author: Ellington, Presiding Judge.

text:
    A14A1771.
    CHEELEY INVESTMENTS, L.P. et al. v. ZAMBETTI.
    (770 SE2d 350)
   Ellington, Presiding Judge.

Cheeley Investments, L.P., Edward Breedlove, and SMC Properties, L.P. (collectively “Cheeley Investments”), brought this action in the Superior Court of Forsyth County against John Zambetti, seeking damages for breach of contract or, in the alternative, promissory estoppel. After a hearing, the trial court granted Zambetti’s two motions for summary judgment. Cheeley Investments appeals, and, for the reasons explained below, we reverse.

Under OCGA § 9-11-56 (c), a party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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[.]”

On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. Our review of the grant or denial of a motion for summary judgment is de novo.

(Citations and punctuation omitted.) Johnson v. Omondi, 294 Ga. 74, 75-76 (751 SE2d 288) (2013).

Viewed in the light most favorable to Cheeley Investments, as the nonmovant, the evidence showed the following. JR Real Estate Development, LLC (“JRD”) entered into an agreement to buy a certain tract of land in Gwinnett County from Cheeley Investments, L.P., a trust designated as the “SMC Family Trust U/A Dated May 18, 1998,” and Genevieve Breedlove (the wife of the appellant, Edward Breedlove). Zambetti executed the agreement as the manager of JRD, and Robert Cheeley executed the agreement on behalf of Cheeley Investments, L.P. and as trustee of the family trust. The agreement became binding by its express terms on May 12, 2008.

The agreement provided several options for closing dates,- the last being September 30, 2008. On that date, however, the parties executed an amendment to the agreement, waiving the escrow closing requirement and extending the closing date to November 14, 2008; JRD agreed to wire additional earnest money to the holder of the escrow funds. JRD was unable to close on November 14,2008. The parties discussed a possible reinstatement and extension of the expired agreement, but were unable to reach an agreement. On December 4, 2008, JRD filed in Gwinnett County an action for declaratory judgment, against Cheeley Investments, L.R, SMC Properties, L.P, and Genevieve Breedlove.

Cheeley deposed that, after learning about the declaratory judgment action, he called Zambetti that day and asked him why he was filing a lawsuit about the disbursement of the escrow funds, given that the parties were still trying to close the land deal. Cheeley testified that Zambetti told him that his (Zambetti’s) attorneys had advised him to file the lawsuit “in order to buy him some more time.” According to Cheeley, Zambetti told him that he had the money needed to close, and still planned to close, and said that he did not know why his attorneys believed it was necessary to file the lawsuit. Cheeley deposed that Zambetti said, “I will pay your attorneys’ fees” because Cheeley and Breedlove had been “honorable men” and held up their end of the bargain, and he “was not faulting [them] in any way.” Cheeley deposed that he accepted Zambetti’s offer. That same day, Cheeley wrote an e-mail to the escrow attorney, saying that he had spoken with Zambetti, who had apologized for JRD’s lawsuit, and he relayed Zambetti’s statement they were trying to buy some time to close the land deal and they would “cover our $,” referring to Cheeley Investments’ legal expenses from the lawsuit.

In addition, Cheeley testified that Zambetti reiterated the promise to him twice, including at a meeting on December 19, 2008, in the presence of Edward Breedlove and several others. In addition, Breed-love deposed that he heard Zambetti say at that meeting that he was buying time to get the land deal closed and that he would pay whatever legal fees Cheeley Investments incurred.

1. Cheeley Investments contends that the trial court erred in concluding that the alleged oral agreement was unenforceable, specifically in that it was too uncertain as to the price term, and in granting on this basis Zambetti’s motion for summary judgment on Cheeley Investments’ breach of contract claim.

In this case, the record contains evidence that Zambetti admitted to Robert Cheeley that JRD filed its declaratory judgment action merely as a delaying tactic, to buy time and delay disbursement of the escrowed funds in the hopes of salvaging the Gwinnett land deal involving Cheeley Investments, L.P., and the other sellers. The record also contains evidence that Zambetti promised to pay the litigation expenses including attorney fees incurred by Cheeley Investments in responding to the action. Generally, contracts concerning the payment of attorney fees and expenses of litigation are enforceable. See Sylar v. Hodges, 250 Ga. App. 42, 43-44 (550 SE2d 438) (2001) (“Parties may establish contract terms on any subject matter in which they have an interest so long as their agreement is not prohibited by statute or public policy. There is no public policy against contracting for the recovery of attorney fees.”) (footnotes omitted); Hope & Assocs., Inc. v. Marvin M. Black Co., 205 Ga. App. 561 (1) (422 SE2d 918) (1992) (accord). In addition, there is evidence that, on behalf of Cheeley Investments, Robert Cheeley accepted Zambetti’s promise and that the promise accomplished Zambetti’s purpose in making it, that is, Cheeley Investments continued to negotiate the land deal despite JRD’s failure to close by the extended deadline. Thus, there is evidence from which a jury could find that Zambetti’s oral promise to pay Cheeley Investments’ legal expenses was supported by consideration. Evans v. Merrill Lynch Business Financial Svcs., 213 Ga. App. 808, 810 (3) (446 SE2d 215) (1994) (A lender’s agreement to forbear enforcement of its rights under a guaranty was sufficient consideration for a new financing agreement by the guarantor for repayment of the borrower’s debt.); Mann Electric Co. v. Webco Southern Corp., 194 Ga. App. 541, 542 (2) (390 SE2d 905) (1990) (Evidence presented a question of fact regarding consideration, where there was evidence that a general contractor was in material breach of a construction subcontract so as to excuse a subcontractor from further performance, as well as evidence that the subcontractor forbore exercising its remedies and elected to complete its performance in reliance upon the owner’s promise to pay the general contractor and the subcontractor jointly.).

With regard to the lack of “definiteness” as to “the price term,” we are guided by the general principle that Georgia law leans against destroying contracts on the basis of uncertainty. Triple Eagle Assocs. v. PBK, Inc., 307 Ga. App. 17, 20 (2) (704 SE2d 189) (2010); Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. 119, 121 (1) (485 SE2d 264) (1997); John K. Larkins, Jr., Ga. Contracts: Law and Litigation, § 5:1 (2d ed., updated September 2014). Moreover, the determination whether a contract contains the requisite certainty is made at the time enforcement is sought. Arrow Exterminators v. Gates Condominium Homeowners Assn., 294 Ga. App. 620, 622 (1) (669 SE2d 421) (2008); Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. at 121 (1). Our courts routinely enforce contractual provisions for attorney fees and expenses of litigation even when, at the time of the agreement, the triggering event (such as a legal proceeding to collect a debt by a creditor or the arbitration of a dispute arising out of a contract) has not and may never occur and where the agreed upon “price term” is no more definite than “reasonable attorney fees and expenses of litigation.” In this case, there is evidence from which a jury could find that Zambetti promised to pay the attorney fees and other expenses that Cheeley Investments would ultimately incur in responding to the declaratory judgment action, as discussed above, and that exact amount is susceptible of proof at the time of enforcement. Jones v. White, 311 Ga. App. 822, 827 (1) (a) (717 SE2d 322) (2011) (Amutual promise that a golf course developer would split consulting fees equally among several consultants was specific enough to be definitely and objectively ascertainable so as to form the basis of a contract.). To the extent the trial court was concerned that the agreement provided no cap on the obligation Zambetti undertook, the subject agreement, like contracts generally, is subject to the implied term of the duty of good faith and fair dealing. See John K. Larkins, Jr., Ga. Contracts: Law and Litigation, § 5:6 (2d ed., updated September 2014). Moreover, a jury could find that, although Zambetti may have expected the legal expenses to be less than Cheeley Investments ultimately demanded, Zambetti could have capped the legal expenses by having JRD close on the land deal and dismiss its declaratory judgment action. For these reasons, the trial court erred in granting Zambetti’s motion for summary judgment on Cheeley Investments’ breach of contract claim.

2. Cheeley Investments contends that genuine issues of material fact remain regarding whether Zambetti’s promise was communicated with sufficient particularity to be enforced under the doctrine of promissory estoppel and that the trial court therefore erred in granting summary judgment in favor of Zambetti on Cheeley Investments’ promissory estoppel claim.

Even when a promise is unenforceable as a contract, a promisee may recover under a theory of promissory estoppel because “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee ... and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44 (a). Although “[promissory estoppel does not apply to vague, indefinite promises [,]” a trier of fact could conclude that Zambetti’s promise to pay Cheeley Investments’ attorney fees and legal expenses in responding to JRD’s declaratory judgment action was sufficiently definite to be enforced, as discussed in Division 1, supra. (Citations and punctuation omitted.) Jones v. White, 311 Ga. App. at 830 (2) (b) (In light of a consultant’s testimony that a golf course developer promised to pay the consultant ten percent of the net developer’s fee if a bid was successful, and an e-mail sent by an agent of the developer to the company’s attorney instructing the attorney to draft an agreement reflecting that the consultant would receive such a share of the developer’s fee, a trier of fact could conclude that the developer made the promise and the amount was sufficiently definite to be enforced under the doctrine of promissory estoppel.). In this case, there is some evidence that Cheeley Investments relied on Zambetti’s promise and continued negotiating the land deal, all the while incurring legal expenses and losing the value of obtaining the return of the escrowed funds and the opportunity to seek another buyer. Whether the promise acted as a catalyst that induced Cheeley Investments to incur legal expenses, and whether such reliance was reasonable under the circumstances, are questions for the jury. Brown v. Rader, 299 Ga. App. 606, 611-612 (2) (a) (683 SE2d 16) (2009); Folks, Inc. v. Dobbs, 181 Ga. App. 311, 313-314 (2) (352 SE2d 212) (1986). See Ambrose v. Sheppard, 241 Ga. App. 835, 837 (528 SE2d 282) (2000) (“Questions of reasonable reliance are usually for the jury to resolve.”) (citation omitted). For these reasons, the trial court erred in granting Zambetti’s motion for summary judgment on Cheeley Investments’ promissory estoppel claim.

