text:
    A17A0190.
    ATLANTIC SPECIALTY INSURANCE COMPANY v. LEWIS et al.
    (802 SE2d 844)
   BARNES, Presiding Judge.

Nancy Lewis, individually and on behalf of her minor daughter, filed a personal injury suit against the City of Cartersville, alleging that the City was liable for injuries her daughter sustained in an automobile collision and that the City had waived its sovereign immunity by operation of law and through the purchase of municipal liability insurance from Atlantic Specialty Insurance Company While the personal injury suit was pending, Lewis filed the present declaratory judgment action against the City and Atlantic, seeking a determination that the City had available $5 million in insurance coverage to cover the claims in the personal injury suit and had waived its sovereign immunity up to that amount. Atlantic filed a motion to dismiss in the declaratory judgment action, contending that Lewis lacked standing to seek declaratory relief and that the action was not ripe for judicial review because Lewis had not yet obtained a judgment against the City in the underlying personal injury suit. The trial court denied Atlantic’s motion to dismiss, and later, on cross-motions for summary judgment filed by Lewis and Atlantic, the court determined that there was $5 million in insurance coverage available to cover the claims in the underlying personal injury suit and that the City had waived its sovereign immunity up to the full policy limit. Atlantic appeals these rulings by the trial court in the declaratory judgment action.

For the reasons discussed below, we conclude that Lewis did not have standing to bring this declaratory judgment action in the absence of an unsatisfied judgment against the City in the underlying personal injury suit. Consequently, we vacate the trial court’s order on the parties’ cross-motions for summary judgment reaching the merits of the parties’ dispute over insurance coverage and sovereign immunity, reverse the trial court’s denial of Atlantic’s motion to dismiss, and remand with direction that Lewis’ declaratory judgment action be dismissed for lack of standing.

The Insurance Policy. The facts relevant to the present appeal are largely undisputed. In 2013, the City purchased an insurance policy from Atlantic that included several different types of liability coverage, including business auto coverage with a $1 million policy limit and umbrella liability coverage with a $4 million policy limit, for a total policy limit of $5 million. The coverage provided by the policy remained in effect on the date of the automobile collision out of which this litigation arose.

The business auto coverage and excess liability coverage parts of the policy both contained an endorsement entitled “Georgia Changes — Protection of Immunity” The policy endorsement stated that Atlantic had no duty to pay out any damages on behalf of the City “unless the defenses of sovereign and governmental immunity are inapplicable to [the City].” The endorsement further stated that the “policy and any coverages associated therewith [did] not constitute, nor reflect an intent by [the City], to waive or forego any defenses of sovereign and governmental immunity available to [the City]” pursuant to any statute or the common law.

The Personal Injury Suit. InMarch2014, a City police officer was driving her patrol car through an intersection when she collided with another vehicle in which Lewis’ four-year-old daughter was a passenger. Lewis’ daughter was severely injured as a result of the collision.

In August 2015, Lewis, individually and as next friend and guardian of her minor daughter, filed a personal injury suit for damages against the City in the Superior Court of Bartow County, alleging that the police officer’s negligent driving had proximately caused her daughter’s injuries and that the City was vicariously liable for the officer’s negligence. Lewis also alleged that the insurance policy purchased by the City from Atlantic covered the automobile collision and that the City had waived its sovereign immunity to the full extent of the coverage purchased.

The City answered, denying any liability for the automobile collision and asserting sovereign immunity as a defense. With respect to sovereign immunity, the City denied that its immunity had been waived to the full extent of the liability insurance it had purchased (i.e., $5 million), but admitted that it had automatically waived its immunity in a lesser amount by operation of law. The City also filed a notice of non-party fault as to the driver of the vehicle in which Lewis’ daughter had been a passenger, alleging that the driver was wholly or partially responsible for the injuries sustained by the daughter in the automobile collision.

The Declaratory Judgment Action. While the personal injury suit against the City was pending, Lewis separately filed the present declaratory judgment action against the City and Atlantic in the Superior Court of Bartow County. Lewis sought a declaration from the court that the insurance policy purchased by the City from Atlantic provided up to $5 million in coverage for the claims in the underlying personal injury suit and that the City had waived its sovereign immunity up to that amount.

Atlantic answered, denying that the City had waived its sovereign immunity up to the full policy limit of $5 million. Additionally, Atlantic asserted, among other defenses, that Lewis was not in privity of contract with Atlantic and that the doctrine of sovereign immunity limited the coverage afforded by the insurance policy Atlantic also filed a motion to dismiss the complaint, arguing that Lewis lacked standing and that her declaratory judgment suit was premature because she had not yet obtained a judgment against the City in the underlying personal injury suit. The trial court denied Atlantic’s motion to dismiss, concluding that Lewis could proceed with her claim for declaratory relief while the personal injury suit was pending.

The declaratory judgment action proceeded forward, and Lewis and Atlantic filed cross-motions for summary judgment concerning the maximum amount of insurance coverage available to the City in the personal injury suit based on the language of the insurance policy and Georgia’s relevant sovereign immunity statutes, OCGA §§ 33-24-51 and 36-92-2. Atlantic argued that the maximum coverage available under the policy was $500,000 based on the interplay between the language of the policy endorsement and Georgia’s sovereign immunity statutes, while Lewis argued that the full $5 million in coverage was available. The trial court agreed with Lewis and concluded that, as a matter of law, $5 million in insurance coverage was available to cover Lewis’ claims in the personal injury suit. This appeal by Atlantic followed.

1. Atlantic contends that the trial court erred in denying its motion to dismiss Lewis’ complaint in the declaratory judgment action for lack of standing. According to Atlantic, Lewis was not in privity of contract with either the City or Atlantic under the insurance policy and thus did not have standing to file an action for declaratory relief directly against Atlantic, unless and until Lewis had an unsatisfied judgment against the City in the underlying personal injury suit. We agree with Atlantic that Lewis lacked standing to seek declaratory relief.

As a general rule, a plaintiff does not having standing to bring a direct action against a defendant’s insurance company unless the plaintiff has obtained a judgment against the defendant that remains unsatisfied. See Arnold v. Walton, 205 Ga. 606, 612 (2) (54 SE2d 424) (1949); Capitol Indem. Corp. v. Fraley, 266 Ga. App. 561, 563 (1) (597 SE2d 601) (2004); Richards v. State Farm Mut. Auto. Ins. Co., 252 Ga. App. 45, 45 (555 SE2d 506) (2001); Caudill v. Strickland, 230 Ga.App. 644, 644 (1) (498 SE2d 81) (1998). The rationale for this rule is that the plaintiff is not in privity of contract with either the defendant or the defendant’s insurance company under the liability insurance policy and is not considered a third party beneficiary of the policy. See Googe v. Florida Intl. Indem. Co., 262 Ga. 546, 548 (1) (422 SE2d 552) (1992); Fraley, 266 Ga. App. at 563 (1). It is only once a judgment has been obtained against the defendant insured that the plaintiff “is no longer a stranger to the insurance policy but instead ‘stands in the shoes’ of the insured” and can sue the defendant’s insurer directly when the judgment is unsatisfied. McCoy v. Ga. Dept. of Admin. Svcs., 326 Ga. App. 853, 858 (c) (755 SE2d 362) (2014).

There are a limited number of exceptions to the general rule that a plaintiff must have an unsatisfied judgment against the defendant before filing suit against the defendant’s insurance company A plaintiff may bring a direct action against a defendant’s insurer if the legislature has specifically authorized a direct action against the insurer or a provision of the insurance policy at issue authorizes direct action. See Arnold, 205 Ga. at 612 (2); Richards, 252 Ga. App. at 45; Caudill, 230 Ga. App. at 644 (1). Additionally, where liability insurance is mandated by the legislature, a plaintiff may bring an action directly against the defendant’s insurance company for equitable reformation of the insurance policy or for declaratory relief. Richards, 252 Ga. App. at 46. See Googe, 262 Ga. at 548-549 (1).

Lewis, however, does not have an unsatisfied judgment against the City; the underlying personal injury suit she commenced against the City remains pending. Nor has Lewis pointed to any statutes or provisions of the insurance policy that would authorize a direct action against Atlantic. Furthermore, this is not a case where liability insurance was legislatively mandated; rather, municipalities have discretion whether to obtain liability insurance to cover automobile collisions involving government vehicles. See OCGA § 33-24-51 (a) (“A municipal corporation ... is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation . . . .”) (emphasis supplied).

