author: Boggs, Judge. McFADDEN, Judge,

text:
    A13A2249.
    KISER v. THE STATE.
    (755 SE2d 505)
   Boggs, Judge.

Bobby Kiser appeals from his convictions for false imprisonment and theft by taking.* He contends that insufficient evidence supports his convictions and that the trial court erred by admitting hearsay during his trial and evidence of a previous conviction during the sentencing hearing. For the reasons explained below, we affirm Kiser’s false imprisonment conviction, reverse his theft by taking conviction, vacate his sentence, and remand this case to the trial court for resentencing.

1. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the record shows that a little after midnight on July 31, 2007, the victim received a telephone call from his good friend, Donald Zachery. Zachery, who owed the victim $575, asked the victim to come get his money immediately before Zachery went out of town early in the morning. Because the victim wanted to use the money to buy school clothes for his son, he decided to make the 25-minute drive from his home in Tifton to Zachery’s home in Adel. He had been to Zachery’s home “plenty of times” before and never had any problems.

When he arrived, he “pulled up in the yard,” and left his keys on top of the truck’s console with the doors unlocked, because he was not planning to stay long at Zachery’s home. Bobby Kiser, whom the victim knew and had met through Zachery several years before, was standing by the door and signaled the victim to come inside. The victim “thought nothing of it,” walked inside, and greeted Zachery. As the victim spoke with Zachery, he noticed that Kiser had closed the front door to the single wide mobile home and was standing with his back to the door “like he was standing guard.”

The victim testified that he had “never trusted” and “never vibed” with Kiser, and only interacted with Kiser through Zachery. The victim thought it was peculiar when Kiser closed the door and stood beside it. After he noticed that something “wasn’t right” with Zachery as well, the victim concluded, “something’s not right here.” Within three minutes of the victim’s arrival, he saw Jermaine Davis come from a back room of the mobile home with a gun “pointed straight out.” Fearing for his life, the victim decided not “to wait around” and “took off running” and dove through a closed glass window in a rear bedroom of the trailer. He testified that he could not exit through the door because Kiser “was guarding the door.” While the victim was running toward the rear bedroom, he saw Kiser pull out a chrome firearm and heard him say, “we fixing to kill you.” After jumping out of the window, the victim ran and hid behind a house across the street. While his truck was still parked outside Zachery’s mobile home when he ran past it, he was afraid he would be shot if he tried to enter and start it. The victim admitted that no gun was fired during or after his escape.

The victim immediately called 911, but had some initial difficulty reaching an operator. He informed the operator that someone had attempted to rob him and told her his location. She guided him to a road near some railroad tracks where he saw an approaching police car and stopped it. When the police officer took the victim back to Zachery’s house within 10 to 15 minutes of the 911 call logged at 2:05 a.m., the victim’s truck was gone and no one remained inside the house. The front door of the house was standing open when the police arrived.

The victim testified that when he first arrived at Zachery’s mobile home that evening, he did not see any other parked cars, including the vehicles normally driven by Zachery, Kiser, and Davis. The police subsequently recovered the victim’s truck three to five miles away from Zachery’s home, and they were unable to recover any evidence from the vehicle linking it to Kiser, Zachery or Davis.

During cross-examination, the victim admitted that he “removed himself” before anyone had an opportunity to prevent him from leaving the mobile home—no one told him that he could not leave. He also testified, however, that he could not leave the way he came in because Kiser was at the door. A police officer testified that there was no other exit from the mobile home.

2. Kiser contends that this evidence is insufficient to support his false imprisonment conviction, because no one prevented the victim from leaving through the window or told him that he could not leave. A person is guilty of false imprisonment “when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § 16-5-41 (a).

This statute on its face does not require that the imprisonment be for a specific length of time; all that is required is there be an arrest, confinement or detention of the person, without legal authority, which violated the person’s liberty (i.e., against his or her will). At the point when that occurs, the offense is complete notwithstanding that the victim may thereafter . . . effect an escape.

(Citations omitted.) Herrin v. State, 229 Ga. App. 260, 263 (3) (493 SE2d 634) (1997). In Alexander v. State, 279 Ga. 683 (620 SE2d 792) (2005), the Supreme Court of Georgia concluded that the false imprisonment statute is not unconstitutionally vague, noting:

The word “confine” has a commonly understood meaning which would place a person of common intelligence on notice of the prohibited acts. For example, Webster’s Ninth New Collegiate Dictionary defines “confine” as follows: “1. To hold within a location ... 2. To keep within limits.” In turn, Black’s Law Dictionary, Sixth Edition, defines the term confinement in a similar manner as: “shut in” or “imprisoned.”

Id. at 686 (3). And when interpreting a similar statute governing civil actions for false imprisonment, we have held that “[a] detention need not consist of physical restraint, but may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used____” Hampton v. Norred & Assoc., 216 Ga. App. 367, 368 (1) (454 SE2d 222) (1995).

In this case, the victim testified that he could not leave through the only door to the mobile home after Davis came from the rear with a pointed gun, because Kiser was guarding the door, pulled out a gun of his own, and threatened to kill him. We find this evidence sufficient to support Kiser’s false imprisonment conviction. See Barnett v. State, 244 Ga. App. 585, 588-589 (3) (536 SE2d 263) (2000) (sufficient evidence to support false imprisonment conviction even though victim “ ‘never expressed his will... as to where he wanted to go or not go’ ”); Wilson v. State, 304 Ga. App. 743, 747-748 (1) (d) (698 SE2d 6) (2010) (sufficient evidence supported false imprisonment conviction even though defendant only blocked the front door and left other avenues of escape).

We find no merit in Kiser’s argument that his acquittal for possession of a firearm during the commission of false imprisonment precludes the use of the gun evidence to support his false imprisonment conviction. It is well established that there is no prohibition against inconsistent verdicts in Georgia.

[A]ppellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity. Stated another way, it is imprudent and unworkable to allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.

(Citations and punctuation omitted.) Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008). This case does not fall within the narrow exception for cases in which the record affirmatively shows that the jury’s rationale was not the result of lenity, but instead legal error. See id. at 20-21 (2); Jackson v. State, 322 Ga. App. 196, 200-201 (3) (744 SE2d 380) (2013).

3. Kiser asserts that insufficient evidence supports his theft by taking conviction because the victim left the keys in the truck’s console, no eyewitness saw him or his co-defendants take the truck, no physical evidence linked him (or his co-defendants) to the truck after it was recovered by the police, and no evidence indicated whether one or more individuals took the truck. The State asserts that the following circumstantial evidence sufficiently supports Kiser’s conviction: the car was taken at a late hour when no other persons were around; none of the defendants had a vehicle parked in front of the home when the victim arrived; the police found no one in the home 10-15 minutes after the victim called 911; the front door to the home was left standing open; the defendants would need to make a quick getaway after unsuccessfully threatening the victim’s life; and the defendants had a motive and opportunity to take the victim’s truck.

The correct rule for determining the sufficiency of the evidence in convictions based entirely on circumstantial evidence is that questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law.

(Citation and punctuation omitted.) Johnson v. State, 288 Ga. 771, 772-773 (1) (707 SE2d 92) (2011). “Even when the circumstantial evidence creates a strong suspicion of guilt, ‘mere suspicion is insufficient to support a conviction.’ [Cit.]” Locklear v. State, 249 Ga. App. 104, 105 (1) (547 SE2d 764) (2001). In this case, no evidence suggests whether one or more individuals took the victim’s truck or that Kiser, as opposed to one of his co-defendants, did so. Additionally, other reasonable explanations for the disappearance of the victim’s truck exist, because the victim left the keys in open view on the console. We therefore conclude that the verdict of guilty is insupportable as a matter of law and reverse Kiser’s theft by taking conviction. Id. at 105-107 (1) (reversing theft by taking conviction based upon undisputed evidence showing that other people had access to money when it disappeared).

4. Kiser argues that the trial court erred by allowing the 911 dispatcher and the first responding officer to testify about the victim’s prior consistent statements and therefore improperly bolster the victim’s trial testimony. The record, however, shows that Kiser raised only a hearsay objection, which the trial court overruled because the victim testified and was available for cross-examination. Because Kiser failed to make an improper bolstering objection below, this ground of error was waived and we cannot consider it. See Colzie v. State, 289 Ga. 120, 122 (2) (710 SE2d 115) (2011); Moore v. State, 280 Ga. App. 894, 897 (4) (635 SE2d 253) (2006). “[W]here a party objects to evidence only on grounds of hearsay, an objection on the ground of improper bolstering has been waived.” (Citations and punctuation omitted.) Colzie, 289 Ga. at 122 (1).