3. Zambetti contends that Cheeley Investments’ claims are precluded under the doctrines of res judicata and collateral estoppel and that the trial court’s summary judgment order must therefore be affirmed because the ruling is “right for any reason.”

First, Zambetti’s invocation of the right-for-any-reason rule is misplaced. In this case, the trial court did expressly rule on Zambetti’s argument that Cheeley Investments’ claims against him are barred by the doctrines of res judicata and collateral estoppel — and rejected it.

Furthermore, as the trial court correctly concluded, the record shows that, when the defendants in JRD’s earlier action (Cheeley Investments, L.P., SMC Properties, L.P., and Genevieve Breedlove) sought to add Zambetti as a party to that action, Zambetti opposed his joinder, and the trial court ruled in his favor. Because Zambetti personally was not a party to the earlier litigation, identity of parties is absent, and the issue of his personal and contractual liability for Cheeley Investments’ legal expenses has not been previously litigated and determined. Accordingly, this argument presents no basis for affirming the trial court’s summary judgment order. A. R. Hudson Realty v. Hood, 151 Ga. App. 778, 780 (1) (262 SE2d 189) (1979), disapproved on other grounds, Merrill Lynch, Pierce, Fenner & Smith v. Zimmerman, 248 Ga. 580 (285 SE2d 181) (1981).

Decided March 30, 2015

Reconsideration denied April 14, 2015

Miles Patterson Hansford Tallent, Dana B. Miles; Conley Griggs Partin, Cale Conley, Andre T. Tennille III, for appellants.

Jeffrey L. Evans; Merbaum Law Group, Andrew J. Becker, for appellee.

Judgment reversed.

Phipps, C. J., concurs. McMillian, J., concurs fully in Divisions 1 and 2 and concurs in judgment only in Division 3.

       Cheeley also tendered an affidavit consistent with his deposition.

       We note that, in moving for summary judgment, Zambetti does not identify as disputed the question whether he offered to pay Cheeley Investments’ legal expenses.

       Under Georgia law, “simple contracts,” those not otherwise defined in OCGA §§ 13-1-2 through 13-1-4, “may either he in writing or rest only in words as remembered by witnesses.” OCGA § 13-1-5. See OCGA § 13-1-6 (“Parol contracts shall include only contracts in words as remembered by witnesses”). Agreements for the payment of another party’s attorney fees and expenses of litigation are not among the seven specific types of contracts that are subject to the Statute of Frauds as provided in OCGA § 13-5-30. Moreover, Cheeley’s e-mail to his company’s real estate attorney is a writing that corroborates Zambetti’s verbal offer and reflects the general terms and the bargained for consideration. Jones v. White, 311 Ga. App. 822, 826-827 (1) (a) (717 SE2d 322) (2011) (An unexecuted written agreement drafted by one party and an e-mail by the other party to his attorney regarding the agreement were writings that corroborated testimony regarding an oral agreement to split consulting fees.).

       See OCGA § 13-3-42 (a), (c) (2) (Under Georgia law, “[a] forbearance” may be “a performance” that is sufficient to constitute consideration supporting a contract.); Mann Electric Co. v. Webco Southern Corp., 194 Ga. App. at 543 (2) (“Any benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to whom it is made, is sufficient consideration to sustain a contract. Damage or trouble to the promisee, as well as benefit to the promisor, is a sufficient consideration to support a promise.”) (citations, punctuation and emphasis omitted).

       See Magnetic Resonance Plus v. Imaging Systems Intl., 273 Ga. 525, 526-527 (1), (2) (543 SE2d 32) (2001) (A service contract for the maintenance of medical equipment that provided that the prevailing party in litigation arising from the contract would be entitled to recover “reasonable” attorney fees was enforceable according to the usual rules of contract interpretation.); Sylar v. Hodges, 250 Ga. App. at 43-44 (A contract to buy a tract of real property that provided that, in the event the agreement was enforced through an attorney, the defaulting party would be liable for the attorney fees and expenses of litigation of the nondefaulting party was enforceable according to its terms. The nondefaulting party was not required to show bad faith by the defaulting party.); Discovery Point Franchising v. Miller, 234 Ga. App. 68, 73-74 (5) (505 SE2d 822) (1998) (Afranchise agreement that provided that, in the event of a dispute, the prevailing party would be entitled to recover reasonable attorney fees and court costs from the other party was enforceable according to its terms.); see also OCGA § 13-1-11 (A contractual obligation to pay attorney fees in connection with the collection of a promissory note “shall be valid and enforceable and collectable as a part of such debt if such note ... is collected by or through an attorney after maturity [.]” If the note provides for attorney fees in a specific fraction of the principal and interest owing thereon up to 15 percent, such provision and obligation shall be valid and enforceable. If the note provides for “reasonable” attorney fees without specifying any specific fraction, a statutory formula applies.); TermNet Merchant Svcs. v. Phillips, 277 Ga. 342, 344-345 (1) (588 SE2d 745) (2003) (Where a lender unquestionably satisfies all of the requirements of OCGA § 13-1-11, which authorizes an award of attorney fees incurred in the collection of a promissory note, the lender is entitled to receive statutory attorney fees, and the trial court is without discretion to deny fees under the statute.); A & B Blind & Drapery Co. v. B & B Glass & Storefronts, 298 Ga. App. 210, 214 (3) (679 SE2d 782) (2009) (Apromissory note that provided that, in the event the note was collected through an attorney, the borrower would pay all costs of collection, including “reasonable” attorney fees was enforceable, and an award of attorney fees according to the applicable statutory formula was a reasonable fee.); see generally John K. Larkins, Jr., Ga. Contracts: Law and Litigation, § 12:31 (2d ed., updated September 2014); Lewis N. Jones, Ga. Legal Collections, § 3:20 (2d ed., updated June 2014).

       See Sanders v. Commercial Cas. Ins. Co., 226 Ga. App. at 120 (1) (Although indefiniteness in the subject matter of a contract that is so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void, “[wjhen a contract is substantially alleged, some details might be supplied under the doctrines of reasonable time or reasonable requirements.”) (citations and punctuation omitted).

       See Ambrose v. Sheppard, 241 Ga. App. 835, 837 (528 SE2d 282) (2000) (To survive summary judgment on a claim of promissory estoppel, the plaintiff is required to present evidence from which the jury could infer that (1) the defendant made a promise; (2) the defendant expected the plaintiff to rely on that promise; (3) the plaintiff did, in fact, rely upon it; and (4) injustice may be avoided only by enforcing the defendant’s promise.).

       See Abellera v. Williamson, 274 Ga. 324, 326 (2) (553 SE2d 806) (2001) (Under Georgia law, “a grant of summary judgment is to be affirmed if it is right for any reason[.]” In an appellate court’s de novo review, it should determine whether the trial court’s grant of judgment was warranted for any reason, including for an alternate ground asserted in the summary judgment motion that the trial court chose not to address in granting summary judgment.) (punctuation and footnote omitted).

       The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction____[T]he related doctrine of collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.
      (Citation and punctuation omitted.) Body of Christ Overcoming Church of God v. Brinson, 287 Ga. 485, 486 (696 SE2d 667) (2010). See OCGA § 9-12-40.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A1780, A14A1781.
    BICKERSTAFF v. SUNTRUST BANK; and vice versa.
    (770 SE2d 903)
   Ray, Judge.

These companion cases arise from a dispute between SunTrust Bank and one of its customers, Jeff Bickerstaff, Jr., over whether the parties must arbitrate their disagreement over what Bickerstaff contends are usurious bank card overdraft fees. In Case No. A14A1780, Bickerstaff argues that the trial court erred in denying his motion for certification of a class of SunTrust customers who also were charged the fees and in failing to find that SunTrust was barred from enforcing its arbitration provision as to the putative class. In Case No. A14A1781, SunTrust argues that the trial court erred in denying its motion to compel arbitration. For ease of analysis, we will address Case No. A14A1781 first and Case No. A14A1780 last. As detailed below, we affirm in both cases.

Bickerstaff opened a personal checking account with SunTrust in 2009, after agreeing to the bank’s Rules and Regulations for Deposit Accounts, which included a mandatory arbitration provision. In May 2010, in a case not involving Bickerstaff, a federal court determined that SunTrust’s mandatory arbitration provision was substantively and procedurally unconscionable under Georgia law. See In re Checking Account Overdraft Litigation, 734 FSupp.2d 1279, 1292 (II) (E) and n. 15 (S.D. Fla. 2010), later overturned in In re Checking Account Overdraft Litigation, MDL No. 2036, 459 Fed. Appx. 855, 858-859 (III) (11th Cir. 2012) (finding the arbitration clause conscionable). Approximately one month after the initial federal decision, in June 2010, SunTrust amended its arbitration agreement to allow customers a window of time in which to opt out of arbitration if they sent SunTrust written notice that complied with various requirements. Customers such as Bickerstaff had to opt out by October 1, 2010.

