverts to the grantor for security deeds with stated or fixed dates of maturity. Subsection (a) (2) determines when title reverts where “the maturity of the debt or debts or the maturity of the last installment thereof is not stated or fixed.” OCGA § 44-14-80 (a) (2). We agree with the parties that because McCook, Jr.’s original debt to his father was not “stated or fixed,” subsection (a) (2) applies in this case.

Subsection (a) (2) provides that title to real property conveyed to secure a debt reverts to the grantor seven years after the date of the conveyance; it also provides that in order to obtain the 20-year reversionary period (which would also run from the date of the conveyance) the parties to the security deed must show “by affirmative statement contained in the record of conveyance” that they “intend to establish a perpetual or indefinite security interest in the real property”:

If the maturity of the debt or debts or the maturity of the last installment thereof is not stated or fixed, title to real property conveyed to secure a debt or debts shall revert at the expiration of seven years from the date of the conveyance as stated in the record or, if not recorded, in the conveyance; provided, however, that where the parties by affirmative statement contained in the record of conveyance intend to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts, the title shall revert at the expiration of 20 years from the date of the conveyance as stated in the record or, if not recorded, in the conveyance [.]

OCGA § 44-14-80 (a) (2).

McCook, Sr., contends that an “affirmative statement” sufficient to create a 20-year reversionary period can be found on the first page of the McCook security deed in the single word “forever” found in the second paragraph of the deed. In full, the first page of the McCook security deed provides as follows:

[1] In consideration of One Million Dollars ... to him paid, receipt of which is hereby acknowledged, Thomas H. McCook, Jr. of Bibb County, Georgia of the first part, has this day bargained and sold and does hereby transfer and convey unto Thomas Harlan McCook . . . his successors, heirs, executors, administrators and assigns, of the second part, the following described tract of land, to wit: [the premises]
[2] Said party of the second part, his successors, heirs, executors, administrators and assigns to have and to hold said tract of land forever, in FEE SIMPLE.
He covenant [s] that he is lawfully seized and possessed of said described premises, and has a good title thereto, and right to convey same and that said land is unencumbered.
He warrant[s] the title to said described premises unto the said party of the second part, and his successors, heirs, executors, administrators and assigns, against the lawful claims of all persons whomsoever.
[3] This conveyance is intended to operate as provided in Sections 44-14-60,44-14-66,44-14-210 of the Official Code of Georgia of 1981 (Michie), and Acts amendatory thereof, in regard to sales of property to secure debt, and to pass the title to said property into the said party of the second part. The debt hereby secured being one certain principal note for said sum of One Million Dollars ... of even date herewith, and payable to the order of Thomas Harlan McCook . . . payable on demand, according to the terms of a Promissory Note dated July 1, 2002.

The Code sections referred to in the third paragraph quoted above pertain to deeds to secure debt.

McCook, Sr.’s argument is that because the word “forever” found in paragraph 2 and the word “perpetual” found in OCGA § 44-14-80 can be seen as synonymous, the McCook security deed contains an “affirmative statement . . . intended] to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts” as required by OCGA § 44-14-80 (a) (2), and that therefore, under the McCook security deed, title to the premises will only revert to McCook, Jr., 20 years from the date of the original conveyance, i.e., July 2, 2022. We disagree for the following reasons.

1. In its first two enumerations of error, Vineville contends the trial court erred by holding that parol evidence could be used to determine whether the McCook security deed contains the necessary OCGA § 44-14-80 “affirmative statement” and by failing to find as a matter of law that the McCook security deed, in fact, does not contain the affirmative statement required by the statute.

(a) The trial court denied Vineville’s motion to dismiss in part on the grounds that “there is a genuine dispute as to whether the parties intended the habendum clause as an affirmative statement within the meaning of OCGA § 44-14-80 (a)” and that McCook, Sr., could possibly introduce evidence sufficient to warrant a declaration that the McCook security deed was still valid and in force. We agree with Vineville that to the extent the trial court held that parol evidence could show that the parties to the McCook security deed intended to invoke the 20-year reversionary period, it erred.

The plain language of OCGA § 44-14-80 (a) (2) places the burden on parties who desire to create a perpetual or indefinite security interest to do so “by affirmative statement contained in the record of conveyance.” OCGA § 44-14-80 (a) (2). Thus, the “affirmative statement” must be found in the security deed itself. Because parol evidence would introduce information not contained in the record of conveyance, it cannot be used, as the trial court appears to have held, to supplement the meaning to clarify whether the parties intended to invoke the 20-year reversionary period.

It is true that Georgia law provides that if a court cannot glean the intention of the maker from the contents of the deed, “it may hear parol evidence to prove the maker’s intention.” OCGA § 44-6-21; see also Second Refuge Church of Our Lord Jesus Christ v. Lollar, 282 Ga. 721, 725 (653 SE2d 462) (2007) (extrinsic evidence admitted only where deed’s text “is so ambiguous that its meaning cannot be determined through application of the ordinary rules of textual construction”) (footnote omitted). But it is well established that “the terms of a specific statute govern over those of a more general statute.” Newton v. Lawson, 313 Ga. App. 29, 33 (2) (720 SE2d 353) (2011) (punctuation and footnote omitted). Here, OCGA § 44-14-80 is the more specific statute in that it specifies how to invoke the 20-year reversionary period; it therefore governs over OCGA § 44-6-21. For these reasons, we hold that to the extent the trial court held that parol evidence could be used to determine whether the parties to the McCook security deed intended to invoke the 20-year reversionary period, it erred.

(b) Second, we agree with Vineville and hold as a matter of law that the McCook security deed does not contain an affirmative statement showing that the parties “intend [ed] to establish a perpetual or indefinite security interest in the real property” as required by OCGA § 44-14-80 (a) (2).

“The construction of a deed presents a question of law which this Court reviews de novo.” Lollar, 282 Ga. at 724 (2) (footnote omitted). “The cardinal rule of construction of deeds, as well as other contracts, is to ascertain the intention of the parties. If that intention be clear from the deed and circumstances of the transaction and contravenes no rule of law, it should be enforced.” Keith v. Chastain, 157 Ga. 1, 6 (121 SE 233) (1923) (citation and punctuation omitted). See also Greene v. Greene, 311 Ga. App. 132 (714 SE2d 650) (2011) (where the language is unambiguous, a court must enforce the deed as written). “[T]he whole instrument is to be construed together so as to give effect, if possible, to the entire deed and the construction which will uphold a deed in whole and in every part is to be preferred.” Shoaf v. Bland, 208 Ga. 709, 711 (2) (69 SE2d 258) (1952) (citation and punctuation omitted). And “[n]o prescribed form is essential to the validity of a deed to lands or personalty.” OCGA § 44-5-33. Nevertheless, “words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning.” OCGA § 13-2-2 (2).