Accordingly, Lewis has failed to demonstrate that she had standing to pursue a direct action against Atlantic for declaratory relief without having first obtained an unsatisfied judgment against the City in the underlying personal injury suit. See, e.g., Googe, 262 Ga. at 550 (1) (personal injury plaintiff did not have standing to seek equitable reformation against city’s insurer where the municipal liability insurance policy obtained by the city “was voluntarily acquired[,] . . . not legislatively mandated”); Richards, 252 Ga. App. at 46-47 (personal injury plaintiff did not have standing to bring direct action against insurer for bad faith refusal to settle, where injured party had not obtained a judgment against the insured). If we were to conclude otherwise and permit a plaintiff like Lewis to pursue an action for declaratory relief against the defendant’s insurer while the underlying personal injury suit against the defendant remained pending,

there is no reason why every tort claimant would not, upon filing a personal injury action, concomitantly file a declaratory judgment action to determine the maximum amount of coverage to which he would be entitled in the event that liability was subsequently established. We cannot create the right to such premature litigation.

Batteast v. Argonaut Ins. Co., 454 NE2d 706, 708 (Ill. App. Ct. 1983).

(a) In concluding that Lewis had standing to bring the present declaratory judgment action, the trial court distinguished our prior precedent on the basis that those cases involved plaintiffs filing direct actions for damages against a defendant’s insurer rather than direct actions for declaratory relief. But, in addition to cases involving direct actions for damages, we have applied the same rule of standing in cases where the plaintiff in the underlying tort suit was joined as a party in a separate declaratory judgment action brought by the defendant’s insurance company to determine coverage issues. In that context, we held that the plaintiff did not have standing to assert counterclaims or defenses related to the insurance policy against the defendant’s insurer in the declaratory judgment action, given that the plaintiff did not have an unsatisfied judgment against the defendant in the underlying tort. See Fraley, 266 Ga. App. at 563 (1) (plaintiff lacked standing to raise defenses of waiver and estoppel in declaratory judgment action brought by defendant’s insurer); Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 337-339 (6) (291 SE2d 410) (1982) (plaintiff lacked standing to assert counterclaims in declaratory judgment action brought by defendant’s insurer). Again, our rationale was that the plaintiff was not in privity of contract with the defendant’s insurer and thus had no rights under the insurance policy that would support bringing any counterclaims or defenses against the insurer. See id. We discern no reason for creating a different rule of standing merely because, as in the present case, the plaintiff in the underlying tort action initiates the declaratory judgment action rather than asserts a counterclaim or defense in such an action.

Furthermore, separate and apart from our cases that address standing in the context of insurance coverage, Lewis has failed to demonstrate that she had standing to seek declaratory relief against Atlantic under our case law pertaining more generally to declaratory judgment actions. “To establish a legal interest sufficient to maintain standing under the Declaratory Judgment Act, [OCGA § 9-4-1 etseq.,] a party must show that his rights are in direct issue or jeopardy. The party must show that the facts are complete and that the interest is not merely academic, hypothetical, or colorable, but actual.” (Citation omitted.) Board of Natural Resources v. Monroe County, 252 Ga. App. 555, 557 (1) (556 SE2d 834) (2001). See Bailey v. City of Atlanta, 296 Ga. App. 679, 682 (1) (675 SE2d 564) (2009).

Lewis has not obtained a judgment against the City with respect to her claims relating to the automobile collision, and thus any rights she may have under the insurance policy are contingent upon a future event that may or may not happen, namely, her success in the personal injury suit against the City. It is well established that a plaintiff lacks standing to seek declaratory relief when he or she has only a “generalized economic interest that is contingent upon future events” because “[s]uch interests are not legally protectible interests.” Bd. of Natural Resources, 252 Ga. App. at 559 (1). That is the situation here, where Lewis’ personal injury suit against the City remains pending, and thus Lewis is not entitled to pursue a declaratory judgment action against Atlantic at this time. See id.

(b) Relying upon Smith v. State Farm Mut. Auto. Ins. Co., 122 Ga. App. 430, 432 (1) (177 SE2d 195) (1970), the trial court also concluded that Lewis could seek declaratory relief from Atlantic because “declaratory judgment actions are an appropriate avenue for the resolution of coverage disputes even prior to a judgment being rendered in an underlying lawsuit.” However, Smith, unlike the present case, involved a defendant’s insurance company seeking declaratory relief to determine whether coverage applied, after the defendant demanded that his insurer defend him in a pending tort suit. See id. at 431.

Smith is consistent with well established case law that the insurer and insured have standing to file a declaratory judgment action to determine questions of coverage, when a controversy has arisen between them over the policy’s application in a tort action pending against the insured. See Atlantic Wood Indus. v. Argonaut Ins. Co., 258 Ga. 800, 801 (375 SE2d 221) (1989); Atlantic Wood Indus. v. Argonaut Ins. Co., 190 Ga. App. 814, 814 (380 SE2d 504) (1989); Currington v. Federated Mut. Ins. Co., 145 Ga.App. 350, 350-351 (243 SE2d713) (1978); Hardeman v. Southern Home Ins. Co., 111 Ga.App. 638, 641 (3) (142 SE2d 452) (1965). The insurer and insured clearly have a contractual interest at stake in a dispute over the terms and coverage of the insurance policy, and such disputes routinely arise before judgment has been entered in the underlying tort action because of the insurer’s common contractual duty to defend the insured. See id. The situation of an injured third party like Lewis, who is not in privity of contract or a third party beneficiary of the insurance policy and has no rights or duties under the policy, is simply not analogous to that of the insurer or insured, and we decline to extendeases like Smith to the situation here. See Fraley, 266 Ga.App. at 563 (1) (plaintiff lacked standing to assert defenses even though defendant’s insurer had standing to bring declaratory judgment action); Hart, 162 Ga.App. at 337-339 (6) (plaintiff lacked standing to assert counterclaims even though defendant’s insurer had standing to bring declaratory judgment action). See also Farmers Ins. Exchange, 862 P2d at 948-949 (II) (declining to extend cases holding that insurer and insured had standing to bring declaratory judgment action to case where tort plaintiff sought declaratory relief).

(c) In arguing for affirmance of the trial court, Lewis relies upon Saint Paul Fire & Marine Ins. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459) (1960). In Johnson, our Supreme Court held that when an insurer files a declaratory judgment action against the defendant insured to address a coverage dispute related to a pending tort suit, the insurer may join the tort plaintiff as a proper party to the declaratory judgment action to avoid multiple litigation over coverage with inconsistent results. Id. at 439. However, the question whether a party is a necessary or proper party to an existing action is a separate question from whether the party has standing to bring his or her own action, and we have previously rejected the argument that the analysis of a tort plaintiff’s standing should be altered or affected merely because the plaintiff was a proper party in a declaratory judgment action brought by the defendant’s insurer. See Fraley, 266 Ga. App. at 563 (1); Hart, 162 Ga. App. at 337-339 (6). As another court succinctly explained:

[Sjtanding focuses on the party seeking relief and not on the issues the party wishes to have adjudicated, and it is the person wishing to invoke a court’s jurisdiction who must have standing. Thus, the fact that an insurer may join an injured third party in an existing coverage dispute concerning a policy that the insurer issued does not imply that an injured third party may initiate a coverage dispute concerning a policy to which she is a stranger.

(Citations and punctuation omitted.) Brooksby, 286 P3d at 185 (V). See Cross, 347 FSupp. at 343-344 (holding that while a personal injury plaintiff is a proper party to declaratory judgment action brought by the defendant’s insurer, the plaintiff lacks standing to bring his own declaratory judgment action). Lewis’ reliance on Johnson therefore is misplaced.

(d) Lastly, Lewis contends that declaratory relief is particularly appropriate in this case because she is acting on behalf of her minor daughter. But the fact that a child is involved in the litigation does not permit this Court to disregard basic standing requirements. And although judicial approval ultimately may have to be obtained if a settlement is reached in the underlying personal injury suit because a child is involved, see OCGA § 29-3-3 (c), (e), any discussion of the role of a court in approving such a settlement is speculative at this point and contingent on the happening of an uncertain future event. See Bankers Life & Cas. Co. v. Cravey, 90 Ga. App. 113, 119-120 (82 SE2d 150) (1954) (declaratory relief cannot be predicated “on the happening of hypothetical future events”) (citation and punctuation omitted). Consequently, the fact that Lewis is acting on behalf of her minor daughter does not alter our conclusion that Lewis lacks standing to seek declaratory relief from Atlantic while the personal injury suit remains pending.

Decided June 20, 2017

Lewis Brisbois Bisgaard & Smith, Seth M. Friedman, for appellant.

Finch McCranie, Richard W. Hendrix, for appellees.

For these combined reasons, we conclude that Lewis did not have standing to bring a declaratory judgment action against Atlantic and that her complaint was subject to dismissal on that basis. The trial court therefore erred in denying Atlantic’s motion to dismiss in the declaratory judgment action.

2. In light of our decision in Division 1, we need not address Atlantic’s other legal arguments or remaining enumeration of error.