Moreover, even if the proper objection had been asserted at trial and the issue preserved for our review, any error in the admission of the testimony at issue was harmless. A police detective testified at length, without objection, about the victim’s prior consistent statement about what transpired. Additionally, during cross-examination of the detective, Kiser’s attorney elicited testimony about the statements made by the victim at the station and to the first responding officer. In light of this unchallenged cumulative evidence, we find that it is highly probable that any error “did not contribute to the jury’s guilty verdict.” Cowart v. State, 294 Ga. 333, 341 (4) (b) (751 SE2d 399) (2013). See Arnold v. State, 305 Ga. App. 45, 50 (3) (699 SE2d 77) (2010) (finding no harm from admission of prior consistent statement where record contained other unchallenged testimony about content of victim’s prior statement).

5. In his remaining enumeration of error, Kiser contends that the trial court improperly considered a prior conviction during sentencing, because the State failed to provide the notice required by OCGA § 17-16-4 (a) (5).

OCGA § 17-10-2 (a) (1) provides that in a presentence hearing, “the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the accused, or the absence of any prior conviction and pleas.” While this Code section once provided that the State must give notice of its intent before using a prior conviction in aggravation of sentencing, “the notice requirement was deleted from the statute effective July 1, 2005.” McIntosh v. State, 287 Ga. App. 293, 295-296 (651 SE2d 207) (2007). Under the current statutory scheme, the State is not required to provide notice of its intent to use a prior conviction in aggravation of sentencing under OCGA § 17-16-4 (a) (5) unless written notice of a defendant’s election to participate in reciprocal discovery under OCGA § 17-16-2 (a) is provided to the State. See Miller v. State, 235 Ga. App. 724, 725 (510 SE2d 560) (1998).

The purpose of the notification requirement is to allow the defendant to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial. In other words, the defendant must be given an unmistakable advance warning that the prior convictions will be used against him at sentencing so that he will have enough time to rebut or explain any conviction record. We have held that the state’s notice of its intent to use prior convictions must be clear and not cloudy.

(Citations and punctuation omitted.) Moore v. State, 304 Ga. App. 198, 199 (695 SE2d 717) (2010). OCGA § 17-16-6 outlines the possible consequences resulting from the State’s failure to comply with the discovery provisions of OCGA § 17-16-1 et seq.

If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .

OCGA § 17-16-6. “[T]o obtain the exclusion of evidence for the State’s alleged discovery violation, [a defendant] must show both prejudice and bad faith.” (Citation and punctuation omitted.) Falay v. State, 320 Ga. App. 781, 785 (2) (740 SE2d 738) (2013).

In this case, the record shows that one of Kiser’s co-defendants provided the written notice required by OCGA § 17-16-2 (a), and that the State did not give notice of its intent to use prior convictions in aggravation of sentencing as required by OCGA § 17-16-4 (a) (5). At the beginning of the sentencing hearing, the State provided defense counsel with a summary showing Kiser’s prior criminal conviction. After Kiser’s counsel objected to the State’s use of a document summarizing his criminal history, the court ruled that it would “not take into consideration the criminal history of the defendants in this sentencing proceeding.”

It reversed course, however, after Kiser’s wife testified in the sentencing hearing that she had been married to Kiser for six years, that they had three sons between the ages of 11 and 19, and asked the court

to have leniency on her husband for me and my children, that he could be home with us, that we could grow together, that my children could have their father at home, and that’s it, I just ask you have mercy on us. . . . That’s all I could do is pray that God would see here today, that He will come into this place and allow every heart to be open that they would see and give mercy to him and have compassion on him and my family because I love him and I need him in my life. I need him home with me to help me raise my sons . . . it’s just me and my young boys . . . and I need my husband. I need my husband home with me, and so I’m just asking that y’all have lenience on him, leniency on me because if he go, I go. Thank you.

During cross-examination, the State sought to show Mrs. Kiser a certified copy of her husband’s prior criminal conviction for possession of cocaine. Kiser’s counsel objected, and the State responded that it was entitled to a thorough cross-examination and that the door was opened based upon Mrs. Kiser’s request for leniency. The trial court overruled the objection, reasoning that “the witness asked for leniency. One can only assume that the reason for the leniency is because of the character of the individual, and, therefore, the State’s delving into that is proper.” The court found it relevant that Mrs. Kiser asked for leniency for her husband, in addition to herself and her children. At the conclusion of the hearing, the trial court stated that it was imposing its sentence based upon “the complex, convoluted evidence of. . . more than two days of trial in this case, plus evidence received by the Court this morning in this hearing.”

On appeal, Kiser asserts that the trial court erred by allowing the admission of bad character evidence in the form of his prior conviction, because his wife did not testify about his good character when she asked for leniency. He requests that his sentence be vacated and the case remanded for resentencing with direction that the trial court resentence him with no consideration of his prior conviction. While we agree that Kiser’s sentence should be vacated because Mrs. Kiser’s request for leniency did not open the door to bad character evidence,* * we do not accept Kiser’s contention that the trial court should be instructed not to consider the prior conviction on remand.

In this case, based upon our review of the entire transcript of the sentencing hearing, it appears that the trial court did not apprehend the nature of the discretion afforded it by OCGA § 17-16-6 after the State’s failure to comply with OCGA § 17-16-4 (a) (5) was brought to its attention. The transcript shows that the trial court believed it had no discretion to consider the prior conviction and that this belief led to its initial ruling that it would not consider that conviction when sentencing Kiser. There was no argument in the hearing about options afforded to the trial court under OCGA § 17-16-6 or the State’s bad faith or prejudice specific to Kiser. Because it appears that the trial court initially excluded the prior conviction based upon a belief that it had no other option, we vacate Kiser’s sentence and remand this case to the trial court to consider its options under OCGA § 17-16-6 before resentencing Kiser. Cf. Holland v. State, 310 Ga. App. 623, 629 (5) (714 SE2d 126) (2011) (remanding case to trial court to exercise discretion in sentencing where it appeared from record that trial court may not have exercised its discretion).

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

Doyle, P. J., concurs. McFadden, J., concurs fully and specially.

Decided March 7, 2014

Reconsideration denied April 9, 2014.

Kevin C. Armstrong, for appellant.

Richard L. Perryman III, District Attorney, Robert A. Rogers, Assistant District Attorney, for appellee.

McFADDEN, Judge,

concurring fully and specially.

I concur fully. But my concurrence in Division 2, in which we find insufficient the circumstantial evidence of theft by taking, is dependent on an additional fact not set out explicitly in the majority opinion. Zachery’s home was not in an isolated area. Both the defendant and the state describe the area as a neighborhood.

       The jury acquitted Kiser of armed robbery, aggravated assault, conspiracy, and five counts of possession of a firearm during the commission of a felony. The jury reached the same verdict on all of the identical counts against Kiser’s two co-defendants, Donald Zachery and Jermaine Davis.

       The rule against mutually exclusive verdicts is not implicated when the jury returns a verdict of guilty and not guilty; it only applies to multiple guilty verdicts that cannot be logically reconciled. Watson v. State, 289 Ga. 39, 44 (11), n. 5 (709 SE2d 2) (2011).

       We express no opinion on whether good character evidence presented by a defendant in a sentencing hearing can open the door to admission of a prior conviction properly excluded based upon a showing of bad faith and prejudice under OCGA § 17-16-6. See West v. Waters, 272 Ga. 591, 594 (3) (533 SE2d 88) (2000) (overruling Court of Appeals’ decision because its “holding significantly undermines enforcement ofthe notice requirements of [former] OCGA § 17-10-2”). In this case, the defendant did not present good character evidence.

       At several points during argument on the admissibility of the prior conviction, the trial court asked “to see the authority” or “the specific rule” relied upon by Kiser’s counsel. Because the State did not provide notice of its intent to rely upon the prior conviction until the morning of the sentencing hearing, however, Kiser’s counsel was unable to cite the statute or provide a copy for the court’s review.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A2455.
    CHOI et al. v. IMMANUEL KOREAN UNITED METHODIST CHURCH.
    (755 SE2d 354)
   ANDREWS, Presiding Judge.