The phrase “forever, in fee simple” is found in what is commonly known as the “to have and to hold” or habendum clause of the McCook security deed (found in paragraph 2 of the deed as numbered for this opinion). The traditional purpose of the habendum clause is to define the estate which the grantee is to have in the property granted. Keith, 157 Ga. at 5; see also 2 Patton and Palomar on Land Titles § 345 (3d ed.) (“The role of the habendum was to repeat the name of the grantee with a statement of the estate conveyed, and to what use.”). And habendum clauses with the language “forever, in fee simple” are often included on form deeds provided in practice treatises. See, e.g., Ga. Real Estate Title Exam. And Closings, §§ 4:4 & 4:5; 4P1 Nichols Cyc. Legal Forms § 56:425; 8 Ga. Pleading, Practice and Legal Forms § 44-5-33, Form 2.

The word “forever” in the habendum clause indicates the unlimited duration of the estate rather than the nature of the security interest. See First Nat. Bank of Snyder v. Evans, 169 SW2d 754, 756-757 (Tex. Civ. App. 1943) (where the word “forever” in the habendum clause was X’ed out and replaced with the words “as set out above,” the duration of the estate was controlled by a duration-limiting provision found earlier in the deed). Compare OCGA § 44-6-81 (“An estate for life may be either for the life of the tenant or for the life of some other person or persons.”); OCGA § 44-6-100 (“An estate for years is one which is limited in its duration to a period which is fixed or which may be made fixed and certain”). Indeed, “[a]n absolute or fee simple estate is one in which the owner is entitled to the entire property with unconditional power of disposition during his life and which descends to his heirs and legal representatives upon his death intestate.” OCGA § 44-6-20. See also 31 CJS Estates § 12 (“A fee simple estate is one by which a tenant holds lands, tenements, or hereditaments to himself and his heirs, forever.”); Latham Homes Sanitation v. CSX Transp., 245 Ga. App. 573, 575 (538 SE2d 107) (2000) (the words “forever, in fee simple,” along with other standard phrases, such as “successors and assigns,” “will warrant and defend the title thereof against the claim of all persons,” typically indicate a fee simple title) (citations and punctuation omitted). In short, the word “forever” and the phrase “forever, in fee simple” are words of art, and although these words may be no longer necessary to convey title in fee simple, they have long had a peculiar meaning under the law of this State. In the McCook security deed, they are used in this traditional sense. We therefore conclude that neither the word “forever” nor the phrase “forever, in fee simple” constitutes an affirmative statement showing that the parties “intended] to establish a perpetual or indefinite security interest in the real property,” as required by OCGA § 44-14-80 to invoke the 20-year reversionary period.

In addition, paragraph 3 of the McCook security deed provides that the conveyance is intended to operate as a security deed, and it identifies the debt being secured and indicates that the deed is intended to operate as provided in certain Code sections that govern deeds to secure debt. Nothing in this paragraph of the McCook security deed suggests that the parties to that deed intended to invoke the 20-year reversionary period. And our review of the remainder of the security deed shows that no other paragraph of the deed does so, either.

Because the word “forever” as used in the habendum clause of the McCook security deed refers to the duration of the estate being granted rather than the nature of the security interest and there being no other indication that the parties intended to invoke the 20-year reversionary period for deeds to secure debt, we conclude that the seven-year default period applies in this case. The undisputed facts of the case show that title to the McCook security deed was conveyed on July 1, 2002, and recorded one day later; the deed therefore reverted to McCook, Jr., on July 2,2009; at the latest, seven years after the conveyance of the McCook security deed. All of McCook, Sr.’s claims rely upon the continuing validity of his security interest in the premises. Without a secured interest in the premises, McCook, Sr.’s claims therefore must fail as a matter of law. The trial court therefore erred by denying Vineville’s motion to dismiss because the allegations of McCook, Sr.’s complaint, even when construed in the light most favorable to McCook, Sr., disclose with certainty that he would not be entitled to relief under any state of provable facts.

Decided November 19, 2014

Hatcher, Stubbs, Land, Hollis & Rothschild, Gregory S. Ellington, David L. Mize, William B. Hardegree, for appellant.

Parker, Hudson, Rainer & Dobbs, Darren E. Gaynor, Peter F. Busscher, for appellee.

2. Vineville’s remaining enumerations of error regarding the propriety of the trial court’s interlocutory injunction have been withdrawn and are mooted by our decision in Division 1.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       McCook, Sr., passed away on September 17, 2013 and his estate has been substituted as the plaintiff in this matter.

       On February 4, 2009, McCook, Sr., loaned an additional $1.5 million to McCook, Jr., and this additional loan was secured by the McCook security deed. McCook, Jr., does not, however, contend that this event extended the reversionary period.

       Reversion of title to the grantor bars all actions to foreclose and to recover the property and bars the exercise of any power found in the deed to secure debt. OCGA § 44-14-83.

       The second page of the McCook security deed has nine paragraphs of terms related to renewals and extensions, subrogation, indemnity, insurance, acceleration, time being of the essence, default, foreclosure, and assignment.

       OCGA § 44-14-60 provides that deeds to secure debt convey title of the property to the grantee until the debt is paid and the grantor reserves a right to have the property reconveyed; OCGA § 44-14-66 has provisions regarding the right of the grantor of a security deed to have the property reconveyed; and OCGA § 44-14-210 includes provisions regarding levy and sale of property including by persons holding legal title to the property pursuant to a deed to secure debt.

       The habendum clause is defined in Black’s as “[t]he part of an instrument, such as a deed or will, that defines the extent of the interest being granted and any conditions affecting the grant.” Black’s Law Dictionary (9th ed. 2009).

       Pindar explains that the habendum clause, which can include the words “forever, in fee simple,” contains “customary language”; that the language “actually serves no useful purpose and could be omitted entirely’; and that “[a]ny change in the usual habendum by unskilled scriveners may be treacherous, creating unexpected contingent remainders and reversions.” 2 Ga. Real Estate Law & Procedure, § 19:29 (7th ed.).

       See OCGA § 44-6-21 (“Every properly executed conveyance shall he construed to convey the fee unless a lesser estate is mentioned and limited in that conveyance.”); 1 Pindar’s Ga. Real Estate Law & Procedure § 7:6 (7th ed.) (Georgia law “presumes an intention to convey a fee from the use of a simple granting clause naming a designated grantee.”).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0814.
    DAVIS v. THE STATE.
    (764 SE2d 588)
   Miller, Judge.

A jury convicted Melvin James Davis of rape (OCGA § 16-6-1 (a) (1)), aggravated child molestation (OCGA § 16-6-4 (c)), and enticing a child for indecent purposes (OCGA § 16-6-5 (a)). Davis appeals from the denial of his motion for new trial, contending that (1) the State improperly destroyed evidence; (2) the trial court erroneously instructed the jury on the burden of proof; and (3) his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on February 18, 2005, Davis called his ex-girlfriend, L. C., around 3:00 p.m. and told her that he had some money to give her. L. C. sent her then twelve-year-old sister, K. C., and her six-year-old son to retrieve the money from Davis at his house, which was approximately two blocks from K. C. and L. C.’s home.

K. C. and her nephew walked to Davis’s house. When they arrived, Davis told K. C.’s nephew to go play with Davis’s own young son, and the two boys went into Davis’s son’s bedroom. Meanwhile, Davis told K. C. to come into his bedroom to get the money. Davis then locked the bedroom door and used both hands to pull down K. C.’s pants. Davis pulled down K. C.’s underwear and told her to get on the bed. K. C. was scared. Davis then took off his clothes and put his penis into K. C.’s vagina.