Judgment reversed in part and vacated in part, and case remanded with direction.

McMillian and Mercier, JJ., concur.

       The trial court granted a certificate of immediate review of its order denying Atlantic’s motion to dismiss. Atlantic filed an application for interlocutory appeal, which this Court denied. The denial of a motion to dismiss is an interlocutory order, see Pace Constr. Corp. v. Northpark Assoc., 215 Ga. App. 438, 439 (450 SE2d 828) (1994), and where the order “being appealed was interlocutory in nature, the denial of an application for discretionary appeal does not operate as res judicata.” (Citation and punctuation omitted.) Davis v. Foreman, 311 Ga.App. 775, 778 (2) (717 SE2d 295) (2011). Thus, the denial of Atlantic’s application for interlocutory appeal does not affect the outcome of the present appeal.

       OCGA § 36-92-2 provides for the waiver of sovereign immunity of a local government entity for a loss arising out of a claim for the negligent use of certain government motor vehicles. OCGA § 36-92-2 (a) (3) provides for an automatic $500,000 waiver of immunity for “bodily injury or death of any one person in any one occurrence” regardless of whether the local government entity purchases any insurance . However, OCGA § 36-92-2 (d) (3) provides that the amount of the waiver “shall be increased to the extent that . . . [t] he local government entity purchases commercial liability insurance in an amount in excess of the waiver amount set forth in this Code section.” See also OCGA § 33-24-51 (b) (noting that when a local government entity purchases insurance “in an amount greater than the amount of immunity waived as in Code Section 36-92-2, its governmental immunity shall be waived to the extent of the amount of insurance so purchased,” and “[n]either the municipal corporation... nor the insuring company shall plead governmental immunity as a defense; and the municipal corporation ... or the insuring company may make only those defenses which could be made if the insured were a private person”).

       Several other jurisdictions have held that a plaintiff has no right to a declaratory judgment against a defendant’s insurer before obtaining judgment against the defendant. See, e.g., Cross v. Occidental Fire & Cas. Co., 347 FSupp. 342, 344 (W.D. Okla. 1972); Knox v. Western World Ins. Co., 893 S2d 321, 323-325 (III) (Ala. 2004); Fanners Ins. Exchange v. Dist. Court for the Fourth Judicial Circuit, 862 P2d 944, 947-949 (Colo. 1993); Brooksby v. Geico Gen. Ins. Co., 286 P3d 182, 184-185 (V) (Idaho 2012); Batteast, 454 NE2d at 708; Knittle v. Progressive Cas. Ins. Co., 908 P2d 724, 725-726 (Nev. 1996); Knight v. Miller, 195 P3d 372, 374-376 (Okla. 2008); Hale v. Fireman’s Fund Ins. Co., 302 P2d 1010, 1012-1016 (Or. 1956); Mendez v. Elites, 849 A2d 329, 333, n. 2 (R.I. 2004); Boyle v. Nat. Union Fire Ins. Co., 866 P2d 595, 597-598 (Utah Ct.App. 1993). But see Community Action of Greater Indianapolis v. Indiana Farmers Mut. Ins. Co., 708 NE2d 882, 885-886 (Ind. Ct. App. 1999) (discussing jurisdictions holding that plaintiff has standing to seek declaratory relief against the defendant’s insurer even in the absence of obtaining a judgment against the defendant).

       Lewis also relies on Hicks v. Walker County School Dist., 172 Ga.App. 428 (323 SE2d 231) (1984), where the plaintiffs brought a declaratory judgment action against the defendant’s insurer. Notably, however, the parties in Hicks agreed to continue the underlying personal injury suit while the plaintiff filed a declaratory judgment action against the defendant and its insurer to determine the extent of insurance coverage, id. at 428, and we did not address the issue of standing and instead only discussed the merits of the parties’ dispute. Id. at 428-430. Similarly, in Hartford Cas. Ins. Co. v. Smith, 268 Ga. App. 224 (603 SE2d 298) (2004), the plaintiffs and the defendant’s insurer both filed declaratory judgment actions during the pendency of the underlying tort action, but we noted that the insurer had abandoned on appeal any argument that the plaintiffs’ declaratory judgment action was improper. Id. at 224, n. 1. “Issues merely lurking in the record, neither brought to the court’s attention nor expressly ruled upon, have not been decided so as to constitute precedent.” Eady v. Capitol Indem. Corp., 232 Ga. App. 711, 713 (502 SE2d 514) (1998).


source: Caselaw Access Project

author: McFADDEN, Presiding Judge.

license: Public Domain

text:
    A17A0225.
    KAYE v. THE STATE.
    (801 SE2d 922)
   McFADDEN, Presiding Judge.

James Kaye was tried before a jury and convicted of multiple offenses arising out of a home invasion robbery Kaye appeals, challenging the denial of a motion to suppress the statement he gave to police and the effectiveness of his trial counsel. However, the denial of the motion to suppress was not erroneous, and trial counsel’s performance was not both deficient and prejudicial. Accordingly, we affirm.

1. Facts and procedural posture.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Hoglen v. State, 336 Ga. App. 471 (784 SE2d 832) (2016) (citation and punctuation omitted).

So viewed, the evidence shows that Kaye helped James Marino and Rueben Allen plan the home invasion robbery of a family whom Kaye had known for many years. Kaye told Marino and Allen that the family kept large amounts of money and jewelry in safes in their house, described the locations of the safes to them, drove with Marino and Allen to show them where the house was located, discussed carrying out the robbery when the house was occupied since none of them knew the combinations to the safes, described a family vehicle and the work schedules of the husband and wife, and said that he could obtain a can of pepper spray for them to use during the robbery Several days later, Marino and Allen bought a pellet gun and pepper spray and then went to the house to carry out the robbery. They attacked the husband when he came outside the house, went inside and forced the wife to open a safe, grabbed two minor children who were in the house, put the gun to the head of one of the children, and fled from the house with money taken from the safe.

Police investigators subsequently identified Kaye, Marino, and Allen as suspects. During the investigation, Kaye gave a videotaped statement to police in which he admitted, among other things, that he had told Marino and Allen about the safes in the house and had driven them to see the house prior to the robbery Kaye, Marino, and Allen were jointly indicted for multiple counts of armed robbery, aggravated assault, battery, and false imprisonment. Marino pled guilty to various counts and testified at Kaye’s jury trial, which had been severed from Allen’s trial. The jury returned guilty verdicts on all charges, the trial court entered judgments of conviction and imposed sentences, and the court denied Kaye’s motion for new trial. This appeal followed.

2. Denial of motion to suppress videotaped statement.

Kaye contends that the trial court erred in denying his motion to suppress his videotaped statement to a police detective because the statement was induced by a hope of benefit when the detective indicated that he would help Kaye out and let the district attorney know of Kaye’s cooperation, stating “as much cooperation as you give will be reflected down there.” We find no reversible error.

As an initial matter, we acknowledge that Kaye is correct in noting that the trial court, in announcing its ruling, incorrectly distinguished between an incriminating statement and a confession by finding that Kaye’s statement constituted “an admission and not a confession.” But that distinction is immaterial because “[i]t has long been the law in this [s]tate that the rule as to the admissibility of an incriminatory statement is the same as that applied to a confession. [Cits.]” Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d 863) (2008). So, that mistake does not amount to reversible error; the trial court went on to also deny the motion to suppress based on a correct finding that the detective’s comments did not constitute a hope of benefit that would render Kaye’s statement involuntary.

Under former OCGA § 24-3-50, in effect at the time of Kaye’s trial, incriminating statements are only admissible if “made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury”

Thus, to overcome suppression, the [s]tate must show that (1) the suspect was not presented with the slightest hope of benefit, and (2) even if a hope of benefit was presented to the criminal defendant by the [s]tate, the suspect’s incriminating statements were not actually induced by this hope of benefit, such that his or her confession was rendered involuntary as a matter of law.

State v. Munoz, 324 Ga. App. 386, 390 (749 SE2d 48) (2013) (citations and punctuation omitted; emphasis in original).

In this case, Kaye was not under arrest at the time he gave the taped interview. He had contacted a police officer he knew in order to provide information about the robbery, the officer took him to a police station to be interviewed by the lead detective on the case, and after the interview Kaye left the station. A review of the taped interview reveals that the interview lasted for approximately 24 minutes and that the complained of comments by the detective indicating that he would let the district attorney know of Kaye’s cooperation did not occur until over 16 minutes into the interview. Thus, the record plainly shows that any of Kaye’s incriminating statements that came prior to the detective’s comments were not actually induced by those comments. “[E]ven if such verbiage is considered to be improper as holding out hope of benefit, it could not relate back to influence anything said by [Kaye] prior to that time.” Burley v. State, 190 Ga. App. 75, 79 (3) (b) (378 SE2d 328) (1989) (citation and punctuation omitted). Although the motion to suppress in this case was denied on other grounds, “a trial court’s ruling on a motion to suppress will be upheld if it is right for any reason.” Fincher v. State, 276 Ga. 480, 481 (2) (578 SE2d 102) (2003) (citations and punctuation omitted). See also Gaston v. State, 257 Ga. App. 480, 483-484 (2) (571 SE2d 477) (2002) (“even if a trial judge incorrectly denies a motion to suppress on one basis, we may affirm the denial on another basis”) (citation and punctuation omitted). Because the detective’s comments could not have actually induced any of Kaye’s previously-made incriminating statements, the denial of Kaye’s motion to suppress as to those previous statements must be affirmed.