This case is before us on Woo-Baeg Choi and Shin-Aee Choi’s (the Chois) appeal from the trial court’s grant of Immanuel Korean United Methodist Church’s (the Church) motion to dismiss. The Chois sued the Church for the second time, claiming that it had been agreed that their $1,500,000 donation to the church, made in 2005, was for the construction of a new building, that the Church had not yet begun construction on a building, had no plans for doing so, and there was evidence that had come to light since the filing of the previous lawsuit showing that the Church was unable to build a new structure at any time in the foreseeable future, if ever. The trial court granted the motion to dismiss, finding that the claims were barred by res judicata and collateral estoppel. We disagree and reverse.

The record shows that the Chois gave two checks to the church in 2005, one for $1,000,000 and one for $500,000. The checks stated that the money was for a building construction fund, and the church pastor acknowledged that the checks were for construction of a new building. The first check was used to buy a $932,147.57 tract of land in 2006. The money from the second check is still on deposit and has not been used.

In 2010, the Chois filed the first lawsuit, alleging breach of fiduciary duty and requesting the imposition of a trust on the funds. The Church filed a motion for summary judgment which the court granted, holding that there had been no time limit set for the use of the money; the claims were not ripe because there had been no breach of fiduciary duty at that time; and therefore it was without authority to impose an implied trust. The Chois appealed the ruling, and this Court affirmed under Rule 36.

Approximately a year and a half after the grant of summary judgment on their first complaint, the Chois filed another complaint against the Church. This second complaint asked for a declaratory judgment that an implied charitable trust was created when the $1,500,000 was given to the church; that the church could not fulfill the designated special purpose in a timely manner; and, asking that the money be transferred to a different church that will fulfill the intended purpose of the gift. The complaint also requested injunctive relief to preclude the church from using the funds for any other purpose.

The Church filed a motion to dismiss, arguing that these claims were barred by res judicata and collateral estoppel. The trial court granted the motion, holding that the Chois did not allege any new facts to show that the purpose of the gift had failed or could not be accomplished. Rather they alleged that the Church is unable to complete the purpose in a timely manner. The trial court stated that it had already held that the funds are being used for the special purpose and there was no time restraint placed upon the gift. Accordingly, the trial court dismissed both counts of the complaint as barred by res judicata and collateral estoppel.

A motion to dismiss 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. All facts in the pleadings are to be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible.

Clarke v. Freeman, 302 Ga. App. 831, 832 (692 SE2d 80) (2010). This Court’s review of a trial court’s ruling on a motion to dismiss is de novo. Id.

Decided March 25, 2014

Reconsideration denied April 9, 2014

Arnall, Golden & Gregory, Henry R. Chalmers, Andrew B. Flake, Rebecca I. Lunceford, for appellants.

On appeal, the Chois contend that they have brought this cause of action under OCGA § 44-5-87, not under the Georgia Trust Act, OCGA § 53-12-2 et seq., as they did in the first complaint. OCGA § 44-5-87 provides that: “[i]f a gift is made for a specific purpose which is either expressed or is secretly understood and the purpose is illegal or from some other cause fails or cannot be accomplished, the donee shall hold the object of the gift as trustee for the donor or his next of kin.” In this case, the Chois are alleging that there is evidence that the specific purpose of the gift cannot be accomplished and that these facts have come to light since the filing of their initial complaint. Specifically, the Chois allege that the church’s “financial situation has deteriorated materially.” They also claim that the Church’s membership and income “have dropped precipitously since the summer of 2011, making it not reasonably possible ... to [build] a new facility . . . within a reasonable period of time, if at all.”

The general rule is

that a former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a reexamination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants.

Durham v. Crawford, 196 Ga. 381, 387 (26 SE2d 778) (1943). Here, the impossibility of ever fulfilling the purpose of the donation was not considered in the first lawsuit in the context of OCGA § 44-5-87, and the trial court erred in granting the motion to dismiss on grounds of res judicata and collateral estoppel.

In light of the above, the order dismissing the complaint is reversed, and the case is remanded to the trial court to determine whether the allegations in the complaint are sufficient to survive a motion to dismiss.

Judgment reversed and case remanded.

Dillard and McMillian, JJ., concur.

Cauthorn Nohr & Owen, J. Wickliffe Cauthorn, Thomas E. Cauthorn III, for appellee.

       [Wjhere there is identity of parties and subject matter, res judicata bars relitigation of matters that were or could have been litigated in an earlier action. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action.

        Burnett v. Slatter, 286 Ga. 169, 172 (686 SE2d 126) (2009).


author: Miller, Judge.

text:
    A13A1659.
    RIGBY et al. v. FLUE-CURED TOBACCO COOPERATIVE STABILIZATION CORPORATION.
    (755 SE2d 915)
   Miller, Judge.

Julian A. Rigby, Terry Altman, Elton Carter, Byron Carter, David H. Lee, and Bryan Aldridge (collectively, “the Plaintiffs”) are tobacco farmers who were members of and sold their tobacco to Flue-Cured Tobacco Cooperative Stabilization Corporation, now known as the United States Tobacco Cooperative, Inc. (the “Tobacco Cooperative”). The Plaintiffs sued the Tobacco Cooperative for breach of contract, an accounting, and other claims relating to allegations that they were wrongfully stripped of their membership in the cooperative, were entitled to an accounting of the Tobacco Cooperative’s capital reserve, stock certificates, and dividends, and were denied the opportunity to sell their tobacco to marketing centers. The Plaintiffs appeal from the trial court’s rulings dismissing some of their claims and granting summary judgment on their remaining claims. The Plaintiffs contend that the trial court erred in granting summary judgment to the Tobacco Cooperative on: their claim to be reinstated as members of the Tobacco Cooperative; their demand to be issued shares of the Tobacco Cooperative common stock; their claim for an accounting of the Tobacco Cooperative’s capital account; their breach of contract claim concerning the Tobacco Cooperative’s failure to provide them an opportunity to sell tobacco through its marketing facilities; and their claims relating to the Tobacco Cooperative’s failure to pay them a pro-rata share of profits earned between the years 1967 and 1973. The Plaintiffs also contend that the trial court erred in dismissing their claim for breach of fiduciary duty and in granting summary judgment to the Tobacco Cooperative on their claim for attorney fees. For the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280, 281 (682 SE2d 369) (2009).

So viewed, the evidence shows that the Tobacco Cooperative, a nonprofit agricultural cooperative association, was organized in 1946 under North Carolina law for the purpose of engaging in business activities related to the marketing, selling, and distribution of flue-cured tobacco. Article VI of the Tobacco Cooperative’s Articles of Incorporation (“Article VI”) provides that common stock in the Tobacco Cooperative “may be purchased, owned or held by producers who shall patronize the corporation in accordance with uniform terms and conditions prescribed thereby and only such persons shall be regarded as eligible members of the corporation.” Article VI also provides that no dividends shall be paid upon the common stock.

Among the Tobacco Cooperative’s activities, it administered the federal minimum price support program offered to flue-cured tobacco farmers within portions of the Southeastern United States, including Georgia. The Tobacco Cooperative worked through the Commodity Credit Corporation (“CCC”) and the United States Department of Agriculture (“USDA”) to administer the federal tobacco price support program within the framework first created by the Agricultural Adjustment Act of 1938, which established a program of federal tobacco quotas and price supports aimed at stabilizing and increasing the prices paid to America’s tobacco growers. 7 USC § 1281 et seq.

In brief, the USDA annually set the minimum price for flue-cured tobacco, and the payment for tobacco was funded through loans that the Tobacco Cooperative received from the CCC. The Tobacco Cooperative used the loans to purchase eligible tobacco that served as collateral for the CCC loans. The Tobacco Cooperative then processed and stored the tobacco, and later attempted to resell it at a price sufficient to repay or reduce the CCC loans. When the Tobacco Cooperative realized more from the sale of a particular tobacco crop than necessary to repay the CCC loans and recover its costs, the tobacco growers who produced that particular crop received a portion of the surplus, or net gain. When the proceeds from the sale of a particular crop were insufficient to repay the CCC loans, however, the losses were absorbed by the federal government.