During intercourse, Davis received a call from L. C., who was worried because the children had been gone for 30 minutes. Davis got up from the bed to answer the phone and told L. C. that the children would be home soon. Davis then resumed raping K. C. until he ejaculated inside of her. The rape lasted for a total of ten to fifteen minutes.

Afterward, Davis gave K. C. some money and told her that he would hurt her if she told anyone what had happened. K. C. and her nephew walked back home. When she arrived home, K. C. was walking with her legs spread apart, as if she was hurt. L. C. asked K. C. what was wrong. K. C. was afraid to tell her sister what happened but later revealed to her mother that Davis had raped her. L. C. then called the police and reported the rape.

K. C.’s mother took her to the hospital, where a sexual assault nurse conducted an examination that evening. The nurse found a fresh abrasion on K. C.’s vagina,' consistent with nonconsensual sexual intercourse. K. C. was also bleeding quite a bit around her cervix. The nurse swabbed K. C.’s vaginal area. Subsequent DNA testing of the swabs indicated the presence of male DNA, although the amount was insufficient to create a profile for testing.

Shortly after the rape, K. C. missed her period. On April27,2005, an obstetrician examined K. C. and determined, based on ultrasound measurements, that K. C. was approximately nine weeks pregnant. In early May, K. C. had an abortion at a medical clinic. After K. C.’s abortion in May 2005, biological material was collected, placed in formaldehyde, per the clinic’s policy, and turned over to an investigator from the State.

The biological material collected from K. C.’s abortion was received by the GBI in May 2005, but was not analyzed until October 2005. A GBI forensic biologist was unable to obtain any usable DNA from the biological material, likely because the sample had been stored in formaldehyde, which can inhibit the recovery of DNA in as little as two or three days. In January 2007, the biological material was destroyed by the GBI crime lab.

1. Davis contends the State improperly destroyed the biological material collected after K. C.’s abortion, which could have shown that K. C. was impregnated after the rape, violating both OCGA § 17-5-56 and his due process rights. We disagree.

(a) The State did not violate OCGA § 17-5-56.

OCGA § 17-5-56 (a) pertinently provides:

. . . [Governmental entities in possession of any physical evidence in a criminal case, including, but not limited to, a law enforcement agency or a prosecuting attorney, shall maintain any physical evidence collected at the time of the crime that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime as provided in this Code section. . . .

(Emphasis supplied.)

“Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.” (Footnote omitted.) Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009). OCGA § 17-5-56,byitsplainlanguage, applies to physical evidence containing biological material that could identify the perpetrator and is collected at the time of the crime. See State v. Mussman, 289 Ga. 586, 589 (1) (713 SE2d 822) (2011). Thus, OCGA § 17-5-56 does not apply to the biological material collected at K. C.’s abortion more than two months after the crime occurred. Moreover, by the time the sample came into the possession of the State, it had already been contaminated due to the storage procedure used by the medical clinic, and there was no usable biological material that would “relate to the identity of the perpetrator.” OCGA § 17-5-56 (a). Accordingly, there was no violation of OCGA § 17-5-56.

(b) The State did not violate Davis’s due process rights when it destroyed the biological material.

To determine if a defendant’s due process rights have been violated where, as here, the lost evidence could have been exculpatory, but where it is not known that the evidence would have been exculpatory, this Court considers whether the evidence was constitutionally material and whether the [State] acted in bad faith. Evidence is constitutionally material when its exculpatory value is apparent before it was lost or destroyed and is of such a nature that a defendant would be unable to obtain other comparable evidence by other reasonably available means.

(Citation omitted.) Mussman, supra, 289 Ga. at 590 (2).

Here, while Davis may not have been able to obtain comparable evidence, the biological material could not be considered constitutionally material because it had no apparent exculpatory value at the time the State received it. Notably, the evidence shows that the biological material from K. C.’s abortion was contaminated by formaldehyde. The fetal sample thus had no exculpatory value because no DNA could be extracted from it.

Even assuming that the destroyed evidence was constitutionally material, there is no evidence that the State engaged in bad faith. The private clinic’s contamination of the sample cannot be attributed to the State. See State v. Brady, 287 Ga. App. 626, 627 (653 SE2d 72) (2007) (no bad faith on the part of the State where hospital destroyed child’s vaginal swab in accordance with its policy). Bad faith is reserved for those cases in which the State’s conduct indicates that the evidence could form a basis for exonerating the defendant. See Mussman, supra, 289 Ga. at 591 (2). Here, the State destroyed the biological material after discovering that it had no usable DNA. Consequently, the State’s destruction of the evidence cannot be said to have been in bad faith.

2. Davis contends that the trial court erred in charging the jury on the burden of proof, specifically, the court’s instruction that “the burden shifts to the defendant to prove innocence.” We disagree.

With regard to the burden of proof, the trial court instructed the jury as follows:

This defendant enters upon the trial of this case with the presumption of innocence in his favor. This presumption remains with the defendant until it is overcome by the state of the evidence which is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the offense or offenses charged.
No person shall be convicted of any crime unless and until each element of a crime is proven beyond a reasonable doubt. The burden of proof rests upon the [Sjtate to [prove] every material allegation of the indictment and every essential element of the crime beyond a reasonable doubt. . . .
There is no burden of proof upon the defendant whatever, and the burden shifts to the defendant to prove innocence. However, the [Sjtate is not required to prove the guilt of the accused beyond all doubt or to a mathematical certainty.
A reasonable doubt means just what it says. It is the doubt of a fair-minded, impartial juror, honestly [seeking the truth]. It is a doubt based on common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given. And that doubt may arise from a consideration of the evidence, a lack of evidence, a conflict in the evidence, or any combination of these elements.
If, after giving consideration to all these facts and circumstances of the case your minds are wavering, unsettled, or unsatisfied, then that is a doubt of the law and you should acquit the defendant. But, if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the defendant. If the [S]tate fails to prove the defendant’s guilt beyond reasonable doubt, it would be your duty to acquit the defendant.

After the trial court finished its instructions, D avis reserved his right to object to the jury charges.

It is axiomatic that no burden is ever placed on a criminal defendant to establish innocence, and charges which place any burden of persuasion upon the defendant in criminal cases shall not be given, and such charges will be deemed erroneous and subject to reversal, absent harmless or invited error.

(Punctuation and footnote omitted.) Bridges v. State, 268 Ga. 700, 703 (2) (b) (492 SE2d 877) (1997). However, an erroneous jury instruction cannot be considered in isolation, but must be considered in the context of the entire jury charge on the record as a whole to determine whether there is a reasonable likelihood that the jury improperly applied the challenged instruction. Id.