Kaye has not identified any specific incriminating statements made after the detective’s comments that should have been suppressed, and we note that at that point of the interview the detective was asking about Kaye helping to find Rueben Allen. So it appears that the detective’s comments about Kaye’s cooperation referred to such help by Kaye, not to Kaye giving any further statements to the detective. Regardless, even assuming that Kaye made incriminating statements after the detective’s comments, the comments about informing the district attorney of Kaye’s cooperation did not constitute an improper hope of benefit rendering Kaye’s subsequent statements inadmissible. “Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the hope of benefit sufficient to render a statement inadmissible under OCGA § 24-3-50.” Samuels v. State, 288 Ga. 48, 50 (2) (701 SE2d 172) (2010) (citations and punctuation omitted). Accord Arline v. State, 264 Ga. 843, 844 (2) (452 SE2d 115) (1995); Davis v. State, 245 Ga. App. 508, 509 (538 SE2d 159) (2000) (investigator does not make an improper offer of hope of benefit by telling defendant that his cooperation will be made known to the prosecution); Butler v. State, 194 Ga. App. 208 (1) (390 SE2d 278) (1990) (agreeing to tell the judge or prosecutor of the defendant’s cooperation does not constitute the hope of benefit contemplated by OCGA § 24-3-50). Accordingly, the admission of Kaye’s videotaped statement was not error.

3. Ineffective assistance of counsel.

Kaye claims that his trial counsel was ineffective in failing to challenge comments on his pre-arrest silence and in failing to request a jury instruction that the verdict should not be based on sympathy for either side. “To prevail on these claims, [Kaye] must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different.” Daniel v. State, 338 Ga. App. 389, 392 (3) (787 SE2d 281) (2016). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Cushenberry v. State, 300 Ga. 190, 197 (3) (794 SE2d 165) (2016) (citations and punctuation omitted). Kaye has failed to make the required showings of both deficient performance and prejudice.

(a) Failure to challenge comments on pre-arrest silence.

Kaye contends that his trial counsel should have sought to redact portions of his videotaped police interview during which police claimed that Kaye had not come forward to them and that counsel should have objected when the prosecutor commented during closing arguments on this police claim of Kaye not coming forward. However, at the motion for new trial hearing, counsel testified that he did not challenge these comments on the tape or during closing because the defense was that Kaye had voluntarily come forward to police as soon as he learned about the robbery and counsel “felt like ... we were going to be able to make them basically eat those words [because] he did in fact come forward.” Counsel explained that he did not seek to redact any statements from the videotaped interview because then it would not “give the full context of how [Kaye] came to them.” Counsel further testified that he believed the evidence showed very clearly that Kaye went to the police, that the jury “got the full impact” of the fact that Kaye came forward to police, and that he did not think the jury would have believed any argument that the police had to search for Kaye.

The standard regarding ineffective assistance of counsel is not errorless counsel and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance. In determining what constitutes ineffective assistance, a critical distinction is made between inadequate preparation and unwise choices of trial tactics and strategy Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight or result. We find that counsel articulated valid strategic decisions as to the foregoing grounds, and that strategy did not amount to ineffective assistance.

Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998) (citations and punctuation omitted). See also Hines v. State, 277 Ga. App. 404, 408 (2) (626 SE2d 601) (2006) (“[i]mproper reference to a defendant’s silence does not automatically require reversal or mandate a finding of ineffective assistance of counsel”).

Decided June 20, 2017

Kish & Lietz, Paul S. Kish, for appellant.

We note that Kaye also cites the lack of an objection when the prosecutor asked him, on cross-examination, about his purported failure to come forward. However, at the motion for new trial hearing, Kaye did not ask trial counsel to explain why he did not so object. “In the absence of testimony to the contrary, counsel’s actions are presumed strategic.” Patel v. State, 279 Ga. 750, 754 (c) (620 SE2d 343) (2005) (citation and punctuation omitted). Because Kaye failed to elicit any such testimony to the contrary, trial counsel’s decision to forego an objection “is presumed strategic and will not support a claim of ineffective assistance.” Traylor v. State, 332 Ga.App. 441, 448 (3) (b) (773 SE2d 403) (2015). See also Hafeez v. State, 339 Ga. App. 467, 472 (4) (c) (793 SE2d 632) (2016).

(b) Failure to request jury charge on sympathy.

Kaye contends that counsel was ineffective in failing to request the pattern jury instruction on sympathy. That pattern charge states:

Your verdict should be a true verdict based upon your opinion of the evidence according to the laws given you in this charge. You are not to show favor or sympathy to one party or the other. It is your duty to consider the facts objectively without favor, affection, or sympathy to either party.

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.70.11. “The decision over whether to give [this] cautionary charge to the jurors, informing them that they should not be influenced by sympathy or prejudice in reaching a verdict, is a matter generally addressed to the sound discretion of the trial judge.” Fincher v. State, 289 Ga. App. 64, 68 (3) (656 SE2d 216) (2007) (citations and punctuation omitted).

Here, even assuming trial counsel performed deficiently by not requesting such a charge, “we find no [showing of] prejudice in light of the strength of the evidence of appellant’s guilt [, including the accomplice’s testimony and Kaye’s own incriminating statements,] and of the trial court’s charge to the jury that it was to base its verdict on the evidence and the law given in the court’s charge[.]” Mosley v. State, 295 Ga. 123, 125 (2) (757 SE2d 828) (2014).

Judgment affirmed.

Branch and Bethel, JJ., concur.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Marc A. Mallon, Assistant District Attorneys, for appellee.

       Allen’s convictions after his separate jury trial were previously affirmed. See Allen v. State, 336 Ga. App. 80 (783 SE2d 680) (2016).

       Kaye’s trial commenced on November 17,2009, prior to the effective date of Georgia’s new Evidence Code. See Ga. L. 2011, pp. 99, 214, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).


text:
    A17A0280.
    CALDWELL et al. v. CHURCH.
    (802 SE2d 835)
   McFADDEN, Presiding Judge.

Under the terms of a written contract that contains a merger clause, Emil and Joanne Caldwell sold all of the assets of a business, a bar and grill, to Virginia Church. Then, on the basis of a claim that Church had breached an alleged contemporaneous oral agreement modifying that written contract, the Caldwells reentered the premises, ejected Church, changed the door locks, and resumed operating the business as their own.

Church then brought this action. She asserts claims for breach of contract and fraud against Emil Caldwell and claims for trespass, conversion, attorney fees, and punitive damages againstboth Caldwells. The Caldwells answered and counterclaimed for breach of contract. The trial court granted summary judgment to Church on her breach of contract claim; granted judgment on the pleadings to Church on her trespass, conversion, attorney fees, and punitive damages claims; dismissed the Caldwells’ counterclaim for failure to state a claim; and denied the Caldwells’ motion for a protective order as to the further deposition of Emil Caldwell. The Caldwells appeal, challenging the trial court’s rulings.

The trial court correctly found that the Caldwells’ claim of a breach of the alleged contemporaneous oral agreement was merit-less. So he properly granted summary judgment in favor of Church on her breach of contract claim. The trial court also correctly ruled that the pleadings established that Church was entitled to judgment on her trespass and conversion claims. But the trial court erred in entering judgment on the pleadings as to Church’s attorney fees and punitive damages claims because those are matters for a trier of fact to decide. The trial court correctly dismissed the counterclaim because it rested on the Caldwells’ meritless breach-of-the-alleged-oral-agreement argument and therefore failed to state a claim for which relief could be granted. Finally, the trial court properly denied the Caldwells’ motion for a protective order and allowed Church, in furtherance of her claim for punitive damages, to conduct discovery of Emil Caldwell’s net worth. Accordingly, we affirm in part and reverse in part the rulings of the trial court.

1. Summary judgment.

Summary judgment is appropriate when the moving party can “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted).