However, despite revising the agreement in June 2010, Sun-Trust did not actually give Bickerstaff or its other customers notice of this amendment until August 24, 2010. Nonetheless, on July 12, 2010, prior to any notice from SunTrust about the new opt-out provision and prior to the deadline for rejecting arbitration, Bicker-staff filed his complaint. He filed his amended complaint on August 9, 2010, also prior to any notice of the opt-out provision and prior to the deadline.

Only after Bickerstaff had filed his complaint did SunTrust print the following nonspecific language, which neither references the arbitration clause nor any deadline, in customers’ August 2010 monthly account statements:

An updated version of the “Rules and Regulations for Deposit Accounts,” which governs your [a]ccount, is now available and can be obtained at any branch office or at www. suntrust.com/rulesandregulations. All future transactions on your account will be governed by these updated rules and regulations.

SunTrust then made the new version of the Deposit Agreement, which included the arbitration opt-out and relevant dates, available at its branches and on its website. The opt-out provision directed customers to provide

written notice of your decision so that we receive it at the address listed below by the later of October 1, 2010 or within forty-five (45) days of the opening of your Account. Such notice must include a statement that you wish to reject the arbitration agreement section of these rules and regulations along with your name, address, Account name, Account number and your signature and must be mailed to the SunTrust Bank Legal Department, Attn: Arbitration Rejection, P.O. Box 2848, Mail Code 2034, Orlando, FL 32802-2848. This is the sole and only method by which you can reject this arbitration agreement provision. . . . You agree that our business records will be final and conclusive with respect to whether you rejected this arbitration agreement provision in a timely and proper fashion.

On the first business day after the opt-out deadline of October 1, 2010, SunTrust filed a motion to compel arbitration on October 4, 2010. It is undisputed that neither Bickerstaff nor his counsel knew about the opt-out provision and the October 1, 2010, deadline until SunTrust disclosed the information — after the opt-out had expired — in its motion to compel. The trial court, after a hearing, denied the motion. It is from that denial that the appeal in Case No. A14A1781 arises.

On April 13, 2013, Bickerstaff moved to certify a class of

[e] very Georgia citizen who had or has one or more accounts with SunTrust Bank and who, from July 12,2006, to the date the [cjourt certifies the class, (i) had at least one overdraft of $500.00 or less resulting from an ATM or debit card transaction (the “Transaction”); (ii) paid any Overdraft Fees as a result of the Transaction; and (iii) did not receive a refund of those Fees.

The trial court denied the motion for class certification. The appeal in Case No. A14A1780 arises from this denial.

In the two orders on appeal, the trial court determined that the initial agreement bound Bickerstaff and all SunTrust’s customers, and that the later amendment to the arbitration agreement was enforceable and was not unconscionable under Georgia law.

Case No. A14A1781

1. SunTrust argues that the trial court erred in denying its motion to compel arbitration by (1) finding that Bickerstaff effectively exercised his right to opt out by filing a lawsuit; (2) failing to consider SunTrust’s business records regarding whether Bickerstaff timely and properly rejected the arbitration agreement; and (3) finding that any failure on Bickerstaff’s part to comply sufficiently with the opt-out provision was excused by what the trial court determined were SunTrust’s own “misleading” actions in regard to the opt-out provision.

The trial court denied SunTrust’s motion to compel, reasoning that in filing his complaint, Bickerstaff had substantially complied with the opt-out provisions because all the information required “was communicated to or made readily available to SunTrust’s legal department by [Bickerstaff’s] pleadings” prior to the opt-out deadline. We agree.

Similar to our review of the grant or denial of a motion for summary judgment, which involves the elimination of all genuine issues of material fact, the standard of review from the grant or denial of a motion to compel arbitration is whether the trial court was correct as a matter of law. Harris v. SAL Financial Svcs., 270 Ga. App. 230, 231 (606 SE2d 293) (2004). “The construction of an arbitration agreement, like any other contract, presents a question of law, which is subject to de novo review.” (Footnote omitted; emphasis supplied.) Wells Fargo Auto Finance v. Wright, 304 Ga. App. 621, 621 (698 SE2d 17) (2010). The Supreme Court of Georgia has determined that “[t]he [Cjourt will take the contract by its four corners, and determine its meaning from its language, and, having ascertained from the arrangement of its words what its meaning is, will construe it accordingly.” (Citation and punctuation omitted.) Terry v. State Farm Fire & Cas. Ins. Co., 269 Ga. 777, 779 (2) (504 SE2d 194) (1998). “If the language of a contract is clear and unambiguous, the terms of the agreement are controlling and an appellate court should look no further to determine the intention of the parties.” (Citation omitted.) Id. at 778-779 (2). “The general rule in determining contract compliance is substantial compliance, not strict compliance, and this rule applies to a contract’s termination clause as well.” (Citation and punctuation omitted.) Del Lago Ventures v. QuikTrip Corp., 330 Ga. App.138, 142 (1) (b) (764 SE2d 595) (2014); OCGA § 13-4-20. Here, the arbitration agreement’s opt-out provision is equivalent to a termination clause. See generally Macon Water Auth. v. City of Forsyth, 262 Ga. App. 224, 225 (585 SE2d 131) (2003).

(a) SunTrust first argues that the trial court erred in denying its motion to compel based on its allegedly erroneous finding that, by filing a lawsuit, Bickerstaff effectively opted out of the arbitration agreement. SunTrust essentially argues that Bickerstaff must strictly comply with the arbitration contract and that its filing of the lawsuit merely equates to “no compliance[.]” (Emphasis in original.) This is incorrect.

Although the arbitration agreement laid out specific requirements that Bickerstaff had to follow to terminate the arbitration agreement,

[nevertheless, substantial compliance is the general rule. Strict compliance is the exception, applying to cases concerning termination notices that result in forfeiture of real property rights under a lease or easement, or revocation of a surety. None of these circumstances are present here[.] . . . Moreover, substantial compliance with notice provisions may suffice as long as the relevant information is communicated.

(Citations and punctuation omitted; emphasis supplied.) Del Lago Ventures, supra at 143 (1) (b). “As a rule, any notice requirement must be reasonably construed. And substantial compliance with a notice provision may present an issue for the [trier of fact] if the evidence appears to be ‘in the spirit’ of the contract provision.” (Punctuation and footnote omitted.) Western Surety Co. v. Dept. of Transp., 326 Ga. App. 671, 676 (1) (b) (757 SE2d 272) (2014). The key issue is whether SunTrust had actual notice of the information required by its opt-out clause, including Bickerstaff’s intent to litigate rather than arbitrate. See APAC-Georgia v. Dept. of Transp., 221 Ga. App. 604, 606 (2) (472 SE2d 97) (1996).

The opt-out provision at issue required customers to reject arbitration by providing six pieces of information: (1) name; (2) address; (3) account name; (4) account number; (5) signature; and (6) a statement indicating the account holder was rejecting arbitration. The customer had to provide that information in three specific ways: (1) in writing; (2) mailed to SunTrust’s legal department at the Florida address listed above; (3) by October 1,2010, or within 45 days of opening an account.

It is undisputed that the complaint and amended complaint are in writing, and although they were not mailed to the Florida address, they were successfully served upon SunTrust. Also, it is clear that SunTrust’s legal department received them and retained outside counsel, who filed an answer prior to the opt-out deadline. When Bickerstaff filed his complaint, he provided his name; his county and state of residence and his attorneys’ addresses; some transaction and overdraft dates and fee percentages related to his account, but no account number; and his attorney’s signature. Obviously, the complaints indicated Bickerstaff’s intention to litigate.

Further, the record shows that SunTrust had all the information required by the opt-out provision prior to the deadline. In an affidavit prepared in support of SunTrust’s motion to compel arbitration and dated September 29, 2010 — prior to the October 1, 2010, opt-out deadline — a senior vice president at SunTrust listed Bickerstaff’s account name and number and included as an exhibit Bickerstaff’s signature card for the account. The affidavit provides that Bickerstaff “was notified by mail that an updated Deposit Agreement was available [,]” and references as an exhibit the account statement that contained the notice. That account statement includes Bickerstaff’s address. Further, Bickerstaff’s attorneys signed the complaint and amended complaint while acting on his behalf and as his agents.

SunTrust argues that “neither the complaint nor the amended complaint notified SunTrust that [Bickerstaff] wished to opt out of the Arbitration Agreement in its entirety’ and that Bickerstaff “could have filed the complaint with the intention of seeing whether Sun-Trust desired to have his asserted claims resolved by arbitration[,]” yet, in filing the complaint, Bickerstaff unconditionally sought to have the trial court decide these issues, not an arbitrator, necessarily meaning that he was opting out of the arbitration requirement. Further, both SunTrust’s Answer and its Memorandum of Law in Support of its Motion to Compel Arbitration and Stay Action demonstrate that SunTrust clearly understood that Bickerstaff desired that all of his claims in litigation escape any requirement of arbitration.

Further, all the information required by the opt-out clause — including Bickerstaff’s name, address, account name and number and intent to reject arbitration and litigate instead — was timely communicated to or was in SunTrust’s possession in a way that substantially complied with the arbitration contract. The signature of Bickerstaff’s counsel substantially complies with the signature requirement. See OCGA § 10-6-5 (“[w]hatever one may do himself may be done by an agent”). “Substantial compliance with notice provisions ... may suffice so long as the contemplated information is communicated.” (Footnote omitted.) Wallick v. Period Homes, 252 Ga. App. 197, 203 (3) (555 SE2d 863) (2001) (although a contract required written notice, denial of summary judgment to appellant was appropriate where jury could find that oral notice contained the requisite information). The trial court did not err.