Here, the trial court properly instructed the jury during its oral instructions that Davis was presumed innocent; that the presumption of innocence remained in place until the State overcame the presumption by convincing the jury beyond a reasonable doubt that Davis was guilty; and that, if the State did not prove guilt beyond a reasonable doubt, then the jury was required to acquit Davis. The trial court also repeatedly instructed the jury that the State bore the burden of proving each element beyond a reasonable doubt. Moreover, the written charge correctly stated the law and was sent out with the jury. See Llewellyn v. State, 241 Ga. 192, 195 (2) (243 SE2d 853) (1978) (approving the practice of giving the jury written instructions). Considering the instructions as a whole, there is no reasonable likelihood that the trial court’s inadvertent slip of the tongue shifted the burden of proof to Davis. See Pitchford v. State, 294 Ga. 230, 239 (5) (751 SE2d 785) (2013) (inadvertent slip of the tongue not reversible error). Accordingly, this enumeration presents no grounds for reversal.

3. In his last enumeration of error, Davis contends that his trial counsel was ineffective.

In order to prevail on a claim of ineffective assistance, [Davis] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Davis] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Davis] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

(Citations and punctuation omitted.) Hampton v. State, 279 Ga. 625, 626-627 (619 SE2d 616) (2005).

(a) Davis contends that trial counsel was ineffective in failing to investigate alternate sources of K. C.’s pregnancy, vaginal bleeding and other injuries. We disagree.

Davis testified at trial that he did not touch K. C. in a sexual way. He also testified that he did not know how K. C. was injured, why there was male DNAin her vagina, or what happened to her after she left his home. The defense theory of the case was that K. C.’s version of events was inconsistent and that she was impregnated in early March, after Davis’s arrest. At the hearing on Davis’s motion for new trial, trial counsel testified that the defense theory was that K. C.’s testimony was not credible in light of the fact that there was no DNA evidence connecting Davis to the crime. Trial counsel testified that he did not investigate alternate sources of injury or pregnancy because the theory of the case was simply that Davis had not attacked K. C. Trial counsel also testified that identifying an alternate sexual partner might have conflicted with the Rape Shield Statute (former OCGA § 24-2-3).

The Rape Shield Statute provides that “in any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination[.]” (Citations and punctuation omitted.) Brown v. State, 225 Ga. App. 49, 51 (1) (c) (483 SE2d 318) (1997); see also Green v. State, 221 Ga. App. 436, 437 (472 SE2d 1) (1996) (evidence that 13-year-old victim was sexually active is precisely the type of irrelevant, prejudicial evidence the Rape Shield Statute is intended to exclude).

The [Rape Shield Statute] is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. . . . Where, however, evidence of sexual activity between the victim and persons other than the defendant has been relevant on some issue..., we have allowed its admission by creating exceptions to the Rape Shield Statute ... when the State introduces medical evidence which indicates that the child has been sexually abused[.]

(Citation, punctuation and footnote omitted.) Williams v. State, 263 Ga. App. 597, 599 (1) (588 SE2d 790) (2003). Any sexual contact after the crime, however, would not have been relevant to K. C.’s injuries and would have been highly prejudicial. See Crane v. State, 199 Ga. App. 548, 549 (2) (405 SE2d 550) (1991) (victim’s subsequent sexual activities are prejudicial and irrelevant).

Here, trial counsel’s strategy was to show that K. C. was not credible and was impregnated after the rape. “This Court will not, with benefit of hindsight, second-guess defense trial strategies therein. Absent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.” (Citation omitted.) Ellicott v. State, 320 Ga. App. 729, 738 (6) (740 SE2d 716) (2013). Moreover, in light of K. C.’s testimony, her immediate outcry and the corroborating physical evidence, such as the male DNAin her vagina and the vaginal injury consistent with forced penetration, it is not reasonably likely that the result of Davis’s trial would have been different even in the absence of trial counsel’s alleged errors.

(b) Davis also contends that trial counsel erred in failing to exclude the evidence of K. C.’s pregnancy. Again, we disagree.

At the hearing on Davis’s motion for new trial, trial counsel testified that his trial strategy was to show that, based on the doctor’s testimony regarding the age of the fetus, K. C. was sexually active and impregnated more than two weeks after the rape occurred. Trial counsel also testified that he believed the destruction of the biological material from K. C.’s abortion was favorable to the defense because the State had no DNA evidence connecting Davis to the crime. Trial counsel’s decision to rely on the evidence of pregnancy to help buttress Davis’s defense that he did not attack K. C. was a matter of reasonable trial strategy and does not amount to ineffective assistance. “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001).

Moreover, as set forth above, even assuming trial counsel was deficient in failing to exclude the evidence regarding K. C.’s pregnancy, there is no reasonable probability that the jury’s verdict would have been different in light of the overwhelming evidence of Davis’s guilt.

(c) Davis also contends that trial counsel was ineffective in failing to object to the prosecutor’s closing argument. We discern no error.

During closing argument, the prosecutor said that K. C.’s bleeding was evidence of injury. The trial court instructed the jury that counsels’ closing statements were not evidence and that the case was to be decided on the facts in evidence, and “qualified jurors under oath are presumed to follow the instructions of the trial court.” Allen v. State, 277 Ga. 502, 504 (3) (c) (591 SE2d 784) (2004). Accordingly, Davis has not shown that trial counsel was ineffective in failing to object to the prosecutor’s closing argument.

Decided October 29, 2014

Reconsideration denied November 20, 2014

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, for appellee.

(d) Finally, Davis contends that the cumulative effect of trial counsel’s errors prejudiced him. “[W]e evaluate only the effects of matters determined to be error, not the cumulative effect of non-errors.” Bulloch v. State, 293 Ga. 179, 183 (2) (744 SE2d 763) (2013). Here, Davis has not shown that trial counsel’s performance was deficient, much less that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.

In sum, the State did not improperly destroy evidence, the trial court did not err in instructing the jury, and trial counsel did not render ineffective assistance.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       Prior to trial, the trial court granted Davis’s motion to sever additional charges of possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)) and possession of marijuana with intent to distribute (OCGA § 16-13-30 (j) (1)). The State nolle prossed a charge of cruelty to a child (OCGA § 16-5-70).

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Even if the fetal sample had some slight evidentiary value, that is, assuming it could show the age of the fetus, such evidence would have been cumulative to the doctor’s testimony and does not rise to the level of material exculpatory evidence. See Krause v. State, 286 Ga. 745, 752 (8) (691 SE2d 211) (2010); see also Clay v. State, 290 Ga. 822, 842 (5) (C) (725 SE2d 260) (2012) (blood samples that might have shown that defendant was on drugs at time of crime were not constitutionally material).

       Since Davis reserved his right to object, he preserved this error for appeal. See Baptiste v. State, 288 Ga. 653, 658 (4) (706 SE2d 442) (2011). The law regarding the preservation of error for jury instructions in criminal cases changed with the enactment of OCGA § 17-8-58, effective July 1, 2007, which now requires a criminal defendant to inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate and precludes appellate review where there is a failure to object unless the jury charge constitutes plain error. See id. at n. 3. Davis’s trial occurred in January 2007.

       In its order denying Davis’s motion for new trial, the trial court noted that neither counsel specifically objected to the instruction on the burden of proof and the error may have been a transcription error rather than a misstatement in the charge.