So viewed, the evidence shows that Church and Emil Caldwell entered into a written agreement for Church to purchase from Caldwell all of the assets of a business known as Sugar Daddy’s Bar and Grill in McDonough, Georgia. The contract provided for a $100,000 purchase price, set forth a payment schedule, established that the closing date was September 15, 2014, and stated that on that closing date all of the “inventory, equipment, and fixtures to be transferred will be located at [the business address] and will not be removed without the written consent of the Buyer.” The contract also included a merger clause entitled “Entire Agreement,” which provided:

This Agreement constitutes the sole and only agreement between Buyer and Seller respecting the Business or the sale and purchase of it. This Agreement correctly sets forth the obligations of Buyer and Seller to each other as of its date. Any additional agreements or representations respecting the Business or its sale to Buyer not expressly set forth in this Agreement are null and void, unless otherwise required by law.

Pursuant to the agreement, Church made payments, and Caldwell transferred the business to her on September 15, 2014. Church operated the bar and grill from that date until January 2015. During that time, she did not have a liquor license in her name but operated the business with the liquor license in Joanne Caldwell’s name.

On January 10, 2015, the Caldwells went to the bar and grill, ordered the patrons to leave, ejected Church from the premises, and changed the door locks. Thereafter, the Caldwells denied Church access to the business, prohibited her from operating the business, and began operating the business as their own. The Caldwells operated the bar and grill until May 23, 2015, when they closed the business. The Caldwells subsequently removed inventory and equipment from the business premises and placed the items in their private storage facility.

In moving for summary judgment on her breach of contract claim against Emil Caldwell, Church cited the contract clause providing that the business inventory and equipment “will not be removed without the written consent of [Church]” and pointed to specific deposition testimony of the Caldwells admitting that Emil Caldwell had violated that contract provision by removing equipment from the business premises without Church’s written consent. Because Church properly supported her motion for summary judgment with specific evidence in the record, Emil Caldwell, as the adverse party,

may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [OCGA § 9-11-56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

OCGA § 9-11-56 (e). See also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (if the party moving for summary judgment has discharged its burden, the nonmoving party cannot rest on its pleadings but rather must point to specific evidence giving rise to a triable issue).

In response, Emil Caldwell has failed to point to any evidence showing that there is a genuine issue for trial. Rather, he argues that although the written contract did not mention licenses, permits, or insurance, Church had orally agreed at the time the contract was entered into and when the business was turned over to her on September 15, 2014, to obtain a liquor license, business permits, and insurance in her name; that she failed to do so; and that a jury could therefore find that Emil Caldwell retained title to the business under that oral modification to the written contract. In support of this argument, Caldwell points to deposition testimony of his wife and Church purportedly showing the existence of such oral representations concerning a liquor license, permits, and insurance.

As an initial matter, even if we assume that there is a genuine issue of material fact as to whether the parties entered into an alleged contemporaneous oral agreement modifying the written contract as Caldwell claims, he has still pointed to no evidence that the purported oral agreement also changed the requirement that he obtain Church’s written consent to remove equipment from the business premises or that it added new provisions allowing him to evict Church and repossess the business and all of its assets upon an alleged breach of that purported oral modification.

More fundamentally, contrary to Caldwell’s argument, the alleged contemporaneous oral agreement cannot be used to change the terms of the written contract.

Where a conflict exists between oral and written representations, it has long been the law in Georgia that if the parties have reduced their agreement to writing, all oral representations made antecedent to execution of the written contract are merged into and extinguished by the contract and are not binding upon the parties. In written contracts containing a merger clause, prior or contemporaneous representations that contradict the written contract cannot be used to vary the terms of a valid written agreement purporting to contain the entire agreement of the parties, nor would the violation of any such alleged oral agreement amount to actionable fraud.

First Data POS v. Willis, 273 Ga. 792, 794-795 (2) (546 SE2d 781) (2001) (citations and punctuation omitted).

In this case, as recounted above, the written contract contains a merger clause providing that it is the sole agreement of the parties, that it correctly sets forth the parties’ obligations, and that any other agreements or representations not expressly set forth in the contract are null and void. Accordingly, Caldwell’s argument that an alleged contemporaneous oral agreement modified the terms of the written contract is without merit. Because Caldwell has failed to point to evidence giving rise to a triable issue on Church’s breach of contract claim against him, the trial court did not err in entering summary judgment on that claim.

2. Judgment on the pleadings.

The Caldwells contend that the trial court erred in entering judgment on the pleadings on Church’s claims for trespass, conversion, punitive damages, and attorney fees. We agree that the trial court erred in entering judgment as to the punitive damages and attorney fees claims. But the court properly entered judgment on the pleadings on Church’s conversion and trespass claims.

On appeal from a grant of judgment on the pleadings, we conduct a de novo review of the trial court’s order to determine whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. The grant of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. For purposes of the motion, all well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. But the trial court need not adopt a party’s legal conclusions based on these facts.

Hall v. Sencore, Inc., 302 Ga. App. 367 (691 SE2d 266) (2010) (citations and punctuation omitted).

(a) Trespass.

In order to be entitled to judgment on the pleadings on her trespass claim, Church must show that the undisputed facts as alleged in her complaint and the Caldwells’ answer entitle her to judgment as a matter of law and that there is a complete absence of any defense to the claim. Church’s complaint set forth a claim for trespass to personal property, alleging that she purchased the inventory and equipment of the business and that the Caldwells intentionally interfered with her possession of that property by changing the locks to the business and by operating the business using her property without her permission. In their answer, the Caldwells admitted that they unilaterally changed the locks and operated the business. But the Caldwells also denied that the personal property belonged to Church, alleging in their answer that they changed the locks and took over the business because Church had failed to comply with an oral agreement to get a liquor license, business license, food permit, and insurance in her name.

“The owner of personalty is entitled to its possession. Any deprivation of such possession is a tort for which an action lies.” OCGA § 51-10-1. “Interference with the mere possession of a chattel, even if the possession is without title or is wrongful, shall give a right of action to the possessor, except as against the true owner or the person wrongfully deprived of possession.” OCGA § 51-10-2. “Any unlawful abuse of or damage done to the personal property of another constitutes a trespass for which damages maybe recovered.” OCGA § 51-10-3. Where “the property alleged to have been taken was personalty, and alleged to have been taken without the owner’s consent, such action is tortious and a trespass for which damages may be recovered.” Lowery v. McTier, 99 Ga.App. 423 (1) (108 SE2d 771) (1959). “The gist of such an action of trespass [to personal property] is the injury done to the possession of the property” Duncan v. Ellis, 63 Ga. App. 687, 689 (11 SE2d 841) (1940). “The action of trespass to personalty is concurrent with the action of... conversion, although the two actions are not entirely coextensive. Trespass will doubtless lie for acts of interference with goods[.]” Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 260 (1) (356 SE2d 877) (1987) (citations and punctuation omitted).

Here, even if Church promised to obtain licenses and insurance but failed of that promise, that failure would not give the Caldwells any right to take possession of Church’s personal property Indeed, the Caldwells have pointed to no allegations in their pleadings that justified their unauthorized takeover of Church’s property.

Moreover, “[i]n considering a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings, including exhibits attached to the complaint or the answer.” Lapolla Indus. v. Hess, 325 Ga. App. 256, 258 (2) (750 SE2d 467) (2013). In this case, the written contract between Church and Emil Caldwell was attached to, and incorporated by reference into, the complaint. See OCGA § 9-11-10 (c); Shreve v. World Championship Wrestling, 216 Ga. App. 387, 388 (1) (454 SE2d 555) (1995) (document attached to pleading was part of pleading when it was incorporated by reference). That contract plainly shows that Church acquired the property in question, and it contains no provisions requiring her to obtain any licenses, permits, or insurance. As discussed above, the written contract contained a merger clause establishing that it constituted the parties’ entire agreement, and therefore its terms could not be modified by an alleged contemporaneous oral agreement. See First Data, supra. Consequently, nothing in the pleadings shows that the Caldwells were authorized to take possession of Church’s property based on an alleged failure to acquire licenses, permits, or insurance. Considering the contract incorporated into the pleadings along with the Caldwells’ admissions in their answer, the trial court did not err in entering judgment on the pleadings as to Church’s trespass to personal property claim.

(b) Conversion.

It is well established that

conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation. Thus, any distinct act of dominion and control wrongfully asserted over another’s personal property, in denial of his right or inconsistent with his right, is a conversion of such property.

Williams v. Nat. Auto Sales, 287 Ga. App. 283, 285 (1) (651 SE2d 194) (2007) (citations and punctuation omitted). In her complaint, Church alleged that the Caldwells wrongfully asserted control over her property by ejecting her from the premises, changing the locks on the business, and using her personal property, including equipment and inventory, to operate the business without her permission. In their answer, the Caldwells admitted to forcibly removing Church from the premises, changing the locks, and operating the business without Church’s permission. The Caldwells’ claim that their forcible taking of Church’s property was authorized by her failure to obtain licenses and insurance; but as discussed above, that claim is specious and provides no justification for the wrongful taking of Church’s personal property Because the pleadings show undisputed facts establishing Church’s conversion claim, the trial court correctly entered judgment on that claim.