(b) SunTrust argues that the trial court erred in failing to consider the bank’s business records on the issue of whether Bicker-staff timely and properly rejected the arbitration agreement. Sun-Trust provides no record citation showing where this argument was raised below or properly preserved for our review, nor does SunTrust cite to any authority in support of its argument, which is not properly presented as a separate enumeration of error in contravention of our Rule 25 (a) (1), (3) and (c) (1), (2). This enumeration is deemed abandoned.

(c) Because of our determination in Division 1 (a) of Case No. A14A1781, we need not reach SunTrust’s remaining enumeration of error.

Case No. A14A1780

2. Bickerstaff argues that the trial court erred in denying his motion for class certification and in failing to find that SunTrust was barred from enforcing its arbitration clause against customers other than Bickerstaff.

On review of an order denying class certification, “we will consider the factual findings as adopted by the trial court and affirm them unless clearly erroneous, and we will review the conclusions of law for an abuse of discretion.” (Punctuation and footnote omitted.) American Debt Foundation v. Hodzic, 312 Ga. App. 806, 808 (720 SE2d 283) (2011). Bickerstaff bears the burden of showing that certification is appropriate. Id.

To obtain class certification, the plaintiffs are required to satisfy all four prerequisites set forth in OCGA § 9-11-23 (a), and at least one factor in OCGA § 9-11-23 (b). American Debt Foundation, supra. OCGA § 9-11-23 (a) provides:

One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) The class is so numerous that joinder of all members is impracticable; (2) There are questions of law or fact common to the class; (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) The representative parties will fairly and adequately protect the interests of the class.

(Emphasis supplied.) The failure of any one of the OCGA § 9-11-23 factors is sufficient to defeat class certification. Diallo v. American InterContinental Univ., 301 Ga. App. 299, 306 (3) (687 SE2d 278) (2009). Here, the trial court’s order analyzed only the numerosity factor, finding that although Bickerstaff effectively opted out of the agreement for himself by filing suit, he could not do so on behalf of the class; thus, as a class of one, he failed to meet the numerosity requirement.

Bickerstaff argues that the trial court erred in denying his motion for class certification. We find no grounds for reversal.

(a) Bickerstaff argues that in rendering its decision, the trial court erred in applying the federal presumption favoring arbitration. Specifically, he contends that the trial court mistakenly relied on that presumption “in determining the existence of an agreement to arbitrate,” and that the presumption only applies when determining the scope of an agreed-upon arbitration clause. (Emphasis supplied.) SunTrust counters that the trial court “only referenced federal policy favoring arbitration [,]” which is taken into consideration when applying ordinary State law.

Here, the trial court determined that the SunTrust customers in Georgia who were assessed overdraft fees during the relevant time period were subject to an enforceable arbitration agreement. Thus, the arbitration amendment did not change the binding nature of the agreement unless and until putative class members had exercised their right to opt-out or the trial court had determined that Bicker-staff could opt out on their behalf.

As the Eleventh Circuit Court of Appeals stated in Dasher v. RBC Bank (USA), 745 F3d 1111, 1116 (II) (B), n. 5 (11th Cir. Fla. 2014),

the federal policy favoring arbitration is taken into consideration even in applying ordinary [S]tate law. The federal policy favoring arbitration is not, however, the same as applying a presumption of arbitrability. We only apply the presumption of arbitrability to the interpretation of contracts if we have already determined that, under [S]tate law, the parties formed a valid agreement to arbitrate.

(Citation and punctuation omitted.) Pretermitting which standard the trial court used, we will affirm its denial of class certification if right for any reason. Ardis v. Fairhaven Funeral Home & Crematory, 312 Ga. App. 482, 484, n. 1 (718 SE2d 843) (2011).

(b) Bickerstaff next argues that the trial court erred in determining that he was not empowered to reject arbitration on behalf of the class prior to certification.

The trial court, in denying SunTrust’s motion to compel arbitration, essentially determined that the arbitration agreement was not enforceable as to Bickerstaff because he had successfully opted out. In its denial of class certification, the trial court analyzed whether the arbitration contract itself permitted Bickerstaff to opt out on behalf of others.

Under 9 USC § 2,

[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

This provision reflects

both a liberal federal policy favoring arbitration, and the fundamental principle that arbitration is a matter of contract. In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms. The final phrase of § 2, however, permits arbitration agreements to be declared unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.” This saving clause permits agreements to arbitrate to be invalidated by “generally applicable contract defenses . . .” but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.

(Citations and punctuation omitted.) AT&T Mobility, LLC v. Concepcion, 563 U. S. 333 (131 SCt 1740, 1745-1746 (II), 179 LE2d 742) (2011). See Dasher, supra. “Whether there is a valid agreement to arbitrate is generally governed by state law principles of contract formation, and is appropriate for determination by the court.” (Citation omitted.) Triad Health Mgmt. of Ga., III v. Johnson, 298 Ga. App. 204, 206 (2) (679 SE2d 785) (2009).

Here, each of the members of the putative class, like Bickerstaff, presumably signed his or her own individual Deposit Agreement contract with SunTrust, which contains the arbitration provision. The Deposit Agreement provides:

These rules and regulations constitute a contract between you and the Bank____This agreement is for the benefit of, and may be enforced only by, you and the Bank and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party.

(Emphasis supplied.) The agreement also provides:

You may reject this arbitration agreement provision^] ... To reject this arbitration agreement provision, you must send the Bank written notice of your decision[.]... This arbitration agreement provision will apply to you and us and to your Account unless you reject it by providing proper and timely notice as stated herein.

(Emphasis supplied.) The agreement defines “you” and “your” as the “[d]epositor[,]” which “means the owner of the Account and each person who signs the signature card for the Account or is referenced on the Bank’s records as an owner of the Account.” Bickerstaff does not argue, nor do we find, any evidence that any member of the putative class is a joint signatory on Bicker staff’s account, or a successor, transferee, or assignee. However, Bickerstaff now proposes to alter the arbitration contracts of the putative class.

In general, “a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified.” (Citations omitted.) The Standard Fire Ins. Co. v. Knowles,_ U. S._(133 SCt 1345, 1349 (II), 185 LE2d 439) (2013). In order to opt out on a pre-suit basis to satisfy the numerosity requirement, Bickerstaff would have to legally bind class members to a rejection of the arbitration clause — at least until they opted out of the class itself once it was certified. This he cannot do. Further, the Deposit Agreement contract and its arbitration clause prohibit Bickerstaff from altering others’ contracts where he is neither a party nor in privity with a party.

“[T]he construction of a contract is a question of law for the court that is subject to de novo review. Where contract language is unambiguous, construction is unnecessary, and the court simply enforces the contract according to its clear terms.” (Footnote omitted.) Losey v. Prieto, 320 Ga. App. 390, 390-391 (739 SE2d 834) (2013). See also 9 USC § 2. Here, the contract terms are plain: Bickerstaff was not a privy nor a party to any contract between SunTrust and putative class members, and each individual account holder had to opt out for himself or herself. Nor were Bickerstaff or the putative class members beneficiaries of one another’s contracts with SunTrust such that Bickerstaff could enforce or alter those contracts. See Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 390-392 (1) (367 SE2d 278) (1988) (where indemnification contract specifically provided that the contract was solely for the benefit of the signatories, there could be no third-party beneficiaries). See also Southeast Grading v. City of Atlanta, 172 Ga. App. 798, 800 (1) (324 SE2d 776) (1984) (for a third party to have standing to enforce a contract under OCGA § 9-2-20, the contract must clearly show it was intended for the third party’s benefit). The contract language clearly states that the agreement “is not for the benefit of, and may not be enforced by, any third party.” “Given this explicit language, the intent of the parties that no others benefit from the [arbitration opt-out provision] could scarcely have been more clearly and unambiguously expressed.” (Citation omitted.) Kaesemeyer v. Angiogenix, 278 Ga. App. 434, 437 (1) (629 SE2d 22) (2006) (finding that third party could not benefit from contract containing this language: “no other person shall have any right, benefit or obligation under this Agreement as a third party beneficiary or otherwise”) (punctuation omitted).

The cases Bickerstaff cites for the proposition that plaintiffs may satisfy preconditions for suit in a class action are distinguishable, and do not demand or even recommend a different result, because none of them implicate the type of contractual language at issue here. See Schorr v. Countrywide Home Loans, 287 Ga. 570, 570-571, 573 (697 SE2d 827) (2010), Barnes v. City of Atlanta, 281 Ga. 256, 257-258 (637 SE2d 4) (2006), J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372, 374 (1) (a) (634 SE2d 123) (2006) (all involved statutory language that did notrequire each individual to act for himself or herself); and Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 720, 726-728 (1) (698 SE2d 19) (2010) (named plaintiff could provide written notice on behalf of other insureds where, inter alia, appellate court found that where insurance policy made refunds contingent on written notice provided “either by or on behalf of the insured,” and where written notice was not a condition precedent to a claim) (emphasis supplied).

Decided March 30, 2015

Reconsideration denied April 14, 2015

C. Ronald Ellington; Bondurant, Mixson & Elmore, Michael B. Terry, Steven J. Rosenwasser, Jason J. Carter; The Finley Firm, J. Benjamin Finley, MaryK. Rogers, MaryBeth V. Gibson, for appellant.