       Davis also asserts that trial counsel’s testimony at the new trial hearing was not credible. However, the trial court was authorized to find credible trial counsel’s explanation that the decision was tactical. See Kilpatrick v. State, 252 Ga. App. 900, 903 (1) (557 SE2d 460) (2001).

       Effective January 1, 2013, the Rape Shield Statute is codified at OCGA § 24-4-412.


author: Branch, Judge.

text:
    A14A1236.
    EFFINGHAM COUNTY v. ROACH.
    (764 SE2d 600)
   Branch, Judge.

Effingham County appeals the denial of its second motion for summary judgment in this breach of contract action brought by Benjamin R. Roach, Chapter 7 Bankruptcy Trustee for Darrell Morgan. The County applied to this Court for interlocutory appeal, and this Court granted the application, holding that because the trial court rendered a conclusive determination on an issue of sovereign immunity, the trial court’s order was directly appealable as a collateral order. For the following reasons, we affirm the denial of summary judgment.

To prevail on a motion for summary judgment,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006) (citations omitted). We therefore view the evidence in the light most favorable to Roach/Morgan.

Background

So viewed, the record shows that in early 2005, Morgan became interested in purchasing and developing a 75-acre sub-tract of an over 500-acre parcel of property in Effingham County known as Grandview (a/k/a Mill Creek). Morgan contacted the County to determine whether it would provide water and sewer utilities (“w/s”) to the property and whether it would be open to re-zoning the property for residential development. David Rutherford, the County Administrator, and Hubert Sapp, the County Board Chairman, told Morgan that the County would be providing w/s to the property, and County officials supported the re-zoning. Morgan approached the Bank of Newington to obtain financing to purchase the property, and the bank agreed to finance the purchase if Morgan could provide it with, among other things, a letter of intent from the County committing to supply w/s.

On March 1, 2005, the County Board of Commissioners provided a letter of intent regarding providing w/s to the property in which the County specified that a final water and sewer agreement would be necessary to work out details; in the letter, the County stated that “[a]t this time, it is projected that water and sewer service can be available to the site by July 2006.” Morgan then entered into a contract to purchase the property, received financing from the bank based on the letter of intent, and closed on the property on July 18, 2005. The County approved the re-zoning in October 2005. Also in October, at the County’s request, Morgan provided a copy, and later delivered the original, of a $500,000 letter of credit made in favor of the County and the Georgia Environmental Finance Authority (GEFA), the agency from which the County hoped to obtain loans to finance its projects. The County’s consulting engineer, James Vaughn, testified that it should have taken eight months or so from the time that the proj ect was bid to complete the County’s portion of the infrastructure, which consisted of a six-mile extension of County infrastructure, and that the July 2006 projection was reasonable at that time.

2005 Development Agreement

At the November 1, 2005 County Board of Commissioners meeting, the board authorized the County to enter into a w/s development agreement with Morgan. The parties thereafter executed a “Development Agreement” dated November 1,2005. The agreement required Morgan to construct the on-site w/s infrastructure and the County to construct the off-site w/s infrastructure; upon completion, Morgan was required to dedicate the on-site lines to the County. The Agreement was made “[s]ubject to the condition that funds be made available to the County by [GEFA] for the construction of the County water, reuse water and wastewater treatment system up to and including] the connection point,” and it required Morgan to provide a $2.5 million letter of credit in favor of the County and GEFA. The parties did not include a deadline for completion of the construction of the w/s services in this contract.

2006 Agreement

Six months later, on May 10, 2006, the County Board of Commissioners again met and discussed the provision of w/s to Grand-view. The board voted to revoke “any prior agreements with Grand-view” and to “approve the [w/s] agreement with Grandview.” On that same day, the County and Morgan executed the “Water, Sewer, and Re-Use Water Service Agreement” (“2006 Agreement”). Like the earlier agreement, this agreement required Morgan to construct on-site w/s infrastructure (which he would later dedicate to the County) and the County to construct off-site w/s infrastructure into which Morgan would tie the on-site lines. With regard to the County’s primary obligation, the agreement provides:

The County has constructed or will construct a water system having sufficient capacity to provide potable water to the Project, a sewage system having sufficient capacity to treat effluent from the Project, and a re-use water distribution system having sufficient capacity to deliver irrigation water to the Project, as shown on the [attached plans].

The agreement then provides that the County’s obligation is subject to GEFA providing funds, but the deadline clause for the County’s primary obligation contains two blanks:

Subject to the condition that funds be made available to the County by [GEFA] or from other sources for the construction of [w/s to Grandview], the County shall ensure the availability of [w/s to Grandview] not later than_, 2006, provided that the County shall not be liable to the Developer for consequential damages or economic losses in the event that availability of any or all of said services is delayed. If [w/s] services are not available at the connection point not later than_, the County agrees to and does hereby assign to Developer any delay damages ... due to the County from its contractors responsible for the timely construction of [w/s] up to and including the connection points.

The parties never filled in these blanks.

The contract also required Morgan to provide a $499,500 letter of credit in favor of the County to secure a. guarantee in the same amount of w/s “impact” or connection fees to be generated by the project; the contract specified that the letter of credit was required as a condition precedent to the County’s obligations under the contract. Accordingly, Morgan submitted a second $500,000 letter of credit in favor of the County and GEFA on May 16, 2006. Other provisions of the contract required Morgan to make annual payments for any shortfalls in the collection of impact fees from the future homeowners, which were designed to assist the County in recovering the cost of constructing the w/s systems for Grandview. The agreement also provided for severability in case any of its provisions should be held invalid and that its terms constituted the entire agreement between the parties. Finally, the agreement provides as follows:

The failure of either party to the Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

Delays by the County to Provide W/S

Meanwhile, and soon after the County and Morgan had executed the 2005 Development Agreement, the City of Rincon became interested in providing w/s to the Grandview property in order to obtain more w/s customers and to avoid being prevented from expanding its lines in the future by an extension of the County’s infrastructure. In January or February 2006, at the County’s request, Morgan and representatives of the OADG attended a meeting that did not include any officials from Rincon, at which the County urged the developers to have Rincon provide w/s instead of the County. At the meeting, Morgan objected to Rincon providing w/s because Rincon did not have sufficient capacity; County officials then assured Morgan that the County would provide w/s as previously promised. Thereafter, Morgan never attended a meeting with any Rincon officials. Unbeknownst to Morgan, the County thereafter continued to discuss substituting Rincon as the w/s provider, and pushed OADG to meet with Rincon officials, which OADG did repeatedly. By about February or March 2006, the Georgia Environmental Protection Division (EPD) had approved the County’s plans for many of the projects funded by the applicable GEFA loans, which was supposed to include Grandview, but no plans for the Grandview project had been submitted to the EPD for approval by the County. The County’s consulting engineer, Jim Vaughn, testified that the ongoing Rincon discussions might have been a factor in the delay. The County Administrator testified that the Grandview project had been put on hold in connection with the idea that Rincon serve the project instead of the County. And in a July 10, 2006 e-mail to the County, Vaughn stated, “We understand the Grandview project is currently on hold. We will stop work on the project until conversations with the City of Rincon have been completed by the County.” County Administrator Ed Williams responded, “Jim, Please do NOT mention holding up the Grandview project!!!”