(c) Attorney fees.

The trial court granted judgment on the pleadings on Church’s claim for bad faith attorney fees under OCGA § 13-6-11. Such a judgment was improper because an award of attorney fees under that statute is a matter for a jury or a court sitting as a trier of fact.

OCGA § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

(Emphasis supplied.) “As indicated by the plain language of the statute, the determination of whether there has been bad faith in support ofan award pursuant to OCGA § 13-6-11 is normally anissue for a jury” Metro Atlanta Task Force for the Homeless v. Ichthus Community Trust, 298 Ga. 221, 238 (5) (780 SE2d 311) (2015). Accord Rossee Oil Co. v. BellSouth Telecommunications, 212 Ga. App. 235, 236 (441 SE2d 464) (1994) (“Questions of bad faith, stubborn litigiousness, and unnecessary expense, under OCGA § 13-6-11, are generally questions for the factfinder.”) (citation and punctuation omitted). Consequently, “because both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury’s determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor.” Covington Square Assoc. v. Ingles Mkts., 287 Ga. 445, 446 (696 SE2d 649) (2010). “Although the trial court may grant attorney fees or litigation expenses under OCGA § 13-6-11 where it sits as the trier of fact, it is not a trier of fact on a motion for summary judgment.” Id. at 448 (citations and punctuation omitted).

Likewise, a trial court is not a trier of fact on a motion for judgment on the pleadings. As noted above, such a motion only requires the court to decide “whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law.” Southwest Health & Wellness v. Work, 282 Ga. App. 619, 623 (2) (639 SE2d 570) (2006) (citation and punctuation omitted). Accordingly, in this case, the trial court erred by summarily granting judgment on the pleadings on Church’s claim for attorney fees pursuant to OCGA § 13-6-11.

(d) Punitive damages.

The trial court also erroneously granted judgment on the pleadings on Church’s claim for punitive damages, another matter that must be decided by a jury or a court sitting as the trier of fact.

OCGA § 51-12-5.1 (b) provides:

Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

OCGA § 51-12-5.1 (d) further provides:

(1) An award of punitive damages must be specifically prayed for in a complaint. In any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made. This finding shall be made specially through an appropriate form of verdict, along with the other required findings. (2) If it is found that punitive damages are to be awarded, the trial shall immediately be recommenced in order to receive such evidence as is relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. It shall then be the duty of the trier of fact to set the amount to be awarded according to subsection (e), (f), or (g) of this Code section, as applicable.

(Punctuation omitted; emphasis supplied.)

By its plain language, this Code section provides that a determination of punitive damages must be made by the trier of fact, and thus “[t]he issue of punitive damages is ordinarily for the jury[.]” Morales v. Webb, 200 Ga. App. 788, 790 (409 SE2d 572) (1991); accord Associated Health Systems v. Jones, 185 Ga. App. 798, 802 (2) (366 SE2d 147) (1988); see also Beal v. Braunecker, 185 Ga. App. 429, 430 (1) (364 SE2d 308) (1987) (whether the facts of a case shall constitute aggravating circumstances supporting an award of punitive damages is a question for the jury and not the court). Because the issue of punitive damages must be decided by a jury or a court sitting as the trier of fact, the trial court in this case, which was not sitting as a trier of fact when it ruled on the motion for judgment on the pleadings, erred in summarily granting judgment on Church’s claim for punitive damages.

3. Dismissal of coun terclaim.

The Caldwells argue that the trial court erred in granting Church’s motion to dismiss their counterclaim for failure to state a claim pursuant to OCGA § 9-11-12 (b) (6). We disagree.

A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. In other words, if, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. On appeal, we review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor.

Dev. Auth. of Columbus v. Four JS Family, LLLP, 340 Ga. App. 474, 476 (1) (798 SE2d 15) (2017) (citations and punctuation omitted). “When considering a motion to dismiss for failure to state a claim, a trial court may consider exhibits attached to and incorporated into the complaint and answer.” Minnifield v. Wells Fargo Bank, N.A., 331 Ga. App. 512, 514 (2) (771 SE2d 188) (2015).

In their counterclaim, the Caldwells set forth a breach of contract claim based on their allegations that Church breached the alleged contemporaneous oral agreement requiring her to obtain licenses, permits, and insurance in her name. However, there is no state of facts which could be proved in support of this claim because, as explained above, the written contract, attached to the complaint and expressly referenced by the Caldwells in their counterclaim, contained a merger clause providing that the contract constituted the entire agreement between the parties. That contract cannot be modifiedby the purported oral agreement relied upon by the Caldwells in their counterclaim. See First Data, supra. Accordingly, the trial court properly granted the motion to dismiss the counterclaim for failing to state a claim upon which relief can be granted. See Viola E. Buford Family Ltd. Partnership v. Britt, 283 Ga. App. 676, 677 (642 SE2d 383) (2007).

Decided June 20, 2017.

Allen W. Bodiford, for appellants.

4. Protective order.

The Caldwells complain that the trial court erred in denying their motion for a protective order under OCGA § 9-11-26 (c) prohibiting any further deposition of Emil Caldwell regarding his net worth. “OCGA § 9-11-26 (c) does establish a general statutory basis for the entry of protective orders limiting or curtailing discovery under appropriate circumstances, provided such limitations do not have the effect of frustrating and preventing legitimate discovery.” Christopher v. State of Ga., 185 Ga. App. 532, 533 (364 SE2d 905) (1988) (citation and punctuation omitted). Such protective orders, which are within the discretion of the trial judge, “are intended to be protective — not prohibitive — and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the discoveror’s action, the court should not intervene to limit or prohibit the scope of pretrial discovery.” Bullard v. Ewing, 158 Ga. App. 287, 291 (279 SE2d 737) (1981) (citations, punctuation and emphasis omitted). Here, the Caldwells have not shown that bad faith or harassment motivates Church in seeking such discovery or what specific prejudice might result from the deposition. Rather, they simply conclude that the scope of discovery must be restricted to prevent an unreasonable intrusion into their privacy. However, mere “conclus[ory] statements, bereft of facts will not support the imposition of limitations on civil discovery” Christopher, supra (citation and punctuation omitted). The Caldwells have failed to show that the trial court abused its discretion in denying their motion for protective order prohibiting discovery.

Judgments affirmed in part and reversed in part.

Branch and Bethel, JJ., concur.

DeWoskin Law Firm, Daniel E. DeWoskin, Sam S. Han, for appellee.


author: DOYLE, Chief Judge.

text:
    A17A0336.
    SDS REAL PROPERTY HOLDINGS, LTD. et al. v. THE CITY OF BROOKHAVEN et al.
    (802 SE2d 100)
   DOYLE, Chief Judge.

This Court granted the application for discretionary review filed by SDS Real Property Holdings, Ltd., and JLB Realty, LLC (the “Developers”), who now appeal from a superior court order affirming the decision of the City of Brookhaven Zoning Board of Appeals (the “ZBA”), which upheld the Planning Director’s refusal to issue a land disturbance permit (“LDP”) to the Developers. The Developers argue that the superior court erred by affirming the denial of the LDP because (1) underlying residential density requirements did not apply because they conflict with the overlay district regulations; (2) residential density requirements did not apply because no livable structure was planned for the underlying residentially zoned property; (3) rezoning was unnecessary in order for issuance of an LDP, and therefore, denial of the LDP by the ZBA resulted in exhaustion of administrative remedies; and (4) the court failed to apply the de novo standard of review. For the reasons below, we reverse.

We review the construction of a zoning ordinance under a de novo standard. The scope of review of the superior court is limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence. . . . The construction of a zoning ordinance is a question of law for the courts. Zoning ordinances are to be strictly construed in favor of the property owner. [Because] statutes or ordinances which restrict an owner’s right to freely use his property for any lawful purpose are in derogation of the common law, they must be strictly construed and never extended beyond their plain and explicit terms.

Viewed in this light, the record shows that the Developers own property consisting of three parcels and approximately 4.6 acres of land within the municipal boundaries of the City of Brookhaven. Each individual parcel was originally zoned under the residential or commercial zoning ordinances. As to this underlying zoning, most of the property was zoned C-l, which allows only commercial and office uses but no residential. The rear portion of the property was zoned R-100, which allows single-family detached dwellings only. In addition to the underlying zoning, all three lots were included in the Brookhaven-Peachtree Overlay District (“Overlay District”), which runs along Peachtree Street and encompasses a number of parcels all with different, underlying zoning. The Overlay District contains its own zoning rules allowing for mixed-use, high-density development on any of the parcels contained in the district regardless of underlying zoning, and if the provisions of the Overlay District conflict with the underlying zoning, the Overlay District provisions govern.