Troutman Sanders, William N. Withrow, Jr., Jaime L. Theriot, Lindsey B. Mann, for appellee.

Two cases applying the law of other jurisdictions also address the issue, but they are not binding authority and make no factual findings about whether there were contractual provisions, as in the instant case, that specifically limit action under the contract to the parties. Compare Kornberg v. Carnival Cruise Lines, 741 F2d 1332, 1336-1337 (11th Cir. 1984) and Latman v. Costa Cruise Lines, 758 S2d 699, 704 (IV) (Fla. Dist. Ct. App. 2000) (both allowing named plaintiff, a cruise line passenger, to provide contractual notice on behalf of other passengers).

Here, the contractual language itself prohibits Bickerstaff from opting out on behalf of others. Thus, as the trial court determined, he cannot satisfy the numerosity requirement of OCGA § 9-11-23. Because of this, we need not analyze the remaining factors. We affirm the trial court.

3. Bickerstaff’s final enumeration appears to argue that — independent of Bickerstaff himself — the trial court erred in finding that the arbitration agreement was enforceable as to all other affected SunTrust customers standing alone because they never assented to the agreement and because SunTrust by its own conduct waived its right to require timely compliance with the opt-out provision. Our decision in Division 2 affirming the trial court’s denial of class certification moots this contention, as we have no ability to analyze claims of nonparties unconnected to Bickerstaff’s own. See Standard Fire, supra at 1349 (II).

Judgments affirmed.

McFadden, J., concurs. Andrews, P. J., concurs in judgment only.

       It is undisputed that the Federal Arbitration Act, 9 USC § 1 et seq., governs the parties’ agreement.

       At the outset, we address Bickerstaff’s motion to dismiss this appeal. Bickerstaff argues that because we initially granted SunTrust’s interlocutory appeal on this matter, then later dismissed it as improvidently granted, that dismissal is either law of the case or res judicata on the issues now raised in Case No. A14A1781. First, this Court’s dismissal was not an adjudication on the merits and is not res judicata. Holmes v. Achor Center, Inc., 249 Ga. App. 184, 186-187 (1) (547 SE2d 332) (2001); Henderson v. Justice, 237 Ga. App. 284, 287 (1) (514 SE2d 713) (1999) (physical precedent only). See American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 644, n. 3 (732 SE2d 746) (2012), citing Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538) (1983) (recommending that “trial courts, except in the clearest cases, certify orders granting or denying such [motions to] stay judicial proceedings pending arbitration”) (emphasis supplied). Further, the law of the case rule does not bar this appeal, as it applies only to decisions that resolve an issue, not to issues raised but never ruled upon. See Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001). Bickerstaff’s motion to dismiss is denied.


author: Miller, Judge.

text:
    A14A1822.
    A14A1958.
    A14A2004.
    ESTRADA-NAVA v. THE STATE. PADILLA-CHAVEZ v. THE STATE. DURON v. THE STATE.
    (771 SE2d 28)
   Miller, Judge.

Following a joint jury trial, Juan Manuel Estrada-Nava, Fernando Padilla-Chavez, and Carlos Humberto Duron (collectively, the “Defendants”) were convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (2009)). The Defendants appeal from the denial of their motions for new trial, contending that the trial court erred in admitting evidence obtained from an illegal wiretap; the evidence was insufficient to support their convictions; and the evidence was insufficient to prove venue. Discerning no error, we affirm their convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citation omitted.) Liger v. State, 318 Ga. App. 373, 373-374 (734 SE2d 80) (2012).

So viewed, the evidence shows that as part of a long-term investigation, the Atlanta High Intensity Drug Trafficking Area Task Force (the “HIDTA Task Force”) received authorization to wiretap Duron’s cell phone. In 2009, based on the intercepted phone calls, HIDTA Task Force officers believed that Duron was brokering a sale of ten kilograms of cocaine to take place on August 13. From the information gathered from the wiretap of Duron’s phone, police officers expected that the purchasers of the drugs would provide the sellers with a green Dodge Dakota equipped with hidden compartments that the sellers would load with drugs and return to the purchasers. The transaction would take place at a QuikTrip gas station located off Indian Trail Road in Gwinnett County.

HIDTA Task Force officers set up surveillance at the gas station on the afternoon of August 13. Police officers observed Estrada-Nava arrive at the gas station in a green Dodge Dakota. Shortly thereafter, a black Ford F-150 arrived. Javier Zarate-Calleja exited the F-150 and went inside the store. Estrada-Nava also went inside the store. When Zarate-Calleja exited the store, he directed Victor Ortega Valdovinos, who had arrived in a red Chevrolet Tahoe, to park in between the Dakota and the F-150. Valdovinos then exited the Tahoe and got into the Dakota. At this time, Estrada-Nava exited the store. Estrada-Nava got into the Dakota and remained there for a few minutes before getting into the Tahoe.

Valdovinos then drove the Dakota to the seller’s stash house in Lilburn. While the Dakota was at the stash house, the seller called Duron because the individuals at the house needed help opening the vehicle’s two hidden compartments. The seller also told Duron that they did not want the buyers to put the money in the Dakota’s hidden compartments because these compartments were difficult to open. The seller then advised Duron that the Dakota would be driven to La Cazuela, a restaurant located on Indian Trail Road about a mile from the gas station, and the buyers could retrieve the Dakota at the restaurant.

Soon thereafter, Duron called Zarate-Calleja and directed him to go to La Cazuela because the Dakota was about the leave the stash house. At that point, Estrada-Nava left the gas station in the Tahoe and drove to La Cazuela. Shortly thereafter, Zarate-Calleja and a driver arrived at the restaurant in the F-150. Estrada-Nava then exited the Tahoe and entered the restaurant. When Valdovinos arrived at the restaurant, Estrada-Nava exited the restaurant, and he exchanged vehicles with Valdovinos. Estrada-Nava left La Cazuela, Zarate-Calleja followed in the F-150, and Valdovinos left in the Tahoe, headed in a different direction.

Estrada-Nava and Zarate-Calleja subsequently met at a Nor-cross residence. Zarate-Calleja called Duron to notify Duron that he was going to test the quality and quantity of the cocaine. A short time later, Zarate-Calleja left the Norcross residence, riding as a passenger in the F-150. Zarate-Calleja called Duron and advised that he thought he was being followed by law enforcement officers. Zarate-Calleja also informed Duron that he had one kilogram of cocaine with him, while the rest of the cocaine was in another vehicle. Zarate-Calleja stopped at a strip mall, and he and Duron discussed either hiding the kilogram of cocaine or having someone meet Zarate-Calleja to take it. During this time, police officers observed Zarate-Calleja walk in and out of several businesses and go in and out of the vehicle.

When the F-150 began to leave, officers moved in, blocked the vehicle, and arrested the driver. Zarate-Calleja was not in the vehicle, but officers found him a short distance away and arrested him. Police officers searched the F-150 and found items consistent with testing narcotics, such as a digital scale, a cutting board, a glass jar, and a razor knife. The scale tested positive for the presence of cocaine. Police officers then searched the area for the kilogram of cocaine, and found it in a QuikTrip bag, along with items that Zarate-Calleja had previously bought at the QuikTrip gas station.

At the same time that Zarate-Calleja left the Norcross residence, Padilla-Chavez drove away in the Dakota. State Troopers were summoned to the area to conduct a stop, but they were unable to arrive in time. About thirty minutes later, a State Trooper stopped the vehicle and conducted a search with the assistance of other police officers. They found the hidden compartments and, while they did not find any cocaine in the vehicle, a drug dog alerted to the residual odor of cocaine.

Police officers subsequently obtained a warrant to search the Norcross residence, where they encountered and arrested EstradaNava, but did not find any drugs or money. Police officers also obtained and executed a search warrant on the Lilburn stash house, where they arrested Valdovinos and recovered $559,679 in cash, the Tahoe, 103 kilograms of cocaine, packaging material, plastic wrap, a money counter, and a small amount of crack cocaine.

Some of the cocaine recovered from the Lilburn stash house had packaging markings identical to markings found on the kilogram of cocaine recovered at the strip mall where Zarate-Calleja was arrested. The one kilogram of cocaine recovered at the strip mall had a purity of 73.8 percent. A composite sample taken from the cocaine recovered from the stash house had a purity of 73.5 percent.

1. On appeal, all three Defendants contend that the trial court erred in admitting evidence obtained from the wiretap because the superior court’s order granting the wiretap warrant authorized the warrant to be executed outside of its judicial circuit, in contravention of Luangkhot v. State, 292 Ga. 423 (736 SE2d 397) (2013). Luangkhot held that

in the absence of any state statute expressly granting superior courts the authority to issue wiretap warrants that apply outside their own judicial circuits,... current state law vests the authority to issue wiretap warrants only in those superior courts of the judicial circuits in which the tapped phones or listening post are located.

Id. at 428 (4).

In this case, some of the Defendants filed motions to suppress arguing that the wiretap authorizations had expired, the intercepted calls exceeded those allowed by any warrant, and the intercepted calls were not properly minimized. None of the Defendants, however, filed motions to suppress on the grounds that the wiretap evidence should be suppressed because the superior court lacked authority to issue a wiretap warrant that was executed outside its judicial circuit.

Under OCGA § 17-5-30 (b), a motion to suppress must “be in writing and state facts showing that the search and seizure were unlawful.”

Compliance with OCGA § 17-5-30 (b) is required because evidence exclusion is an extreme sanction and one not favored in the law. . . . [0]n a motion to suppress, the State is entitled to proper notice of the issue raised or it will be deemed waived. In other words, the suppression motion must be sufficient to put the State on notice as to the type of search or seizure involved, which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.