Recordings and transcripts of County Board of Commissioners meetings throughout the spring of2007 show that the commissioners and OADG continued to discuss the possibility of Rincon providing w/s for Grandview; engineers and commissioners working with the County testified that continuing delays in designing the w/s infrastructure resulted, at least in part, from these negotiations. As of late December 2007, a status report prepared by the County Administrator and sent to the commissioners referred to Rincon negotiations as occurring “over the last three months.” Morgan testified that he was never made aware of the continuing Rincon discussions or that those discussions were delaying the w/s project. Nevertheless, Morgan states in his brief that the “hold” was lifted on June 5, 2007.

During this same time frame, Old Augusta Road, the proposed route of the w/s services from the county, was being realigned in such a way as to prevent the extension of County w/s to Grandview until completion of the road work; the road project itself was delayed for a number of reasons for a year and a half. Morgan became aware of the DOT-related delays possibly as early as 2007. Morgan was told that the County was not going forward until the DOT completed the road work.

In early 2008, due to the delay and changes in the economy, Morgan elected to have the property re-zoned for industrial use, and the County granted his re-zoning application on July 14, 2008; the re-zoning documents again stated that w/s would be provided by the County, and they noted a new, reduced level of w/s demand for the industrial property. But Morgan never provided the County with new projected capacity needs for the industrial property, which were necessary to design the infrastructure properly. Later in 2008, the County removed the Grandview w/s project from the scope of work planned for the existing GEFA funding, although the County still held two letters of credit from Morgan and never told him that his project was no longer within the scope of the GEFA funding.

During the entire time from the 2006 Agreement forward, Morgan never started work on his property. He testified that he did not want to risk starting without assurance that the County w/s was coming. Morgan began to express his frustration to County officials starting in November 2006. But in each conversation, County officials reassured him that the w/s project was coming. Morgan testified that he did not take any action because “I guess I had faith in them. They kept telling me they was going to bring water and sewer and I kept believing them to the last minute.” He also testified that the idea of suing the County was probably mentioned “sometime pretty shortly after the middle of’06 when we didn’t have anything happening.” He added:

I started thinking about what are we going to do, and decided to keep trying. I was all in, stay in. Stay in. Stay in. They kept telling me they were going to bring it, so I kept making interest payments. ... I probably was thinking about [suing in the 2006, 2007 time frame] but decided against it. It’s kind of early back then. You know. July of’06, they said it would be available but it also says it’s projected. I mean, you know, this is you in the real world, things don’t always happen when they are projected to happen. I didn’t want to bail out on them, they are telling me it’s coming. So, you know, let’s make another payment [on the purchase money loan for the property],... Never once in my recollection any time did they say they were not going to run the water and sewer line. Never when I talked to them did they tell me they wouldn’t.

Finally, he testified:

When [the bank] foreclosed on me [in November 2009] and I was out of the game[,] I felt like I was wronged. Until [the bank] foreclosed [the County was] going to bring [w/s], they kept saying they were going to bring it. And I still believe had they brought it, I could have sold it.

Bankruptcy and Litigation

Morgan filed for Chapter 11 bankruptcy in the summer of 2009, his bankruptcy was converted to Chapter 7 in February 2010, and he was eventually discharged on January 7,2011. Meanwhile, in November 2009, the bank obtained relief from the automatic stay and foreclosed on the property. Roach gave ante litem notice on September 29, 2010, and filed suit against the County and the County Board of Commissioners on December 22, 2010, setting forth claims for breach of contract, promissory estoppel, negligent and false misrepresentation, and punitive damages.

The defendants moved for summary judgment on July 16, 2012. The trial court granted the motion in part, disposing of all claims against the individually-named defendants, but denied summary judgment with respect to the breach of contract and promissory estoppel claims against the County. Roach then voluntarily dismissed without prejudice his promissory estoppel claim against the County, and the County filed a notice of appeal to this Court. We dismissed the County’s appeal for failure to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b).

After remand, the County again moved for summary judgment on the breach of contract claim, reasserting the grounds asserted in the first motion — invalidity of the contract, failure of any other documents to give rise to contractual obligations, failure to make a valid damages claim, failure to mitigate damages, and failure to provide timely ante litem notice — and also arguing that sovereign immunity barred the breach of contract claim against the County. The trial court, noting that the motion was nearly identical to the first motion, incorporated by reference the findings of fact from its first order and denied the County’s second motion for summary judgment on all grounds. This appeal ensued.

1. The County contends the trial court erred by denying its motion for summary judgment on Roach’s claim of breach of contract for several reasons. We find no error.

(a) The County first argues that the 2006 Agreement is void and unenforceable based on the County’s reading of a related decision of this Court and that the trial court erred by failing to so hold. As shown above, in a separate transaction, the County used a similarly-worded agreement, and in Effingham County Bd. of Commrs. v. Park West Effingham, 308 Ga. App. 680 (708 SE2d 619) (2011), this Court held that a provision of that agreement, which provided that the developer was required to pay impact fees prior to the issuance of a building permit, violated the terms of OCGA § 36-71-4 (d) of the Georgia Development Impact Fee Act, OCGA § 36-71-1 et seq., and was therefore void. See Park West, 308 Ga. App. at 684.

Regardless whether the “impact fee” clause of the 2006 Agreement violates a statute or public policy, the remainder of the agreement is enforceable if the void provision is severable. See Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901, 904 (4) (476 SE2d 622) (1996). “A contract may be either entire or severable. In an entire contract, the whole contract stands or falls together. In a severable contract, the failure of a distinct part does not void the remainder.” OCGA § 13-1-8 (a). “The character of the contract in such case is determined by the intention of the parties.” OCGA § 13-1-8 (b). Where a contract specifically provides for severability, the language is “a clear and enforceable expression of the intent of the parties to render the contract severable.” Circle Appliance Leasing v. Appliance Warehouse, 206 Ga. App. 405, 406 (1) (425 SE2d 339) (1992) (citation omitted). See siso Bulloch South, Inc. v. Gosai, 250 Ga. App. 170, 175 (1) (b) (550 SE2d 750) (2001) (“The parties’ intent maybe expressed directly, through a severability clause.”) (punctuation and footnote omitted).

Here, the 2006 Agreement specifically provides that invalid or unenforceable parts of the agreement are severable:

In the event that any part or subpart of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, the parties agree that the remaining provisions shall be deemed to be in full force and effect.

The same agreement contains several promises by each party other than the promise to pay impact fees. For example, the County agreed to construct the w/s systems and to ensure the availability of potable water, reuse water and wastewater services to Grandview; Morgan promised to construct the on-site improvements in compliance with all County design and construction requirements and to dedicate those improvements to the County. It follows that these other obligations, including the County’s obligation to provide w/s to Grand-view, are severable.

In sum, the trial court did not err by concluding that the County’s obligation to provide w/s under the 2006 Agreement is not affected by this Court’s decision in Park West.