The Plaintiffs, all flue-cured tobacco farmers, applied for and received the Tobacco Cooperative stock in exchange for a $5 capital contribution. In particular, the Tobacco Cooperative records show that Rigby applied for and received a share of common stock in 1982; Altman in 1979; Elton Carter in 1955; Byron Carter in 1993; Lee in 1970; and Aldridge in 1993. Rigby and Byron Carter testified, however, that they did not actually receive their certificates reflecting the purchase of common stock.

The Plaintiffs sold tobacco to the Tobacco Cooperative from time to time as part of the minimum federal price support program. Specifically, between 1967 and 1973, Rigby, Lee, and Elton Carter sold tobacco to the Tobacco Cooperative as a part of the federal minimum price support program. During these years, and for only these years, the Tobacco Cooperative realized a net gain from the tobacco it sold. The Tobacco Cooperative distributed a portion of the net gain to farmers, including $291.15 to Elton Carter and $6.40 to Lee, and issued certificates of interest to the farmers for the undistributed portion of the net gain, which was valued at approximately $26.8 million. In 1975, the Tobacco Cooperative’s board of directors set aside the undistributed net gain into its capital reserve, and it notified members of the decision through a newsletter. As provided by Article XI of the Tobacco Cooperative’s Articles of Incorporation, as amended, (“Article XI”) the certificates of interest “carry no rights of dividend, interest or other income or appreciation,” and the certificates are redeemable “only upon such terms and at such times as may be determined from time to time by the Board of Directors.” Furthermore, Article XI provided that the “death, withdrawal or expulsion of a member shall not give rise to any right to receive any payment from the capital reserve [.]”

The evidence shows that most of the Plaintiffs stopped patronizing the Tobacco Cooperative by 2001. Altman deposed that he stopped selling tobacco to the Tobacco Cooperative sometime in 2003 or 2004.

In 2004, the federal government ended the minimum price support program with passage of the Fair and Equitable Tobacco Reform Act of 2004 (“FETRA”). Around the same time, the Tobacco Cooperative bought a processing and manufacturing facility and entered into an agreement to supply a third party who would distribute cigarettes under a brand to be developed by the Tobacco Cooperative. In December 2004, the Tobacco Cooperative sent a letter to flue-cured tobacco farmers informing them that it would be manufacturing cigarettes and offering farmers the opportunity to enter into an exclusive marketing agreement with the Tobacco Cooperative. The letter instructed farmers that only persons or entities that signed the exclusive marketing agreement would be able to retain membership in the Tobacco Cooperative for 2005. The letter also instructed that any farmer who does not sign the agreement may elect to have his common stock redeemed at par value, or $5. Additionally, citing to its Article XI, the Tobacco Cooperative informed farmers that, if they chose to withdraw their membership by not signing the agreement, they were not entitled to a share of capital reserves by virtue of such withdrawal. The Tobacco Cooperative also informed farmers, however, that if they decided not to enter into an exclusive agreement for 2005, they would not be precluded from entering into future marketing agreements, provided the Tobacco Cooperative offered such agreements. Specifically, the Tobacco Cooperative told farmers that

if you elect not to retain your membership for 2005, you would not be precluded from becoming a member in a subsequent year. As long as this proposed program continues, [the Tobacco Cooperative] membership will be open to all former tobacco farmers who are willing to sign an exclusive agreement with [the Tobacco Cooperative] and abide by the uniform terms and conditions set forth in the marketing agreement.

In 2007, the Plaintiffs filed their initial complaint against the Tobacco Cooperative, alleging that they were entitled to: an accounting of the Tobacco Cooperative’s capital account and contributions made by the Plaintiffs (Count 1); a distribution of reserved capital (Count 2); and specific performance to reinstate them as members of the cooperative by issuing their respective stock certificates (Count 3). The Plaintiffs also raised claims of breach of contract for denying the Plaintiffs the opportunity to enter into exclusive marketing agreements with the Tobacco Cooperative (Count 4); breach of fiduciary duty against the Tobacco Cooperative’s director (Count 5); and for attorney fees (Count 6).

Count 5 was subsequently dismissed pursuant to the parties’ joint stipulation. Thereafter, in an order dated June 15,2012, the trial court granted summary judgment to the Tobacco Cooperative on Counts 2, 4, 5, and 6. The Plaintiffs then amended their complaint, as revised, to add three additional counts: Count 7 for breach of contract for failing to pay dividends from 1967 through 1973; Count 8 for breach of a loan warranty to distribute net gains from the sale of tobacco; and Count 9 for breach of fiduciary duty. The amended complaint also sought a declaratory judgment on the issue of the Plaintiffs’ membership status in the Tobacco Cooperative (Count 1).

In an order dated October 18, 2012, the trial court dismissed Count 1 to the extent it sought a declaration that the Tobacco Cooperative’s corporate reserves belonged to the Plaintiffs or that such reserves should be paid to the Plaintiffs. The trial court also dismissed Count 9 on the grounds that the Tobacco Cooperative did not owe a fiduciary duty to its shareholders or members. The trial court subsequently granted summary judgment to the Tobacco Cooperative on the remaining claims and denied the Plaintiffs’ motion for partial summary judgment. In granting summary judgment to the Tobacco Cooperative, the trial court found that: the court was not the proper forum to assert an accounting claim (Count 1); the Tobacco Cooperative was entitled to summary judgment on the Plaintiffs’ prayer for declaratory judgment (Count 1) because the Plaintiffs were no longer members of the Tobacco Cooperative due to their own decision not to patronize the cooperative; the Plaintiffs were issued a share of stock and, therefore, the Tobacco Cooperative was entitled to summary judgment on the claim for specific performance (Count 3); and the Plaintiffs’ claims for breach of contract, conversion, and money had and received for failing to pay profits for the years 1967 through 1973 (Count 7) were time-barred. This appeal ensued.

1. The Plaintiffs contend that the trial court erred in granting summary judgment on their claim to be recognized as members of the Tobacco Cooperative under Count 1, because they claimed that the cooperative’s bylaws provide that revocation of membership can only be authorized following a hearing, which had not occurred in this case. The Plaintiffs’ argument has no merit.

There is no dispute that in 2003, the Tobacco Cooperative purged inactive members from its membership rolls, and that it did so without a hearing. In support of their argument that they were entitled to a hearing before being purged from the membership roll, the Plaintiffs rely upon Article X of the Tobacco Cooperative’s bylaws, which is virtually identical to Article VI of the cooperative’s Articles of Incorporation. Those provisions provided that common stock

may be purchased, owned or held by producers who shall patronize the corporation in accordance with uniform terms and conditions prescribed thereby and only such persons shall be regarded as eligible members of the corporation. In the event the board of directors of the corporation shall find following a hearing that any of the common stock has come into the hands of any person who is not an eligible member, or that the holder thereof has ceased to be an eligible member, such person shall have no rights or privileges on account of such stock or vote or voice in the management or affairs of the corporation . . . and the corporation shall have the right (a) to purchase such stock at its book or par value, whichever is less, as determined by the board of directors..., and on the failure of the holder to deliver the certificate or certificates evidencing such stock, the corporation may cancel the same on its books, or (b) to require the transfer of any stock at such book or par value to any person eligible to hold the same and on the failure of the holder to deliver the certificate or certificates evidencing such stock, the corporation may cancel the same on its books and issue a new certificate or certificates in lieu thereof to any such person.

(Emphasis supplied.)

Contrary to the Plaintiffs’ reading of these provisions, the plain language provides that the Tobacco Cooperative is only required to hold a hearing for the purposes of determining whether common stock is held by an eligible member so that, in the event the stock is not, the board of directors has the right to purchase or transfer the stock held by an ineligible member. By the unambiguous terms of Article VI of the Articles of Incorporation and Article X of the Bylaws, the Plaintiffs were not to be regarded as eligible members of the Tobacco Cooperative because they did not patronize the corporation. There is no evidence that the Tobacco Cooperative has attempted to purchase or transfer any stock belonging to these inactive members. Therefore, the Tobacco Cooperative was not required to hold a hearing, and the Plaintiffs’ claim on this ground fails.

2. The Plaintiffs also contend that the trial court erred in granting summary judgment on their claim for specific performance because the Tobacco Cooperative’s bylaws require that each member be issued a stock certificate, they presented evidence that they did not receive the common stock certificate for which they paid, and the issuance of a stock certificate would reflect their membership status. We disagree.