(Citations and punctuation omitted.) Young v. State, 282 Ga. 735, 736 (653 SE2d 725) (2007). Since the Defendants did not file a motion to suppress arguing that the superior court lacked authority to issue the wiretap warrants in this case, they waived this entire issue. See Deleon-Alvarez v. State, 324 Ga. App. 694, 699 (2) (a) (751 SE2d 497) (2013) (defendant waived challenge to wiretap evidence based on Luangkhot because he did not seek suppression before the trial court); see also Smith v. State, 205 Ga. App. 848, 848-849 (2) (424 SE2d 60) (1992) (enumeration of error challenging the validity of a warrant was waived where motion to suppress did not raise ground alleged in enumeration). Therefore, since the Defendants waived the issue, they have presented nothing for us to review, and we uphold the denial of their motions to suppress.

2. The Defendants also contend that the evidence was insufficient to sustain their convictions for trafficking. We disagree.

Former OCGA § 16-13-31 (a) (1) provided that any person “who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine” commits the felony offense of trafficking in cocaine. OCGA § 16-13-31 (2009). To convict the Defendants of cocaine trafficking, the State was required to prove: (1) that the defendants possessed a substance; (2) that the substance was cocaine or a mixture with a purity of ten percent or more of cocaine; (3) that the quantity of the substance was 28 grams or more; and (4) that the defendants did so knowingly. See Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014) (the State has to prove defendant’s knowledge of the nature and amount of the drug and of being in possession of it); Harrison v. State, 309 Ga. App. 454, 456 (2) (711 SE2d 35) (2011).

With respect to the possession required for a trafficking conviction, a defendant does not need to be holding the contraband in his hand or have it physically on his person; joint constructive possession of contraband is also sufficient. Valdez v. State, 310 Ga. App. 274, 276 (1) (712 SE2d 656) (2011). Additionally, a person who knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is in constructive possession of it. See White v. State, 313 Ga. App. 605, 606 (1) (722 SE2d 198) (2012). Furthermore, even if a defendant does not directly commit the trafficking offense, he is a party to the crime if he intentionally aids or abets another in its commission. See OCGA § 16-2-20 (b) (3); Valdez, supra, 310 Ga. App. at 276 (1). Here, the evidence set forth above was sufficient to convict the Defendants of drug trafficking.

(a) Duron

Notably, the evidence showed that Duron arranged a drug sale involving ten kilograms of cocaine; monitored and directed the transfer of vehicles, and monitored the testing of the cocaine once received. Additionally, when Zarate-Calleja discovered that he was being followed by police, Duron conducted counter-surveillance against the police and attempted to help Zarate-Calleja get rid of a kilogram of the cocaine. Accordingly, the evidence was sufficient to convict Duron.

(b) Estrada-Nava

Estrada-Nava drove the vehicle described in the wiretap intercept — the Dodge Dakota — to the QuikTrip gas station, and EstradaNava exchanged vehicles there. See Aguilera v. State, 320 Ga. App. 707, 709, n. 5 (740 SE2d 644) (2013) (vehicle swapping is a common method used by drug traffickers to facilitate the clandestine exchange of drugs and money). Shortly after Duron informed Zarate-Calleja that the Dakota needed to be retrieved at La Cazuela because it was leaving the stash house, Estrada-Nava left the gas station and drove to the restaurant. Once Estrada-Nava retrieved the Dakota, he drove it to the Norcross house where the drugs were tested by Zarate-Calleja, who presumably discarded a kilogram of cocaine after attempting to elude police. From this evidence, the jury was authorized to conclude that Estrada-Nava committed the offense of cocaine trafficking.

(c) Padilla-Chavez

The evidence was also sufficient to support Padilla-Chavez’s conviction. In particular, the evidence showed that Padilla-Chavez left the Norcross residence in the Dakota at the same time as Zarate-Calleja, who had tested the cocaine and departed the residence with one kilogram of cocaine. When police officers stopped Padilla-Chavez in the Dodge Dakota about 30 minutes later, he initially gave a false name. Although no drugs were found in the Dakota, an intercepted phone call between Duron and Zarate-Calleja prior to Zarate-Calleja’s arrest indicated that the nine kilograms of cocaine had been successfully delivered using the Dakota. From this evidence, the jury was authorized to conclude that Padilla-Chavez was involved in transporting the nine kilograms of cocaine prior to being stopped by police officers. See Valdez, supra, 310 Ga. App. at 276-277 (1) (“presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred”).

3. The Defendants also contend that the State failed to prove venue. We disagree.

Venue is an essential element that must be proved beyond a reasonable doubt. As with all other essential elements of a crime, weighing the evidence of venue is a function of the jury, not of this Court. . . . Whether the evidence as to venue satisfied the reasonable-doubt standard is a question for the jury, and its decision will not be set aside if there is any evidence to support it.

(Citations and punctuation omitted.) Liger, supra, 318 Ga. App. at 374 (1).

In this case, a police officer testified about the surveillance conducted by the HIDTATask Force at the QuikTrip gas station, the Lilburn stash house, the restaurant, and the strip mall where Zarate-Calleja discarded the one kilogram of cocaine. The officer expressly testified that each of these surveillance locations were located within the confines of Gwinnett County. Moreover, the evidence showed that when the Dodge Dakota left the restaurant with ten kilograms of cocaine, it traveled through Gwinnett County. Based on this evidence, the jury was authorized to conclude that the trafficking offense was committed in Gwinnett County. See Ruiz v. State, 277 Ga. App. 178, 179 (2) (626 SE2d 136) (2006) (evidence was sufficient to prove venue in trafficking case where defendant agreed to deliver five kilograms of cocaine to a Clayton County location and the defendant arrived at the location with cocaine in his vehicle).

Judgments affirmed.

Doyle, R J., and Dillard, J., concur.

Decided March 19, 2015

Reconsideration denied April 14, 2015.

Drug violation. Gwinnett Superior Court. Before Judge Beyers. Sharon L. Hopkins, Tadia D. Whitner, Angela B. Dillon, for appellants.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

       Following the Supreme Court’s decision in Luangkhot, the General Assembly amended the wiretap statute, OCGA § 16-11-64, to give superior courts the authority to issue warrants that have state-wide application and permit the interception of phone calls from any location in the state. See OCGA § 16-11-64 (c) (effective February 13, 2013).


author: McMlLLIAN, Judge.

text:
    A14A1828.
    HUTCHINS v. COCHRAN, CHERRY, GIVENS, SMITH & SISTRUNK, P.C.
    (770 SE2d 668)
   McMlLLIAN, Judge.

Markel Hutchins appeals following the trial court’s grant of summary judgment to Cochran, Cherry, Givens, Smith & Sistrunk, PC. (the “Cochran Firm”) on Hutchins’s claim for quantum meruit/ unjust enrichment and for attorney fees connected to that claim. We affirm in part and reverse in part for the reasons set forth below.

This case arises out of the fatal shooting of Kathryn Johnston on November 21,2006 by undercover Atlanta Police Department (“APD”) officers serving a no-knock warrant at Johnston’s home. Johnston’s estate (the “Estate”) filed a lawsuit against the City of Atlanta (the “City”), the police chief, and several APD officers asserting claims, inter alia, for Johnston’s wrongful death and pain and suffering (the “Lawsuit”). The suit was eventually settled in August 2010 for $4.9 million (the “Estate Settlement”), and the settlement checks were made payable in two installments to both the Estate’s administrator, Sarah Dozier (“Dozier”), who was Johnston’s niece, and the Cochran Firm. See In re Estate of Johnston, 318 Ga. App. 324, 324-325 (733 SE2d 856) (2012).

Approximately one year after the Estate Settlement, Hutchins filed a petition for injunctive relief and damages against Dozier, individually and as administrator of the Estate; the Estate itself; and the Cochran Firm (collectively the “Defendants”), alleging that he had an oral agreement with Dozier to provide public relations and media-related services for the Estate and that he was entitled to compensation from all the Defendants for public relations and media-related services he had performed in connection with the Lawsuit. The Defendants first moved to dismiss the petition, but the trial court denied that motion.

Subsequently, in December 2012, Dozier passed away, and Hutchins ultimately entered into a “Confidential Agreement of Settlement Release and Assignment of Claims and Causes of Action” with Dozier’s estate, releasing all his claims against Dozier individually and as the administrator of the Estate (the “Dozier Settlement”).

Following discovery, the Cochran Firm moved for summary judgment on Hutchins’s claims, asserting that the claim for quantum meruit/unjust enrichment failed because (1) Hutchins admitted that during the pendency of the Lawsuit, he had no expectation of payment from the Cochran Firm over and above that arising from his alleged oral agreement with Dozier to act as spokesperson for the Johnston and Dozier families; (2) the evidence showed that Hutchins conferred no benefit upon and performed no services for the Cochran Firm in relation to the Lawsuit; and (3) Hutchins was reasonably compensated for any services he performed in connection with the Estate Settlement when he accepted consideration for releasing his claims against Dozier. Following briefing and a hearing, the trial court granted summary judgment without explaining its reasoning. Hutchins argues that the trial court erred in concluding that no genuine issue of material fact remained as to his claim of quantum meruit/unjust enrichment and that he is not entitled to recover attorney fees arising from that claim.