(b) The County next contends that Roach’s claim of breach of contract is barred by sovereign immunity. The County argues that although its sovereign immunity is waived for contract actions, Roach failed to identify any valid written contract upon which to base a breach of contract claim and that, therefore, Roach’s claim against the County does not arise in contract. See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (c) (state constitution waives sovereign immunity in “any action ex contractu for the breach of any written contract”); Bd. of Regents v. Ruff 315 Ga. App. 452, 455 (2) (726 SE2d 451) (2012) (no waiver of sovereign immunity where plaintiff failed to prove a written contract with board of regents). But our holding in Division 1 (a) defeats the County’s argument. Because the County does not challenge the enforceability of the 2006 Agreement on any other grounds and because the 2006 Agreement is not void based on the Park West argument, Roach has a claim based on that agreement. Accordingly, the County’s assertion of sovereign immunity is without merit.

(c) The County also moved for summary judgment on the ground that Roach cannot establish damages, an essential element of a breach of contract claim. See generally Budget Rent-a-Car of Atlanta v. Webb, 220 Ga. App. 278, 279 (1) (469 SE2d 712) (1996) (elements of breach of contract are “the breach and the resultant damages to the party who has the right to complain about the contract being broken”) (citation and punctuation omitted). Roach seeks damages for the claim of breach of contract. Breach of contract damages include all damages “as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2. The County’s only argument on appeal regarding damages, however, is that the 2006Agreement specifically precluded any claim for consequential damages or economic losses arising from delayed performance.

The clause of the agreement that addresses damages resulting from delays has two parts. It first precludes any damages resulting from delay caused by a force majeure, which is not an issue here. The clause also precludes any liability on the County for “consequential damages or economic losses” caused by delay:

In no event shall the County be held liable to the Developer for consequential damages or economic losses arising from delayed performance; provided, however, that in the event the County fails to timely perform its obligations under this Agreement after written notice of default from the Developer, then Developer shall be entitled to complete the County’s construction obligations hereunder, and, if Developer undertakes to and does complete all or a portion of the County’s construction obligations hereunder, . . . [Developer shall] be entitled to a credit for the cost of such completion against the water, sewer, and re-use impact and capacity fees otherwise payable under this Agreement.

It is undisputed that Morgan never gave notice of default to the County as required under this second clause and never attempted to complete the County’s obligations to provide off-site w/s services.

In Georgia, “termination or no-damage clauses will not be applied to delays or their causes not contemplated by the parties.” Dept. of Transp. v. Arapaho Constr., 257 Ga. 269, 270 (357 SE2d 593) (1987) (citations omitted). Furthermore, “such provisions .. . must be clear and unambiguous, [and] specific in what they purport to cover.” Id. (citations and punctuation omitted). Here, Roach has presented evidence suggesting that the delay in providing w/s to Grandview was caused, at least in part, by the County’s protracted discussions with the City of Rincon about which governmental entity was going to provide w/s to Grandview, despite the fact that the County had already entered into an agreement to provide those services, and that Morgan was not aware of this continuing discussion. The no-damages-for-delay clause does not specify this type of delay. As the trial court held, therefore, there is an issue of fact for the jury as to whether the parties contemplated such a delay and, therefore, an issue about the enforceability of the clause precluding recovery of consequential damages or economic losses.

The County argued below that Roach cannot establish any damages other than consequential damages or economic losses arising from delayed performance. On appeal, however, the County makes no argument regarding any other type of damages. Although Roach has not specified the precise damages he seeks, we note that diminution in value of the property has long been considered “an element in determining the proper measure of damages to real property.” Royal Capital Dev. v. Maryland Cas. Co., 291 Ga. 262, 264-265 (1) (728 SE2d 234) (2012). And we agree with the trial court that, at a minimum, there is an issue of fact in this case as to damages for diminution in value.

In sum, the County has not shown that the trial court erred by refusing to grant summary judgment based on the argument that the terms of the parties’ agreement precluded a claim for damages resulting from delay or that Roach can show no other damages.

(d) Fourth, the County contends Roach’s claims are time barred because Roach failed to give timely ante litem notice as required by statute. OCGA § 36-11-1 provides that “[ajll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred.” The County argues that Roach’s claim accrued at the end of 2006 in accordance with the 2006 Agreement which provided that “the County shall ensure the availability of [w/s to Grandview] not later than_, 2006,” and, therefore, Roach’s ante litem notice on September 29, 2010, was untimely. Roach argues that Morgan only became aware that he might have a claim against the County when the property was foreclosed upon in November 2009, that the County committed a separate breach in March 2009 when it removed Grandview from the “Phase II” projects list, and that the County’s efforts to conceal “holds” on the project tolled any ante litem requirements.

In general, a claim for breach of contract accrues at the time of the breach, not at the time that damages are discovered. Gamble v. Lovett School, 180 Ga. App. 708, 710 (350 SE2d 311) (1986); R. L. Sanders Roofing Co. v. Miller, 153 Ga. App. 225, 226 (1) (264 SE2d 731) (1980).

[T]he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result. Actual damage is not essential, but the right of action has its inception upon the breach of duty.

Gamble, 180 Ga. App. at 710 (citation and punctuation omitted). Thus, the date when Morgan subjectively became aware that he might have a claim, as the trial court appears to have held, is not controlling. Rather, the issue turns on when, under Roach’s version of the facts, the County breached the 2006 Agreement to provide w/s to Grandview.

The 2006 Agreement provided that “the County shall ensure the availability of [w/s to Grandview] not later than_, 2006.” It also provides:

If [w/s] services are not available at the connection point not later than_, the County agrees to and does hereby assign to Developer any delay damages... due to the County from its contractors responsible for the timely construction of [w/s] up to and including the connection points.

The blanks in the contract require this Court to construe the contract and, if necessary, consider parol evidence to determine the parties’ intent:

When a written contract or agreement appears to be incomplete, or its terms inconsistent with one another, it is the duty of the trial court to construe that contract or agreement, OCGA § 13-2-1, applying the rules of construction set forth in OCGA § 13-2-2. Where the writing is incomplete on its face, parol evidence is admissible to assist in determining the parties’ intent.

Pounds v. Hosp. Auth. of Gwinnett County, 191 Ga. App. 689, 693 (2) (382 SE2d 602) (1989) (citations omitted). One applicable rule of construction is that when parties fail to specify a time for completion, the law implies a reasonable time based on all the facts and circumstances of the case. Mansell 400 Associates v. Entex Information Svcs., 239 Ga. App. 477, 480 (4) (519 SE2d 46) (1999); Smith v. Cowart, 75 Ga. App. 268, 272-273 (1) (a) (43 SE2d 196) (1947). What constitutes a reasonable time is, in general, a question of fact for the jury. IH Riverdale v. McChesney Capital Partners, 280 Ga. App. 9, 14 (1) (c) (633 SE2d 382) (2006); Crooks v. Chapman Co., 124 Ga. App. 718, 719 (2) (185 SE2d 787) (1971).

When construing the blank in the due date appearing just prior to “2006,” we find no basis for concluding, as urged by the County, that the parties’ failure to write in a month and day means, as a matter of law, that the due date was December 31, 2006. For one thing, the second blank also is not filled in. Furthermore, the facts show that as of March 1, 2005, as evidenced by the letter of intent, the parties believed that a July 2006 completion date — a span of one year and four months — was reasonable but that the parties were required to enter into a contract first. Yet 14 months passed before the May 2006 Agreement was signed, which may have delayed the overall time frame of the project. At a minimum, there is an issue of fact as to whether this delay affected the July 2006 projected completion date. For the above reasons, we conclude that the parties did not select a specific date of completion and, instead, intended a reasonable time for completion of the w/s project, and what the parties considered a reasonable time is a question for the jury.