As a preliminary matter, the Plaintiffs do not challenge the Tobacco Cooperative’s records showing that they applied and paid $5 for a share of common stock. Instead, Rigby, Byron Carter, Elton Carter, and Lee claim that they did not actually receive the stock. Upon examining their testimony, however, Rigby and Byron Carter testified only that they did not receive the stock certificates. Elton Carter, through his wife Donna Carter, testified that he received the stock certificates. Lee similarly testified that stock certificates were issued, although he did not know where his were located.

Although Rigby and Byron Carter presented evidence that they did not receive a stock certificate, they presented no evidence to refute the Tobacco Cooperative’s evidence that they were actually issued common stock. Moreover, the Plaintiffs point to no requirement that the Tobacco Cooperative had to actually issue stock certificates. “[0]ne who has subscribed and paid for corporate stock is entitled to all the rights and responsibilities of ownership, whether the stock certificates have been issued to him or not.” Haas v. Koskey, 138 Ga. App. 448, 453 (2) (226 SE2d 279) (1976). See also First Jewelers v. Rosen, 119 Ga. App. 355, 356 (166 SE2d 919) (1969). Therefore, the trial court correctly held that there were no issues of fact regarding whether the Tobacco Cooperative issued stock to the Plaintiffs, and it properly granted summary judgment on this claim.

Even if the issuance of stock certificates was a question of fact, we may nevertheless affirm the trial court’s grant of summary judgment if it is right for any reason, whether stated or unstated, so long as the legal basis was fairly presented in the court below. See Ga.-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013); Bailey v. Hall, 267 Ga. App. 222, 223, n. 1 (599 SE2d 226) (2004).

The Tobacco Cooperative argued before the trial court that the Plaintiffs’ specific performance claim was time barred under the statute of limitation. While the statute of limitation for simple contracts is six years, see OCGA § 9-3-24, the statute of limitation for equity suits, such as a claim for specific performance, is seven years. See Knight v. Dept. of Transp., 239 Ga. 368, 370 (3) (236 SE2d 826) (1977); Ellis v. Stanford, 256 Ga. App. 294, 297 (4) (568 SE2d 157) (2002) (a claim for specific performance lies in equity). In this case, Rigby testified that he last applied for common stock in the 1990s. Byron Carter applied for common stock in 1993. Since the instant lawsuit was filed in 2007, well after the applicable limitation period ran, the claim for specific performance is barred. See Knight, supra, 239 Ga. at 370 (3) (equitable petition for cancellation of the deed brought more than seven years after execution of deed was barred by statute of limitation). Cf. Contract Furniture Refinishing & Maintenance Corp. of Ga. v. Remanufacturing & Design Group, 317 Ga. App. 47, 51 (730 SE2d 708) (2012) (providing that breach of contract claim was barred by six-year statute of limitation where cause of action for providing proof of ownership in company accrued either at time defendant first agreed to give plaintiff a share of company or refused to give written document reflecting proof of ownership).

3. The Plaintiffs also contend that the trial court erred in concluding that it was not the proper forum for a claim for accounting. Specifically, the Plaintiffs argue that the Tobacco Cooperative’s bylaws authorize members to inspect the corporation’s records. The Plaintiff’s claims are without merit.

Under OCGA § 14-3-1604 (a),

[i]f a corporation does not allow a member who complies with subsection (b) of Code Section 14-3-1602[] to inspect and copy any records required by that subsection to be available for inspection, the superior court may summarily order inspection and copying of the records demanded at the corporation’s expense upon application of the member.

A “corporation” is defined as “a [nonprofit] corporation, other than a foreign corporation, incorporated under or subject to the provisions of this chapter.” OCGA § 14-3-140 (6); see also OCGA § 14-2-140 (4) (similarly providing that a for-profit corporation does not include a foreign corporation). It is undisputed that the Tobacco Cooperative is a foreign corporation organized under North Carolina law, and therefore the trial court lacked the authority to order an inspection of the Tobacco Cooperative’s records.

Moreover, an equitable claim for accounting will not lie where an adequate remedy is available at law. See Faircloth v. A.L. Williams & Assoc., Inc., 219 Ga. App. 560, 560 (1) (465 SE2d 722) (1995). North Carolina provides a statutory scheme similar to Georgia’s that allows members to obtain a court-ordered inspection of a nonprofit corporation’s records if the corporation does not accommodate a member’s request. See NCGSA § 55A-16-04 (a). Consequently, the trial court correctly held that the accounting claim against the Tobacco Cooperative could not be asserted in Georgia.

4. Plaintiffs Rigby and Aldridge contend that the trial court erred in granting summary judgment on their breach of contract claim based upon the allegation that the Tobacco Cooperative denied them the opportunity to sell tobacco despite their election to enter into an exclusive agreement. We disagree.

As noted by the trial court, there is no evidence that Rigby and Aldridge entered into an exclusive agreement with the Tobacco Cooperative. Notably, Rigby testified that he responded to the Tobacco Cooperative’s December 2004 letter regarding the ability to enter into an exclusive marketing agreement by completing a form letter expressing his interest in entering into such an agreement. Rigby did not actually sign the exclusive agreement, however, but claims that the Tobacco Cooperative refused to enter into a contract with him because he had a receiving station for a major tobacco company. Aldridge testified that when the federal price support program ended in 2004, he did not consider selling to the Tobacco Cooperative because he thought it was a “thing of the past.” Aldridge further stated that it was not until 2008 or 2009 that he completed an application to enter into an exclusive agreement with the Tobacco Cooperative, but nothing ever materialized.

While Rigby and Aldridge argue that the Tobacco Cooperative’s December 2004 letter constituted an offer and that they accepted the offer, the letter provides that farmers are required to sign the exclusive agreement. An “offer must be accepted in the manner specified by it; and if it calls for a promise, then a promise must be made; or if it calls for an act, it can be accepted only by the doing of the act.” (Citation and punctuation omitted.) Moreno v. Strickland, 255 Ga. App. 850, 853 (1) (567 SE2d 90) (2002); Carterosa, Ltd. v. General Star Indem. Co., 227 Ga. App. 246, 248 (1) (489 SE2d 83) (1997) (“the offeror may specify a method through which the offer must be accepted”). Although the Tobacco Cooperative’s December 2004 letter may have contained some terms to be included in a final agreement, there was no binding contract until the exclusive agreement was signed. Since neither Rigby nor Aldridge signed the exclusive agreement, the trial court did not err in granting summary judgment to the Tobacco Cooperative on this claim. See Overton Apparel v. Russell Corp., 264 Ga. App. 306, 310 (2) (590 SE2d 260) (2003) (although letter of intent contained some terms to be included in final agreement, it was only an agreement to agree, which was not enforceable).

5. The Plaintiffs also contend that the trial court erred in concluding that the applicable statutes of limitation barred their claims for breach of contract, conversion, and money had and received arising from the Tobacco Cooperative’s failure to pay all amounts owed to them for the sale of tobacco from 1967 to 1973 (Count 7). We disagree.

Since Rigby, Elton Carter, and Lee were the only plaintiffs who sold tobacco to the Tobacco Cooperative from 1967 to 1973, these claims apply only to these plaintiffs.

(a) Breach of Contract

Plaintiffs Rigby, Elton Carter, and Lee argue that the Tobacco Cooperative was required to pay them a pro-rata share of the net gains realized for crop years 1967 to 1973. These plaintiffs cite to an “agreement and receipt” received upon selling tobacco to the Tobacco Cooperative that provided that

in addition to the amount paid to the grower upon delivery of tobacco, [the Tobacco Cooperative] will distribute to him his pro-rata share of any net gains remaining after payment of operating and maintenance costs and expenses and a reasonable deduction for reserves as determined by the Board of Directors.

(Emphasis supplied.)

In this case, it is undisputed that the Tobacco Cooperative only realized net gains for crop years 1967 through 1973. It is further undisputed that the Tobacco Cooperative paid farmers a portion of the net gains for those years and, in 1975, set aside the remainder into a capital reserve. Contrary to the Plaintiffs’ arguments, “the statute of limitation runs from the time the contract is broken rather than from the time the actual damage results or is ascertained.” (Footnote omitted.) Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 385 (1) (649 SE2d 779) (2007).