In October 2014, the Developers submitted a request for rezoning of the entire property from C-l and R-100 to PC-2 in order to build a high-density mixed-use development. In May 2015, the Developers submitted an LDP application pursuant to the Overlay District provisions, seeking to build a multistory building, including 276 residential multifamily units, 11,300 square feet of office space, and 19,500 square feet of commercial space on the property. Instead of waiting for a decision on the pending rezoning application, the Developers withdrew it to await a decision on the LDP

The Planning Director denied the LDP, finding that the Developers needed to have the property rezoned in order to proceed. The Planning Director concluded that underlying R-100 zoning on part of the property contained a density requirement that precluded the development proposed by the Developers. The Planning Director stated that “[w]herein the . . . Overlay District is absent of density[,] the existing R-100 has a mandated density of one single-family detached dwelling permitted per parcel.” The Developers appealed to the ZBA, and the ZBA affirmed the denial of the permit after a hearing.

The Developers then filed a petition for writ of certiorari to the superior court, challenging the denial of the permit. After a hearing, the superior court found that the Developers failed to exhaust their administrative remedies by withdrawing their rezoning application. Additionally, the superior court found that the ZBA’s decision was supported by the record and was not an abuse of discretion.

1. The Developers argue that the superior court erred by affirming the denial of the LDP because the underlying R-100 zoning provisions conflict with the overlay district regulations and, therefore, do not apply. We agree.

As an initial matter, the Developers contend that the superior court applied the incorrect legal standard to their appeal. We agree that the superior court failed to apply the appropriate de novo standard of review to the interpretation of the zoning ordinances at issue, and thus, its review was flawed from the outset.

Applying that standard here, the Developers are correct that the Planning Director and ZBA incorrectly interpreted the zoning ordinances to require a rezoning in this instance.

Pursuant to City of Brookhaven Code § 27-31, “[d]ensity means the number of dwelling units per acre of land,” “dwelling, single-family, means a building designed for and containing one ... dwelling unit,” and “dwelling unit, multifamily, means one ... or more rooms with a private bath and kitchen facilities comprising an independent, self-contained residential unit in a building containing four ... or more dwelling units.”

R-100 designated lots are restricted by floor area, number of structures, and lot coverage, requiring minimum lot sizes of 15,000 square feet, minimum dwelling sizes of no less than 2,000 square feet, coverage not exceeding 35 percent, and a single dwelling plus allowable accessory buildings, such as garages or sheds.

C-1 zoned lots are intended to provide retail shopping and service areas within the city, and a list of allowable establishments are contained in the code; lot coverage is limited to 80 percent, and minimum lot area is 20,000 square feet.

As stated previously, the three lots at issue are contained in an overlay district. With regard to all overlay districts in the City of Brookhaven, the Code explains that

[o]verlay districts are supplemental to the zoning district classifications established in [a]rticle II of this chapter. All development and building permits for lots located within any overlay district shall meet all of the requirements of the base zoning district in which they are located and in addition shall meet all of the requirements of the overlay district applicable to said lot. Where there are conflicts between overlay district regulation and other regulations contained in the Code, the overlay regulation shall govern. Where the overlay district regulation is equally restrictive with other regulations in the Code, the overlay district regulation shall govern.

This conflict governance provision is reiterated in the Overlay District provisions of the City of Brookhaven Code Section, which provide that

[w] her ever the underlying zoning regulations are in conflict with the provisions of this overlay district, the regulations of this overlay district shall apply. Conflict means there are competing regulations or provisions. In the absence of a provision in the overlay district, the regulations of the underlying zoning shall apply.

This section also explains that the Overlay District is part of a Livable Centers Initiative, the “purpose [of which] was to create a community vision and action plan for the development of a more dynamic mixed-use community with the character of a multistory, urban village surrounding . . . the Peachtree Road corridor from Fulton County to Ashford-Dunwoody Road.”

Turning to the specific requirements of the Overlay District, which covers all three lots in the development, the Code sets forth various requirements for architectural design, setbacks, sidewalks, transitional buffer areas, height requirements, lot area and yard requirements, landscape zones, parking, and signage in order to control development within the corridor to fit the Livable Centers Initiative. Residential uses in this specific portion of the Overlay District are limited to multifamily dwellings, single-family attached dwellings, and live-work units. The Overlay District’s zoning ordinances do not allow for single-family detached housing as zoned in R-100 lots. Therefore, a conflict exists between the Overlay District provisions and the R-100 provisions, and in such a case, the Code requires that the provisions of the Overlay District govern.

Because of this conflict, it was erroneous for the Planning Director to then apply the R-100 restrictions for density — number of dwelling houses per lot — to the development at issue. Moreover, “[a] 11 parts of an ordinance relating to the same subject matter must be harmonized to reconcile conflicts, and any section of an ordinance must be construed in relation to the whole ordinance of which it is a part.” Thus, the application of the R-100 minimum dwelling size to the development also was erroneous because such application would never be triggered in light of the conflict between the R-100 and Overlay District zoning as previously noted. The Overlay District contains long lists of requirements for developments within the area, but no violation of the Overlay District zoning provisions was noted as a reason for denying the LDP, and it was error to deny the permit on the sole basis that it failed to comply with R-100 density requirements. Accordingly, the superior court erred by upholding the determination of the ZBA and Planning Director.

2. The Developers also contend that the superior court erred by finding that they failed to exhaust their administrative remedies by withdrawing their rezoning application. Again, we agree.

The Overlay District Code states that “[n]o [LDP] shall be issued within the Brookhaven-Peachtree Overlay District until the person applying for such [LDP] has submitted an application meeting all requirements of this division and such application has been approved as provided herein.” And there are no requirements that the parcels within the Overlay District first be rezoned if the LDP application meets the requirements contained in the Code. Accordingly, because the decision to deny the LDP based on application of underlying R-100 zoning was a misinterpretation of the ordinances as stated in Division 1, and because there was no provision in the Overlay District ordinances requiring rezoning prior to having an LDP granted, the Developers exhausted their administrative remedies by appealing the Planning Director’s LDP denial to the ZBA and to the superior court. The superior court erred by ruling otherwise.

Decided June 20, 2017

Bruce M. Edenfield; Wilson Brock & Irby, Kyler L. Wise, Stephan Rothman, for appellants.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell; Pursley Friese Torgrimson, G. Douglas Dillard, Jillian S. Arnold, Angela D. Robinson; Smith & Liss, Ray S. Smith III, for appellees.

Judgment reversed.

Miller, P. J., and Reese, J., concur.

       (Citation and punctuation omitted.) City of Dunwoody v. Discovery Practice Mgmt., 338 Ga. App. 135, 138-139 (2) (789 SE2d 386) (2016).

       Under the proposed development, the buildings, multifamily units, and parking spaces would all be located on the portion of the property with underlying zoning of C-1. No multifamily units were proposed on any land zoned to the underlying R-100 district.

       See Discovery Practice Mgmt., 338 Ga. App. at 138-139 (2), quoting Burton v. Glynn County, 297 Ga. 544, 546 (1) (776 SE2d 179) (2015) and Haralson County v. Taylor Junkyard of Bremen, 291 Ga. 321, 323-324 (2) (729 SE2d 357) (2012).

       See City of Brookhaven Code §§ 27-141 to 27-151.

       See City of Brookhaven Code §§ 27-576 to 27-586.

       See City of Brookhaven Code § 27-656.

       See City of Brookhaven Code § 27-728.15.1.

       Id.

       See City of Brookhaven Code §§ 27-728.15.4 to 27-728.15.12.

       See City of Brookhaven Code § 27-728.15.12 (a) (3) a.-c. “The minimum size of the live-work unit shall be [1,200] square feet with at least one-third of the unit designated for residential space.” See id. at (c) (1) o. There are numerous height, setback, and other requirements for other portions of the development. See City of Brookhaven Code § 27-728.15.12.

       See City of Brookhaven Code § 27-728.15.1.

       See, e.g., Discovery Practice Mgmt., 338 Ga. App. at 139 (2) (“Here, ‘the language of the ordinance is plain and unambiguous, and does not lead to contradictory, absurd, or wholly impracticable results, and it is the sole evidence of legislative intent and must be construed according to its terms.’ ”) (punctuation omitted).

        DeKalb County v. Post Apt. Homes, 234 Ga.App. 409, 412 (1) (506 SE2d 899) (1998). See also Hogan v. DeKalb County, 196 Ga.App. 728, 729 (397 SE2d 16) (1990) (“It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.”) (punctuation omitted).