On appeal, “[w]e review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.” Latson v. Boaz, 278 Ga. 113 (598 SE2d 485) (2004). “To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Id. However, because the Cochran Firm would not bear the burden of proof at trial on the claim for quantum meruit, it must only “point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of [that claim]” in order to obtain summary judgment. (Citations omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). If the Cochran Firm is able to carry that burden, Hutchins “cannot rest on [his] pleadings [ ] but rather must point to specific evidence giving rise to a triable issue” in order to survive summary judgment. (Citation and punctuation omitted.) Id.

Construing the evidence in favor of Hutchins, the record shows that since 1993, Hutchins “[has] concentrated [his] work in the area of public, media, and community relations, with an emphasis on social justice.” In that regard, he established MRH, LLC (“MRH”), a consulting firm engaged in public affairs, public relations, crisis communication, inner city development, and management consulting.

On the night that Kathryn Johnston was killed by APD officers, Hutchins saw a woman he later learned was Dozier on television and observed that she appeared very upset. Concerned that the situation could lead to neighborhood unrest, or even violence, Hutchins got into his car and drove to the scene where he approached Dozier and offered to pray with her. She replied that if he really wanted to help, he could talk to the gathered media on behalf of the family. Dozier told Hutchins that the press had made her look like a fool and she would never talk to them again. At Dozier’s request, Hutchins then gave a statement on the family’s behalf. Dozier called him the next day and asked how much he would charge to be the family’s media spokesperson. Hutchins told Dozier that he would accept ten percent of whatever the family recovered in any civil lawsuit they filed arising out of Johnston’s death, and Dozier agreed to his terms.

Additionally on the night of Johnston’s shooting, Hutchins called attorney Hezekiah Sistrunk of the Cochran Firm from the scene of the incident to discuss the matter, and Hutchins subsequently referred Dozier to the Cochran Firm for legal representation. Hutchins understood that he had a pre-existing arrangement with Sistrunk, beginning with another high-profile case he referred to the Cochran Firm, that he would be paid for public relations, public affairs, crisis communication and related work he performed “specifically with the firm” in connection with the cases he referred. He based that understanding on Sistrunk’s representation, on more than one occasion, that when a case was over the firm would “take care” of Hutchins. When Sistrunk told Hutchins that the Cochran Firm would “take care” of him after the Johnston case was over, Hutchins understood this representation to mean that the Estate’s pursuit of the Lawsuit was a team effort, with Hutchins and his associates “managing the public aspects of [the case] to support the civil position and the lawyers . . . taking care of the legal aspects of it.”

However, Hutchins could not recall that he ever discussed with Sistrunk the amount of any compensation he would receive. And Hutchins never represented himself to the public as a consultant to the Cochran Firm or that he was “anything other than what I was”: “the spokesperson for the Estate of Kathryn Johnston, who is a civil rights activist, human rights activist, minister, consultant, [and] business owner.”

Hutchins asserts he performed a number of services for the Cochran Firm, including attending meetings with public officials, giving interviews, coordinating press conferences and news coverage, organizing commemorative ceremonies and a march, and traveling to Washington, D.C. to speak with federal officials to encourage a federal investigation into the case. Although these services were performed primarily in connection with the criminal investigation of the officers involved in the Johnston shooting, Hutchins asserted that they helped “create [ ] an atmosphere among those officers and their attorneys that was conducive [to] the development of evidence” in the Lawsuit. He took these actions with the intent to achieve a result that “would criminally predicate a strong civil position.” Hutchins also states that through such actions he acted as a liaison between the media and the Cochran Firm. And “on each and every occasion,” he asserts that he conferred with Cochran Firm attorneys to obtain their approval “for the actions and statements [he] made on behalf of the Johnston family and the claims and legal actions asserted against the City of Atlanta and others.” Additionally, during the pendency of the Lawsuit, Hutchins also asserts he kept public pressure on the City to resolve the case by holding press conferences, giving interviews, and hand-delivering a letter to City officials urging them to settle the case.

In contrast, the Cochran Firm attorneys and employees assert that although Hutchins was “a friend of the firm,” it never hired him as a consultant or expert or pre-approved his actions. Rather, Hutchins held himself out as the Johnston family’s spokesperson, and the Cochran Firm viewed him as a community activist attempting to raise awareness of issues in the community and to promote himself. The firm’s lawyers did not view Hutchins’s actions as helping the litigation, although they may have been good for the community. In fact, the Cochran Firm lawyers and personnel stated that at times, some of the things Hutchins said were not helpful and he became a hindrance. For example, attorneys for the United States and the City expressed reservations about Hutchins’s access to information, asking that he be excluded from attending certain meetings.

Hutchins admits that he did not attend the mediation or settlement negotiations between Cochran Firm lawyers and City attorneys that ultimately resulted in the Estate Settlement. In fact, he never spoke with any of the City attorneys in the civil case. And he could not recall any specific occasions when a Cochran Firm lawyer asked him for advice in connection with the Johnston case.

However, he testified that at the request of J ane Sams, one of the Cochran Firm attorneys, he wrote a letter expressing Dozier’s thoughts on the days the officers were indicted on criminal charges, which Sams read at an April 26, 2007 news conference. And Sams stated that there were occasions when she asked Hutchins “as a favor” or “as a friend” to get statements from Dozier or to see if Dozier would speak to some of the attorneys involved. Sams explained that Dozier did not like to be bothered, and Hutchins saw her almost daily because his son was enrolled in Dozier’s day care center. Accordingly, “there were statements that either he drafted and [Dozier] may have authorized or [Sams] drafted it and he got [Dozier] to sign off on.”

Additionally, Hutchins asserts that he worked on the wording of Cochran Firm press releases, particularly the firm’s May 1, 2007 press release about a trip he made to Washington, D.C. to meet with federal officials. Further, Hutchins stated that Tiffany Cochran, who became the communications director for the Cochran Firm beginning in October 2007, asked him to attend the press conference announcing the Estate Settlement in August 2010 because two of the lawyers who had worked on the case were out of town. Hutchins recalled at least one benefit he provided to the firm at that news conference. When one of the Cochran Firm lawyers mistakenly referred to Johnston as a grandmother, Hutchins interjected to clarify that Johnston had never had children or grandchildren.

Hutchins testified that in connection with his work on the Johnston case, he received a $5,000 check from the Cochran Firm on April 24, 2007, and the firm wrote an additional $20,000 “retainer” check on July 9, 2008 to his consulting business, MRH. However, the Cochran Firm asserts that these payments were not made to compensate for any services performed by Hutchins but rather were paid for other reasons, including as a donation to Hutchins’s campaign for Congress.

1. In order for Hutchins to recover in quantum meruit, he must present evidence demonstrating that (1) his services were valuable to the Cochran Firm; (2) his services were either at the request of the Cochran Firm or knowingly accepted by it; (3) the Cochran Firm’s receipt of the services without compensating Hutchins would be unjust; and (4) Hutchins expected compensation for his services at the time he provided them. Amend v. 485 Properties, 280 Ga. 327, 329 (627 SE2d 565) (2006); Wallin v. Wallin, 316 Ga. App. 455, 456 (1) (729 SE2d 567) (2012). However, “[t]he reasonable value which the provider is entitled to recover in quantum meruit is not the value of the labor but the value of the benefit resulting from such labor to the recipient.” Hollifield v. Monte Vista Biblical Gardens, 251 Ga. App. 124, 130 (2) (b) (553 SE2d 662) (2001). See also Wallin, 316 Ga. App. at 456 (1). And “[t]he theory of unjust enrichment is basically an equitable doctrine that the benefitted party equitably ought to either return or compensate for the conferred benefits when there was no legal contract to pay.” (Citation and punctuation omitted.) Bedsole v. Action Outdoor Advertising JV, 325 Ga. App. 194, 200 (3) (750 SE2d 445) (2013). See OCGA § 9-2-7 (“Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.”).

(a) To establish the first and second elements of his quantum meruit/unjust enrichment claim, Hutchins must present evidence that his services had value to the Cochran Firm and that the Cochran Firm requested or knowingly accepted his services. Hutchins asserts that he performed community actions, interacted with the media, and met with government officials, primarily in conjunction with the criminal investigation into Johnston’s shooting, and that he continued this work during the pendency of the Lawsuit to keep pressure on the City to settle. Hutchins contends that such services contributed to an atmosphere that led to the successful resolution of the case. For example, Hutchins asserts that his meetings, conversations, and correspondence with the Fulton County district attorney led the district attorney to accede to the Johnston’s family’s wishes that he work with federal authorities. Similarly, he contends that his trips to Washington, D.C. “solidified” the Justice Department’s intervention into the case and his various press conferences and public events kept pressure on the City.

But Hutchins has failed to produce any evidence that his activities contributed to the Estate Settlement and thus had any value to the Cochran Firm. The only evidence that Hutchins’s efforts led officials to make certain decisions or aided in resolving the Lawsuit comes from conclusory and self-serving testimony in his own affidavit and deposition. The record contains no evidence from any government official or anyone else indicating that Hutchins’s efforts affected any decisions regarding the criminal investigation. And Hutchins admitted that he had no involvement in the prosecution of the Lawsuit or in the negotiations leading to the Estate Settlement, and thus he has no firsthand knowledge of the factors that played a role in the City’s decision to settle. Moreover, the record contains no evidence from any City official, or anyone else, indicating that any actions by Hutchins created pressure or contributed to the City’s settlement decision. Indeed, the evidence in the record, from Cochran Firm attorneys who had firsthand involvement in the settlement negotiations, is to the contrary. And there is no evidence that the Cochran Firm requested Hutchins to engage in these general public relations activities or that they knowingly accepted these services.