Based upon the unambiguous language in the agreement as set forth above, there were no remaining net gains after the Tobacco Cooperative placed the undistributed net gains from 1967 to 1973 into a capital reserve. The farmers’ claims that they were entitled to an additional pro-rata share of the undistributed net gains accrued in 1975 when the Tobacco Cooperative placed any remaining money belonging to the farmers into a capital reserve and issued certificates of interest that created a separate agreement for the distribution of funds. As a result, the six-year statute of limitation has long since expired, and the plaintiffs’ breach of contract claim is time-barred.

(b) Conversion

OCGA § 9-3-32 provides that “[a]ctions for the recovery of personal property, or for damages for the conversion or destruction of the same, shall be brought within four years after the right of action accrues.” A right of action for wrongful conversion accrues on the date of the conversion. See Logan v. Tucker, 224 Ga. App. 404, 406 (2) (480 SE2d 860) (1997). Here, any conversion of a farmer’s pro-rata share of net gains for crop years 1967 through 1973 occurred in 1975, when the Tobacco Cooperative set aside the undistributed net gain into its capital reserve. Consequently, the conversion claim was also time-barred.

(c) Claim for “Money Had and Received”

Rigby, Elton Carter, and Lee also argue that their claim was essentially one for “money had and received.” These plaintiffs further argue that the four-year statute of limitation applicable to such a claim did not commence until a demand for money should have been made, which the plaintiffs assert was 2004 when the Tobacco Cooperative was forced to reinvent itself following the termination of the federal price support program.

A cause of action for money had and received is appropriate “where one wrongfully receives and retains the money of another.” J.C. Penney Co. v. West, 140 Ga. App. 110, 112 (2) (230 SE2d 66) (1976). Contrary to the Plaintiffs’ arguments, the four-year statute of limitation for a money had and received claim began to run on the date the claim could first be successfully maintained. See Macomber v. First Union Nat. Bank of Ga., 212 Ga. App. 57, 58 (1), 59 (2) (441 SE2d 276) (1994). As demonstrated above, the Tobacco Cooperative placed the undistributed net gains into a capital reserve in 1975 and, therefore, it has had the unpaid portion of the farmers’ pro-rata shares of the net gains since that time. The Plaintiffs could have maintained a cause of action starting in 1975. Therefore, their 2007 claim for money had and received was brought outside the statute of limitation.

6. The Plaintiffs next contend that the trial court erred in dismissing their claim for breach of fiduciary duty (Count 9) on the grounds that a corporation owes no fiduciary duty to its members. We agree.

To properly analyze the Plaintiffs’ claim, we must apply the lex loci delicti rule, which provides that “a tort action is governed by the substantive law of the state where the tort was committed.” Dowis v. Mud Slingers, 279 Ga. 808, 809, 816 (621 SE2d 413) (2005). The Plaintiffs alleged that the Tobacco Cooperative breached its fiduciary duty by, among other things, revoking their membership, withholding distributions, preventing them from inspecting corporate records, and failing to provide them with contracts. Therefore, if a breach of fiduciary duty was committed, it was committed in North Carolina.

“For a breach of fiduciary duty to exist, there must first be a fiduciary relationship between the parties.” (Citations omitted.) Dalton v. Camp, 353 N.C. 647, 651 (548 SE2d 704) (2001). “Generally, the existence or nonexistence of a fiduciary duty is a question of fact for the jury.” (Citation and punctuation omitted.) Tin Originals v. Colonial Tin Works, 98 N.C. App. 663, 665 (391 SE2d 831) (1990).

“Under North Carolina law, directors of a corporation generally owe a fiduciary duty to the corporation, and where it is alleged that directors have breached this duty, the action is properly maintained by the corporation rather than any individual creditor or stockholder.” Keener Lumber Co. v. Perry, 149 N.C. App. 19, 26 (I) (560 SE2d 817) (2002). Thus, the directors of a corporation owe a fiduciary duty to the company, and not to individual members. See Kaplan v. O.K. Technologies, 196 N.C. App. 469, 474 (II) (A) (i) (675 SE2d 133) (2009). Notwithstanding these general rules, North Carolina law has broadly defined a fiduciary relationship in order to allow imposition of fiduciary duties where justified based on the circumstances. See Austin Maintenance & Constr. v. Crowder Constr. Co., 742 SE2d 535, 541 (II) (B) (N.C. Ct. App. 2012).

The Tobacco Cooperative cites this Court’s decision in ULQ, LLC v. Meder, 293 Ga. App. 176, 180-181 (2) (666 SE2d 713) (2008), which held that, under Georgia law, a corporation does not have a fiduciary relationship with stockholders. While the reasoning of Meder is very persuasive, we decline to extend it to North Carolina law in light of the North Carolina Supreme Court’s opinion in HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 588-590 (II) (403 SE2d 483) (1991), which affirmed a jury’s determination that an incorporated North Carolina agricultural cooperative owed a fiduciary duty to its members based on the circumstances of the case. While the Tobacco Cooperative argues that those circumstances are not present in this case, we note that, similar to the circumstances here, HAJMM involved certificates in a revolving fund that arguably gave members an equity interest in the corporation and, as a result, led to the creation of a fiduciary relationship. Id. at 590 (II). As a result, we cannot conclude that some of the Plaintiffs could not establish a fiduciary relationship in this case. Accordingly, the trial court erred in determining that the Tobacco Cooperative owed no fiduciary duty to the Plaintiffs.

The Tobacco Cooperative nevertheless submits that we should affirm the trial court’s judgment because “many, if not all,” of the Plaintiffs’ breach of fiduciary duty claims are barred by the statute of limitation. The Tobacco Cooperative’s statement reveals that there are questions of fact remaining as to whether these claims would be time-barred. Moreover, the Plaintiffs’ breach of fiduciary claim was based on several grounds, including some that occurred during discovery after the filing of the original complaint. Therefore, in the exercise of our discretion, we decline to reach the merits of the Tobacco Cooperative’s statute-of-limitation defense and elect to return the case to the trial court for consideration of the issue. See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002) (holding that this Court has the discretion to affirm under the “right for any reason” rule or remand for the trial court to consider an issue not addressed below).

7. The Plaintiffs also contend that the trial court erred in granting summary judgment on its claim for attorney fees and expenses of litigation because the Tobacco Cooperative acted in bad faith, was stubbornly litigious, and caused them unnecessary trouble and expense. We disagree.

OCGA § 13-6-llauthorizesajurytoawardplaintiffstheexpenses of litigation “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff [s] unnecessary trouble and expense.” Generally, it is for the jury to resolve these questions. See Steel Magnolias Realty v. Bleakley, 276 Ga. App. 155, 156 (1) (622 SE2d 481) (2005). However, if there is no evidence of bad faith or stubborn litigiousness, a trial court should grant a defendant’s motion for summary judgment on a claim for attorney fees. See Garrett v. Women’s Health Care of Gwinnett, P.C., 243 Ga. App. 53, 55 (1) (532 SE2d 164) (2000).

Decided March 28, 2014

Reconsideration denied April 10, 2014

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellants.

Edenfield, Cox, Bruce & Classens, V. Sharon Edenfield, Gerald M. Edenfield, for appellee.

In this case, the Plaintiffs asked for attorney fees in Count 6 for having to file suit to enforce their contractual rights of membership and to enforce other rights as set out by the Tobacco Cooperative’s bylaws and purchase agreements. The Plaintiffs also asked for attorney fees as a part of their claim for breach of fiduciary duties as specified in Count 9.

With respect to Count 6, which sought attorney fees for enforcing contract rights, we have upheld the grant of summary judgment in favor of the Tobacco Cooperative on these contractual claims. Consequently, the Plaintiffs’ claim for attorney fees in Count 6 fails as a matter of law. See United Companies Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996); Monterrey Mexican Restaurant of Wise, Inc. v. Leon, 282 Ga. App. 439, 453 (6) (d) (638 SE2d 879) (2006) (attorney fees under OCGA § 13-6-11 can only be awarded on the claims on which the plaintiff prevailed). As to attorney fees for Count 9, we have held that a jury question remains as to this claim, and consequently, the Plaintiffs might be entitled to attorney fees with respect to their breach of fiduciary duty claim.

In sum, we affirm the trial court’s ruling on all of the Plaintiffs’ claims, with the exception of its ruling on the breach of fiduciary claim and any attendant attorney fees as set out in Count 9.

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. Ray, J., concurs fully in Divisions 1, 2, 3, 4, and 6, and concurs dubitante in judgment only in Divisions 5 and 7.