We also conclude that the jury must decide whether Morgan reasonably acquiesced to additional delays to the project precipitated by outside forces. For example, there is evidence that some delay resulted from the DOT’s prohibition of work on the w/s line while the DOT realigned the road where the w/s infrastructure was to be laid. Thus, there is an issue of fact as to when the parties reasonably expected the County would complete installation of the w/s to Grand-view given the DOT-caused delays.

Morgan also argues that the commencement of the period for ante litem notice was tolled by the County’s fraud. In order to toll a period of limitations, Morgan would have to present evidence that the County fraudulently concealed that Morgan had a breach of contract action such that the fraud debarred or deterred Morgan from knowing that he had that cause of action. The record shows that the project was delayed in 2006 and 2007, in part by the discussion with Rincon about that city providing the w/s service to Grandview, and that the County failed to inform Morgan that Rincon discussions were causing a delay. This issue is so intermingled with the other delay issues that it is not ripe for summary adjudication.

Given all the facts and circumstances, we conclude there is an issue of fact in the present case as to when the parties expected the project to be complete. It follows that there is an issue of fact regarding when, if ever, the County breached its agreement to provide w/s to Grandview. Accordingly, there is an issue of fact as to when the plaintiff’s claim of breach of contract accrued and therefore whether Roach timely filed ante litem notice as required by OCGA § 36-11-1. The trial court therefore did not err in concluding that Roach’s claim was not time barred as a matter of law. The issue remains for the jury to decide.

(e) Finally, the County contends that summary judgment was warranted because Morgan failed to mitigate his alleged damages. The 2006 Agreement provides that in the event of the County’s nonperformance, Morgan could provide a written notice of default and extend the w/s lines himself. And it is undisputed that he did not do so. But it is also true, as shown above, that the date of any breach of contract is a question of fact. And, by early 2008, Morgan began steps to rezone the property to industrial in an attempt to move the project forward in the face of changing economic conditions that had occurred during the almost two-year delay since the 2006 contract was signed. And the County acknowledged in the re-zoning documents that it would provide w/s to the project. Accordingly, issues of fact remain as to when Morgan’s duty to mitigate arose and whether any steps he took in that regard were reasonable. See generally Smith v. Reddick, 319 Ga. App. 269, 274 (2) (735 SE2d 15) (2012) (whether party’s efforts to mitigate damages was reasonable is a question for the jury); West v. CSX Transp., 230 Ga. App. 872, 875 (3) (a) (498 SE2d 67) (1998).

2. The County also contends the trial court erred by denying the County’s motion for summary judgment on Roach’s claim for expenses of litigation under OCGA § 13-6-11. The County’s assertion of error is based entirely on the contention that Roach’s breach of contract claim fails as a matter of law, which we have decided adversely to the County. The County having made no other argument, the trial court’s decision to deny summary judgment is affirmed.

Decided October 30, 2014

Reconsideration denied November 20, 2014

Oliver Maner, Benjamin M. Perkins, for appellant.

Owen C. Murphy, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       The collateral order doctrine allows direct appeals of interlocutory rulings that deny motions to dismiss based on conclusive determinations that the State or a state officer or employee is not immune from suit based on sovereign immunity. See Bd. of Regents v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).

       The larger portion of the property was purchased hy the Old Augusta Development Group (OADG), and a third, smaller portion was purchased by Gregg Howze (Howze was a member of OADG but purchased another parcel in his individual capacity).

       The County claims the letter of credit was never delivered. Roach claims that Morgan fulfilled this requirement with the letter of credit that Morgan had already given the County in October that enabled it to obtain a GEFA loan. And at the board meeting, the County Administrator noted that “we do have a letter of credit from Mr. Morgan for $500,000.”

       Effingham County has used an almost identical contract in other transactions, one of which formed the basis of a breach of contract claim by the County against a developer who failed to pay the impact fees. Effingham County Bd. of Commrs. v. Park West Effingham, 308 Ga. App. 680 (708 SE2d 619) (2011).

       There appears to be a question of fact as to whether, at least to some degree, Morgan relied on OADG to represent him in connection with developing his portion of the greater property. For example, both portions of the property were rezoned simultaneously, someone other than Morgan submitted his requests for rezoning, and Morgan admitted that he did not attend several rezoning meetings.

       Roach later amended his complaint twice and added individual County commissioners as defendants. The Second Amended Complaint added claims for negligence and fraud, and dropped the claim of fraudulent misrepresentation. Roach subsequently voluntarily dismissed without prejudice his claims against the County for negligent misrepresentation, negligence, punitive damages, and fraud. A consent order dismissed the Board of Commissioners as a defendant.

       OCGA § 36-71-4 (d) provides in pertinent part as follows:
      A municipal or county development impact fee ordinance shall provide that development impact fees shall be collected not earlier in the development process than the issuance of a building permit[.]

       Moreover, Park West is distinguishable. In Park West, the County was attempting to enforce the very provision of the agreement that was held to be void and invalid, and Park West did not address severability, nor mention whether the agreement had a severability clause. In the case before us, Roach has sued for breach of the County’s obligation to provide w/s to Grandview and the allegedly void provision of the agreement is severable.

       In its statement of facts, the County asserts in a parenthetical that the 2006 Agreement “was nullified when Mr. Morgan drastically reduced the capacity needs for the property by rezoning it.” The County does not elaborate on this argument in its discussion nor cite any authority in support. This argument is therefore unavailing. See Kuehn v. Key, 325 Ga. App. 512, 519 (3) (754 SE2d 103) (2014).

       The first clause provides as follows:
      Neither the County nor Developer shall be liable to the other or any successor in interest for any loss, cost, or damage arising out of, or resulting from, nonperformance or delayed performance of the terms of this Agreement where such non-performance or delayed performance is the result of circumstances or occurrences beyond the reasonable control of the responsible party (each, a “force majeure”), which, as used herein, shall be deemed to include, non-performance or delayed performance resulting from acts of God, strikes, lockouts, blockades, insurrections, riots, explosions, fire, floods, or any other cause not within the reasonable control of the responsible party.

       The contract made the same point in another section where it provides that “the County shall not be liable to the Developer for consequential damages or economic losses in the event that availability of any or all of said services is delayed.”

       Consequential damages are defined as “[l]osses that do not flow directly and immediately from an injurious act but that result indirectly from the act.” Black’s Law Dictionary (9th ed. 2009).

       In Georgia,
      [fjraud sufficient to toll the statute of limitation requires: (1) actual fraud involving moral turpitude on the part of the defendant; (2) the fraud must conceal the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action; and (3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation.

        Gibson v. Thompson, 283 Ga. App. 705, 707 (642 SE2d 366) (2007) (footnote omitted). See also OCGA § 9-3-96 (“If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.”).