“Each party has a duty to present his best case on a motion for summary judgment.” Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828 (2) (573 SE2d 389) (2002). And it is well settled that “[allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment.” (Citation and punctuation omitted.) Premier/Ga. Mgmt. Co. v. Realty Mgmt. Corp., 272 Ga. App. 780, 786 (3) (a) (613 SE2d 112) (2005). Accordingly, we find that Hutchins has failed to produce evidence supporting the two elements of his quantum meruit claim as to the community activities, media interviews, interactions with government officials, or other activities that he asserts created an “atmosphere” conducive to or a “predicate” for a favorable resolution of the Lawsuit. Thus, the trial court properly granted summary judgment as to any claim arising out of such activities. See generally Insignia/ESG v. Reproductive Biology Assoc., 269 Ga. App. 120, 124 (603 SE2d 434) (2004) (summary judgment proper on quantum meruit claim where evidence shows that direct negotiations with third parties, without plaintiff’s participation, achieved desired result); Hollifield, 251 Ga. App. at 129-130 (2) (b) (even where plaintiff rendered services with an expectation of compensation, where evidence showed no value to the recipient, no implied promise to pay arises).

(b) Nevertheless, the record also contains evidence that Hutchins performed certain, isolated services at the request of Cochran Firm attorneys or employees. In particular, Hutchins testified that he reviewed the wording of Cochran Firm press releases at the firm’s request, including the May 1, 2007 release; other evidence indicates that he prepared and/or reviewed drafts of letters or statements written on behalf of Dozier at Sams’s request including the April 26, 2007 statement; and Hutchins contends that he appeared at the August 2010 press conference announcing the Estate Settlement at Tiffany Cochran’s request. Although the Cochran Firm disputes that it asked Hutchins to perform at least some of this work, the evidence is sufficient to raise a jury issue as to whether such work was performed at the firm’s request and/or knowingly accepted by the firm. And evidence that the Cochran Firm may have used Hutchins’s work also raises a jury question as to whether the work had value to the firm separate and apart from any value it may have provided to the Johnston family or the Estate. See Langford v. Robinson, 272 Ga. App. 376, 380 (1) (612 SE2d 552) (2005) (where benefit conveyed was reaped by more than one recipient, each recipient is only liable for the value of the benefit it received). The record evidence also raises an issue as to whether it would be unjust not to compensate him for such work. Moreover, Hutchins’s testimony that Sistrunk told him that he “would take care” of him and evidence of the firm’s payments to Hutchins raise jury issues as to whether Hutchins performed such work with the expectation that he would be paid by the Cochran Firm. Jury issues also arise as to whether the payments Hutchins received from the Cochran Firm were intended as compensation for this work, and if so, whether such payments provided Hutchins sufficient compensation.

(c) The Cochran Firm asserts, however, that Hutchins admitted in his deposition that he was only expecting to recover under the ten-percent arrangement he had with Dozier. The firm cites Hutchins’s testimony that after the Estate Settlement, he contacted one of Dozier’s sons to arrange a meeting with Dozier “so I could get the compensation that I agreed to with Ms. Dozier and also from the Cochran Firm, but I was not seeking to recover any more than Ms. Dozier and I had agreed to.” (Emphasis in brief.) But the very language quoted indicates that Hutchins was looking for compensation from both Dozier and the firm. And the highlighted language could be interpreted as indicating that he did not seek to recover an amount in excess of ten percent of the Estate Settlement, not that he only expected to recover under his arrangement with Dozier.

We also find no merit to the Cochran Firm’s argument that the Dozier Settlement precluded any further recovery against the firm as a matter of law. Although each may have received value from Hutchins’s services, any recovery against the Cochran Firm under quantum meruit is limited to the value of any benefit the firm received separate and apart from that received by Dozier. Langford, 272 Ga.App. at 380 (1). The Dozier Settlement does not preclude a claim to recover such an amount.

We find, therefore, that the trial court erred in granting summary judgment on Hutchins’s quantum meruit/unjust enrichment claim as to the specific work Hutchins asserts he performed at the request of the Cochran Firm.

2. Because we affirm in part and reverse in part the trial court’s grant of summary judgment on Hutchins’s substantive claim for quantum meruit/unjust enrichment, we likewise affirm in part and reverse in part the trial court’s grant of summary judgment on Hutchins’s claim for attorney fees, which is derivative of that claim. See Stephen A. Wheat Trust v. Sparks, 325 Ga. App. 673, 682 (7) (754 SE2d 640) (2014). Accordingly, we reverse the grant of attorney fees as it relates to the claims discussed in Division 1 (b) above, and affirm the grant of summary judgment as to any other claim for attorney fees.

Decided March 26, 2015

Reconsideration denied April 14, 2015.

Taylor English Duma, Foy R. Devine, Kyle M. Baker, Lacrecia G. Cade, for appellant.

Polsinelli PC, William B. Hill, Jr., Alexander J. Bartko, for appellee.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Ellington, P. J., concur in judgment only.

       The trial court also granted summary judgment to the Cochran Firm on Hutchins’s claims for tortious interference with contractual or business relations, fraud, Georgia RICO violations, and related attorney fees, hut Hutchins does not appeal the grant of summary judgment on those claims.

       In that case, Hutchins appealed the probate court’s denial of his motion to set aside the discharge of the Estate’s administrator and his motion for an accounting and return of Estate funds. This Court vacated the probate court’s order and remanded for further proceedings consistent with the Court’s opinion. In re Estate of Johnston, 318 Ga. App. at 329.

       The Defendants sought an interlocutory appeal of that denial, which this Court initially granted but later dismissed as improvidently granted.

       The Cochran Firm filed a separate motion for summary judgment, which the trial court denied, asserting that because Hutchins failed to list his claims in this lawsuit in his bankruptcy petition, he was judicially estopped from further pursuing them. The trial court’s ruling on that motion is not at issue in this appeal.

       The appellate record does not contain a transcript of this hearing.

       Dozier never submitted to a deposition, but the testimony of Dozier’s children disputes Hutchins’s narrative of the development of his relationship with Dozier, and the children deny that Dozier entered into an agreement for Hutchins to act as family spokesperson for ten percent of the Lawsuit proceeds. Rather, they assert that Hutchins introduced himself as a representative of the Cochran Firm and a civil rights activist. At one point, Dozier signed an agreement with the Cochran Firm providing that anyone brought into the case (e.g., associated counsel) would be paid, and the family believed that Hutchins was being compensated under that agreement.

       He also stated that Tiffany Cochran, the firm’s communications director, told him that Sistrunk “would be fair” to him.

       We note that although the Cochran Firm quotes Sistrunk’s deposition in its brief, that deposition transcript was neither a part of the appellate record nor apparently of the record in the trial court below, and thus we have not considered any such citations. Only the exhibits to Sistrunk’s deposition are included in the record.

       Thus, the Cochran Firm asserts that it had no need of Hutchins’s services as a media specialist or public relations consultant, because it already had the services of Tiffany Cochran.

       Tiffany Cochran stated, however, that she merely called Hutchins to inform him of the Estate Settlement because it would be rude not to call him, as he had been the family spokesperson. And Sams stated that the firm allowed Hutchins to participate in certain news conferences because he wanted to increase his public profile.

       Nevertheless, the record indicates that Sistrunk would have been the person who authorized any payments to Hutchins, and as previously noted, his deposition is not included in the appellate record.

       We note that Hutchins sent an invoice to the Cochran Firm, which listed his hourly rate for performing such services, which he testified that he had charged at least one other client in the past. Although the appropriate measure of damages is the value to the Cochran Firm, the invoice provides at least some evidence of the potential value of Hutchins’s services. Compare Hollifield, 251 Ga. App. at 130-131 (2) (b), (c) (holding that plaintiff’s opinion as to the value of his services in providing improvements to land was insufficient on summary judgment for claims of quantum meruit and unjust enrichment where proper measure of value was “the reasonable value of labor and materials of benefit to the recipient or the amount which the improvements added to the fair market value of the land, whichever is the smaller,” and plaintiff provided no evidence regarding the fair market value of the land before and after the improvements).

       Audrey M. Tolson, a former Cochran Firm employee, testified that Hutchins’s media appearances in another case provided a benefit to the firm because he acted as a buffer between the Cochran Firm and the media. However, Tolson was unaware of whether Hutchins was ever paid in connection with that case. And although Tolson said she had a “general understanding” or “impression” that Hutchins performed a similar role on the Johnston case for which the firm would pay him, she did not work on the Lawsuit and “wasn’t involved enough to know specifically what he did.” Thus, Tolson did not identify any instances in the Johnston case, other than the August 2010 press conference, in which Hutchins participated.

       We note that Hutchins asserts in his reply brief that his claim for quantum meruit/unjust enrichment remains against the Estate. However, we express no opinion on that issue as Hutchins has not demonstrated that he raised the issue below nor has he pointed us to any ruling by the trial court in that regard that would be subject to our review. See Jackson v. State, 252 Ga. App. 16, 16-17 (2) (555 SE2d 240) (2001). In any event, this Court will not consider arguments raised for the first time in a reply brief. Vann v. Finley, 313 Ga. App. 153, 154, n. 2 (721 SE2d 156) (2011); Hooks v. Humphries, 303 Ga. App. 264, 269 (4), n. 8 (692 SE2d 845) (2010). Accordingly, the Cochran Firm’s request to file a surreply addressing that issue is denied.