       Wayne Lott was originally among the plaintiffs who brought suit, but the trial court dismissed his claims without prejudice pursuant to his motion.

       In 1982, Congress significantly amended the price support program to relieve taxpayers of the cost of the price support program by limiting federal tobacco expenditures and requiring any net gains realized by tobacco cooperatives to be retained by the CCC in order to offset any losses incurred on tobacco loans. See Leaf Tobacco Exporters Assn. v. Block, 749 F2d 1106, 1108-1110 (I)-(II) (4th Cir. 1984) (describing the price support program); Strickland v. Flue-Cured Tobacco Cooperative Stabilization Corp., 643 FSupp. 310, 313 (D.S.C. 1986) (same).

       The trial court also dismissed Rigby’s amended Counts 1 and 2, but he does not challenge the dismissal of these amended counts on appeal.

       The trial court also granted summary judgment to the Tobacco Cooperative on Count 8 — breach of loan warranty — and the Plaintiffs do not challenge the grant of summary judgment as to this count.

       Although the Tobacco Cooperative was incorporated in North Carolina, “the general rule in Georgia is that statutes of limitation are procedural in nature and are therefore governed by the law of the forum state.... The Supreme Court of Georgia has held that a foreign state’s law cannot extend the Georgia limitation period.” (Citations and punctuation omitted.) Butts v. Thomas, 300 Ga. App. 639, 640 (686 SE2d 262) (2009).

       OCGA § 14-2-1602 (b) provides that the member is entitled to inspect the corporation’s records if the member gives a written notice or written demand at least five business days before the date on which the member wishes to inspect the records.

       It would appear that the Plaintiffs’ claims are moot given that the trial court did order the Tobacco Cooperative to allow the Plaintiffs to inspect the corporate records, and the Plaintiffs have received voluminous corporate records regarding their accounts during discovery in this case.

       Without legal or factual support, Rigby, Elton Carter, and Lee argue that the statute of limitation period did not commence until the end of the federal price support program in 2004. As discussed above, in 1982, the federal government amended the price support program to no longer allow tobacco cooperatives to retain net gains and, instead, those net gains were to be retained by the CCC. If there were any net gains remaining as of 1982, which there were none as discussed above, then the Plaintiffs’ right to these net gains would have been in jeopardy no later than 1982. Consequently, to the extent the Plaintiffs rely upon any changes to the price support program, the statute of limitation on their claims has long since passed.

       Although the Tobacco Cooperative argues that the Plaintiffs cannot raise this claim for the first time on appeal, the record shows that the Plaintiffs raised this claim below.

       We note that at oral argument, the Tobacco Cooperative confirmed that, in the future, the farmers holding certificates of interest might receive a pro-rata share of the undistributed portion of the net gains from 1967 to 1973. Such farmers cannot compel the Tobacco Cooperative to issue a distribution, however, because Article XI provides that the certificates of interest are redeemable “only upon such terms and at such times as may be determined from time to time by the Board of Directors.”


author: Miller, Judge. Ray, Judge,

text:
    A13A1687.
    THE STATE v. SAWYER.
    (755 SE2d 905)
   Miller, Judge.

Following a jury trial, Quentin A. Sawyer was found guilty of involuntary manslaughter as a lesser included offense of felony murder (OCGA § 16-5-3), aggravated assault (OCGA § 16-5-21 (a)), and possession of a firearm during the commission of a felony — aggravated assault (OCGA § 16-11-106 (b) (l)). Following a hearing on Sawyer’s motion for new trial, the trial court set aside his aggravated assault conviction, finding that it was mutually exclusive with the offense of involuntary manslaughter. The State appeals, contending that the trial court erred in setting aside the aggravated assault verdict. For the reasons that follow, we reverse.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Sawyer was a student at Chattahoochee County High School. On January 12, 2009, Sawyer, his cousin and a third student were riding home from school in a fourth student’s car. On the way, the driver stopped to speak to the victim and agreed to give the victim a ride to the driver’s uncle’s house.

The victim initially got into the back seat of the car with Sawyer, but moved to the front passenger seat after the driver dropped one of the students off at his destination. Sawyer then pulled out a gun, played with it, pointed it at the victim’s head and asked the victim what he had in his pocket. The victim touched the front of the gun and told Sawyer that he would take Sawyer’s money. Sawyer and the victim then went “back and forth picking at each other[.]”

Less than a minute later, the driver stopped the car at his uncle’s house and Sawyer shot the victim in the head. Sawyer then got out of the car and hid the gun in some bushes before returning to help the driver pull the victim out of the car and try to help stop the bleeding.

Meanwhile, the driver’s cousin came out of the uncle’s house and called 911. The responding deputy sheriff pulled up behind the driver’s car and saw Sawyer and another person kneeling over the victim who was lying on the ground near the passenger’s side of the car with a rag over his head. The deputy asked Sawyer who shot the victim, and Sawyer responded that “I did.” The deputy recovered the gun, and the victim died two days later. Sawyer was initially charged with involuntary manslaughter; however, he was subsequently indicted on charges of felony murder and aggravated assault after the autopsy report showed that the victim’s gunshot wound was a contact wound.

In its sole enumeration of error, the State contends that the trial court erred in setting aside Sawyer’s aggravated assault conviction.

Verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other.... A mutually exclusive verdict may be rendered in a particular case where the offenses or acts alleged in the indictment as underlying the [aggravated assault] and involuntary manslaughter counts reflect that the jury, in order to find the defendant guilty on both counts, necessarily reached two positive findings of fact that cannot logically mutually exist. To determine whether this occurred, the alleged underlying offenses or acts must be carefully scrutinized.

(Citations and punctuation omitted.) Flores v. State, 277 Ga. 780, 783 (3) (596 SE2d 114) (2004).

Aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2), may be committed either by attempting to commit a violent injury to the person of another, OCGA § 16-5-20 (a) (1), or by committing an act which places another in reasonable apprehension of immediately receiving a violent injury [,] OCGA § 16-5-20 (a) (2). A verdict of guilty as to aggravated assault based on OCGA § 16-5-20 (a)(1) requires a finding of an intentional infliction of injury, which precludes the element of criminal negligence in reckless conduct. A verdict of guilt predicated on OCGA § 16-5-20 (a) (2) does not.

(Citations and punctuation omitted.) Dryden v. State, 285 Ga. 281, 282 (676 SE2d 175) (2009). See also Jackson v. State, 276 Ga. 408, 411 (2) (577 SE2d 570) (2003) (proof of criminal intent is essential for a conviction based on OCGA § 16-5-20 (a) (1)). In determining whether Sawyer’s convictions for involuntary manslaughter and aggravated assault were mutually exclusive, we look to the indictment, the evidence, the jury instructions and the verdict form.

In this case, the indictment charged Sawyer with aggravated assault based on his actions in knowingly shooting the victim with “a pistol, a deadly weapon.”

Additionally, the verdict form returned by the jury did not specify which assault subsection served as the basis for Sawyer’s convictions. Nevertheless, our review of the record shows that the trial court only charged the jury on OCGA § 16-5-20 (a) (2). Notably, in its initial jury charge, the trial court charged the jury under OCGA § 16-5-20 (a) (2) that

a person commits the offense of aggravated assault when that person assaults another with a deadly weapon. To constitute such an assault, actual injury to the alleged victim need not be shown. It’s only necessary that the evidence shows beyond a reasonable doubt that the defendant intentionally committed an act that placed the victim in reasonable fear of immediately receiving a violent injuryf.]
After consideration of all the evidence, if you find that the facts do not support the charge of felony murder, you can also consider the offense of involuntary manslaughter. A person commits involuntary manslaughter when that person causes the death of another human being without any intention to do so by commission of the offense, in this case of reckless conduct [.]

Thereafter, in response to jury questions as to whether it could find Sawyer guilty of aggravated assault without finding him guilty of felony murder, the trial court responded that the jury had to make an independent decision on the aggravated assault count. In order to ensure that the jury understood the form of the verdict, the trial court subsequently recharged the jury as follows:

There are six counts in this indictment[.] ... On Count 1 involving felony murder, you’ve listened to the facts of the case, discuss among yourselves and see if in fact there was a felony committed, which in this case would be aggravated assault [.]... If you individually or collectively do not feel the facts support the charge of felony murder, then you also have the option under Count 1 to look at the lesser included involuntary manslaughter, which is also a felony, but involves the act of a misdemeanor, which in this case is reckless conduct. So you make a determination if a reckless conduct occurred [.]... You also have the option to find an individual not guilty on both of these and still can go to the rest of these counts because the rest of the counts stand alone. So the bottom line is that you have two options in Count 1, either felony murder or involuntary manslaughter or you could find not guilty of both. Then you’d go to the aggravated assault, which stands alone. You’d determine whether or not aggravated assault has been committed based on the definition that I gave you.