       See City of Brookhaven Code § 27-728.15.4 (a).


text:
    A17A0509.
    MONTIA v. FIRST-CITIZENS BANK & TRUST COMPANY et al.
    (801 SE2d 907)
   McFADDEN, Presiding Judge.

In this quiet title action, petitioner Muriel Montia appeals from two orders: the trial court’s grant of a motion to dismiss for failure to state a claim filed by respondents Ocwen Loan Servicing, LLC (“Ocwen”), and HSBC Bank USA National Association as Trustee for Ace Securities Corp. Home Equity Loan Trust Series 2003-OP1 (“HSBC”), and the trial court’s grant of a motion for judgment on the pleadings and for summary judgment filed by respondent First-Citizens Bank & Trust Company (“First-Citizens”). In several enumerations, Montia argues that the trial court erred in granting these motions rather than submitting the case to a special master. We find, however, that the trial court was authorized to dismiss the petition for failure to state a claim and to grant judgment on the pleadings without submitting the case to a special master, so we affirm. Given this disposition, the issue of summary judgment is moot. White v. Lumpkin, 272 Ga. 398 (529 SE2d 879) (2000).

This action involves real property acquired by Montia in 2003. The property is subject to two recorded deeds to secure debt. One deed to secure debt is in favor of an entity that later assigned the deed to HSBC. HSBC used Ocwen, a loan servicing company, to try to collect that debt from Montia. The second deed to secure debt is in favor of an entity that later went into receivership; its receiver subsequently assigned the deed to Capitol City Bank & Trust, a division of and assumed name used by First-Citizens.

Montia filed a petition to quiet title against all the world under OCGA § 23-3-60 etseq. of Georgia’s Quiet Title Act. She alleged in her petition that First-Citizens, Ocwen, and HSBC had claims adverse to her interest in the property that were without legal basis and constituted clouds on her title. She also asked that the case be submitted to a special master pursuant to OCGA § 23-3-63.

Montia herself arranged for service of process upon the respondents, although generally the Quiet Title Act requires that service be made by a special master. OCGA § 23-3-65 (b); Woodruff v. Morgan County, 284 Ga. 651, 651-652 (1) (670 SE2d 415) (2008). Because “a special master was never appointed such that service could be properly completed pursuant to the Quiet Title Act[,] the [respondents] were not required to answer [Montia’s petition].” Woodruff, supra, 284 Ga. at 652 (1). Nevertheless, Ocwen, HSBC, and First-Citizens answered the petition and filed their motions. Ocwen and HSBC filed a joint motion to dismiss the petition for failure to state a claim. First-Citizens filed a motion for judgment on the pleadings, basing that request on the petition, the answer, and the documents attached to those pleadings. (In its motion, First-Citizens also sought summary judgment based on evidence outside the pleadings.) The trial court granted the motions without submitting the case to a special master.

The motion to dismiss and the motion for judgment on the pleadings presented the trial court with the same question: would Montia be entitled to relief under any state of facts that she could prove in support of her claim? Where, as here,

the party moving for judgment on the pleadings does not introduce affidavits^] depositions, or interrogatories in support of his motion, such motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The motion to dismiss should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his [or her] claim.

Cox v. Turner, 268 Ga. App. 305 (1) (601 SE2d 728) (2004) (citation and punctuation omitted). When ruling on a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the complaint and answer. See OCGA § 9-11-10 (c); Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) (764 SE2d 398) (2014); Shelnutt v. Mayor and Aldermen of the City of Savannah, 333 Ga. App. 446 (776 SE2d 650) (2015). We review the trial court’s rulings on these motions de novo. Southwest Health & Wellness, LLC v. Work, 282 Ga.App. 619, 623 (2) (639 SE2d 570) (2006).

OCGA § 23-3-62 sets forth the statutory requirements of a petition to quiet title against all the world under OCGA § 23-3-60 et seq. A petition that, on its face, appears to be in noncompliance with OCGA § 23-3-62 is subject to dismissal because, “[i]n that case, no evidence which might be introduced within the framework of the [petition] could sustain a grant of. . . relief.” GHG, Inc. v. Bryan, 275 Ga. 336 (1) (566 SE2d 662) (2002) (citation and punctuation omitted). A petition must contain, among other things, a “specification of the petitioner’s interest in the land[.]” OCGA § 23-3-62 (b). The petitioner “must assert that [s]he holds some current record title or current prescriptive title, in order to maintain h[er] suit.” Smith v. Ga. Kaolin Co., 269 Ga. 475, 477 (2) (498 SE2d 266) (1998) (citation, punctuation and emphasis omitted). The “plaintiff’s right to recovery or relief depends upon the strength of h[er] own title to the realty involved, not the weakness of h[er] opponents’ evidence.” Id. (citation and punctuation omitted).

Documents referenced in and attached to the petition and answers in this case show that Montia was the grantor of two deeds to secure debt on the property In her petition, Montia asserted that she held title to the property by virtue of a recorded warranty deed that she attached to her petition. But she also acknowledged the existence of the recorded security deed in favor of HSBC’s predecessor and attached to her petition a copy of the assignment of that deed to HSBC; and HSBC attached a copy of that security deed to its answer. And although, in her petition, Montia did not mention the recorded security deed that later was assigned to First-Citizens, she acknowledged and attached to her petition a copy of that assignment, and First-Citizens attached a copy of that security deed to its answer.

A grantor of a deed to secure debt who has not paid the debt has no legal title to the property at issue. See McCarter v. Bankers Trust Co., 247 Ga. App. 129, 132 (2) (543 SE2d 755) (2000).

A deed to secure debt passes legal title to the lender when the deed to secure debt is created, and the owner has a mere equity of redemption and right of possession of the realty until the secured debt has been satisfied in full. ... [A] s a matter of law, title does not pass back to the grantor in the absence of full payment of the debt.

Patel v. J. P. Morgan Chase Bank, N.A., 327 Ga.App. 321, 323 (1) (757 SE2d 460) (2014) (citations and punctuation omitted). A person whose property is subject to a deed to secure debt cannot prevail in a quiet title action unless she has satisfied the debt. See Taylor, Bean & Whitaker Mtg. Corp. v. Brown, 276 Ga. 848, 850 (2) (583 SE2d 844) (2003).

Consequently, the documents attached to the complaint and answer reflect that Montia did not have legal title to the property. And Montia did not assert in her petition that she had satisfied the debts on her property memorialized by the deeds to secure debt. Instead, she merely and summarily asserted that she had legal title to the property and the respondents did not. Her statements to this effect were not well-pleaded facts but legal conclusions. “The trial court was not required to accept [Montia’s] legal conclusions in consideration of the motion for judgment on the pleadings [and the motion to dismiss] where there were no specifically pled facts to support the conclusions.” Novare Group v. Sarif, 290 Ga. 186, 191 (4) (718 SE2d 304) (2011). Because Montia’s petition did not comply with the requirements of OCGA § 23-3-62, she failed to state a claim for quiet title for which relief can be granted. See GHG, Inc., supra, 275 Ga. at 336 (1). See also Bank of America, N.A. v. Johnson, 299 Ga. 861, 864 (2) (792 SE2d 704) (2016) (holding trial court properly granted motion to dismiss petition for quiet title where petitioner never alleged that security deed on property had been relinquished back to him or otherwise cancelled, and he admitted he had not satisfied the debt). For this reason, the trial court was authorized to grant the motion to dismiss and the motion for judgment on the pleadings.

Given this determination, we are not persuaded by Montia’s argument that the trial court should have submitted the case to a special master. See generally OCGA § 23-3-63 (“The court, upon receipt of the petition together with the plat and instruments filed therewith, shall submit the same to a special master [.] ”). In quiet title actions against all the world, a special master “shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land, or any part thereof, which may be adverse to the title claimed by the petitioner[.]” OCGA § 23-3-66. “[B]ut there is no authority divesting the trial court’s overall jurisdiction of the case.” Harbuck v. Houston County, 284 Ga. 4, 5 (1) (662 SE2d 107) (2008). And, in a case that was not submitted to a special master, our Supreme Court nevertheless held that it was proper for the trial court to dismiss a quiet title petition for failing to state a claim. See Bank of America, N.A., supra, 299 Ga. at 864 (2), reversing Johnson v. Bank of America, N.A., 333 Ga. App. 539, 543 (3) (773 SE2d 810) (2015) (indicating that case had not been submitted to a special master).

Decided June 20, 2017.

Muriel B. Montia, pro se.

Stokes Carmichael & Ernst, Marion B. Stokes; Locke Lord, Elizabeth J. Campbell, Aaron A. Wagner, for appellees.

Judgment affirmed.

Branch and Bethel, JJ., concur.

       First-Citizens did introduce an affidavit to support its request for summary judgment. Its motion and brief make clear, however, that First-Citizens did not rely on the affidavit to support its request for judgment on the pleadings.