(Emphasis supplied.) One of the jurors then asked the trial court to read the definition of aggravated assault. In response, the trial court recharged the jury that

[a] person commits the offense of aggravated assault when that person assaults another with a deadly weapon. To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant intentionally committed an act that placed the alleged victim in a reasonable fear of immediately receiving a violent injury.

As set forth above, we look to the indictment, the evidence, the jury instructions and the verdict form in determining whether there is a reasonable probability that the jury might have returned a mutually exclusive verdict. If these factors allowed the jury to find the defendant guilty of aggravated assault based on eitherOCGA § 16-5-20 (a) (1) or (a) (2), then we must conclude that the jury based the verdict on (a) (1) in determining if the verdict was mutually exclusive. See Allaben v. State, 294 Ga. 315, 321 (2) (b) (751 SE2d 802) (2013); Walker v. State, 293 Ga. 709, 713 (2) (b) (749 SE2d 663) (2013); Jackson, supra, 276 Ga. at 411-413 (2).

Under the specific circumstances of this case, we find that the jury instructions only gave the jury the choice of finding Sawyer guilty of aggravated assault based on OCGA § 16-5-20 (a) (2), which does not require a finding of specific criminal intent toward the victim. Accordingly, there is no reasonable probability that the jury found that Sawyer acted with specific criminal intent in committing the aggravated assault. Moreover, there was no risk that the jury returned verdicts for aggravated assault and involuntary manslaughter that were mutually exclusive.

Decided March 26, 2014

Reconsideration denied April 10, 2014

Julia Fessenden Slater, District Attorney, W. Donald Kelly, Jr., Assistant District Attorney, for appellant.

Hagler, Jackson & Walters, Richard C. Hagler, for appellee.

Since the jury’s verdicts were not mutually exclusive, the trial court erred in setting aside Sawyer’s conviction for aggravated assault. Accordingly, we reverse the trial court’s grant of Sawyer’s motion for a new trial on that count.

Judgment reversed.

Barnes, P. J., concurs. Ray, J., concurs fully and specially.

Ray, Judge,

concurring fully and specially.

I concur fully in the majority’s opinion and in the resolution of this case. However, I write separately to point out that if the trial court had properly found that the verdicts were mutually exclusive, which we have herein determined not to be the case, the correct remedy would have been to grant a new trial both on Count 1 as to the lesser included offense of involuntary manslaughter and on Count 2 as to aggravated assault. See Walker v. State, 293 Ga. 709, 716-717 (2) (e) (749 SE2d 663) (2013). Here, the trial court merely granted a new trial on the aggravated assault charge and left in place the conviction for involuntary manslaughter. Such error is moot, however, given our decision to reinstate the conviction for aggravated assault based on our conclusion that the verdicts were not mutually exclusive.

       Sawyer was also indicted for and convicted of possession of a pistol by a minor, carrying weapons within certain school areas and making a false statement.

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

       We note that the State argued in closing that Sawyer’s actions in pointing the gun at the victim’s head went beyond reckless and were intentional. See Allaben v. State, 294 Ga. 315, 317 (2), n. 2 (751 SE2d 802) (2013). The trial court, however, charged the jury that closing arguments are not evidence, and qualified jurors under oath are presumed to follow the trial court’s instructions. See Drake v. State, 288 Ga. 131, 134-135 (2) (702 SE2d 161) (2010).

       The trial court’s charge substantially followed the pattern charge for aggravated assault with a deadly weapon. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.20.21 (4th ed. 2013).


author: Boggs, Judge.

text:
    A13A1883.
    SIMS v. BAYSIDE CAPITAL, INC. et al.
    (755 SE2d 520)
   Boggs, Judge.

Andrew J. Sims appeals from the trial court’s grant of summary judgment in favor of Esquire Deposition Solutions, LLC, Bayside Capital, Inc., H.I.G. Capital, LLC, f/k/a Bayside Gallo Acquisition, LLC, and Jackson Craig (collectively “Esquire”), in this action stemming from the termination of his employment. For the following reasons, we affirm in part and reverse in part.

On appeal from the grant of summary judgment, “we apply a de novo standard of review.” (Citations and punctuation omitted.) Ga. Cash America v. Greene, 318 Ga. App. 355, 358 (2) (734 SE2d 67) (2012). “[T]he moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also OCGA § 9-11-56 (c).

So viewed, the record reveals that in 2006, Sims was hired as the CFO of Alexander Gallo Holdings, LLC (“AGH”), a court reporting company. Sims’s employment was pursuant to a 2006 employment agreement with AGH, which was later superseded by a 2011 employment agreement.

Beginning in 2011, AGH began to suffer from financial difficulties, and on September 7, 2011 it filed a voluntary Chapter 11 bankruptcy petition. AGH requested permission of the court to sell its assets pursuant to 11 USC § 363, and negotiated an October 6, 2011 asset purchase agreement (“APA”) naming AGH and others as the seller and Bayside Gallo Acquisition, LLC (subsequently renamed “Esquire”), as the buyer. The APA was amended on November 8, 2011, and on November 10, 2011, the bankruptcy court approved the APA and set a hearing to consider any obj ections to the assumption or assignment of any “Assumed Contracts.” The APA was again amended for a final time on November 23, 2011, the day the asset purchase closed.

Pursuant to the APA, as amended, the assets in AGH’s bankruptcy estate were divided into acquired assets and liabilities, which Esquire would purchase, and excluded assets and liabilities, which it would not purchase. Sims’s employment agreement with AGH was listed as an “excluded contract” on Schedule 1.1 (b) (ii) of the October 6 and November 8 versions of the APA.

On November 14, 2011, nine days prior to the closing of the asset purchase, AGH published a press release announcing the bankruptcy court’s approval of the APA. At the time of the final amendment to the APA on November 23, 2011, and the closing of the purchase on the same day, however, Sims’s employment agreement with AGH was listed as a designated (or pending) contract, but was later deemed an excluded asset under the APA.

Although Esquire did not acquire Sims’s employment agreement at the closing of the APA, Sims nevertheless began employment with Esquire following the closing on an at-will basis. On November 28, 2011, five days following the closing of the asset purchase, Esquire informed Sims that his employment would be terminated.

Sims subsequently filed a verified complaint against Esquire, its affiliates, and Jackson Craig, its managing director, alleging breach of an oral contract, breach of a written contract, “promissory estoppel and detrimental reliance,” fraudulent inducement, and unjust enrichment. He also sought attorney fees and costs.

The parties filed cross-motions for summary judgment, and following a hearing, the trial court granted Esquire’s motion, and denied Sims’s motion. It is from this order that Sims appeals.

1. Sims argues that the trial court erred in granting summary judgment to Esquire on his claim for breach of an oral agreement that he claims was reached between him and Craig, Esquire’s managing director, on the day he was terminated. Esquire argues that while the parties discussed severance pay and litigation expenses, no agreement was ultimately reached, and that any alleged agreement based upon terms discussed on November 28 would fail for lack of consideration. But construing the evidence most favorably to Sims, during the meeting on November 28 where Sims was informed he would be terminated, Craig agreed to pay Sims six months of his salary as severance or what “equated to six months of salary,” health insurance coverage through the end of 2011, and a payment of $175,000 as reimbursement for legal fees and expenses Sims and Alexander Gallo (CEO of AGH) incurred during the bankruptcy. In return, Sims agreed to remain available through the end of December 2011.

A contract is an agreement between two or more parties for the doing or not doing of some specific thing. In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference. Until all understand alike, there can be no assent, and, therefore, no contract. Both parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode is agreed on by which it may be settled, there is no agreement.

(Citations, punctuation and footnote omitted.) BDI Laguna Holdings v. Marsh, 301 Ga. App. 656, 663-664 (3) (689 SE2d 39) (2009).

It is undisputed that Sims was an at-will employee of Esquire who was later terminated. In the absence of an agreement requiring Esquire to pay Sims severance or provide him with health benefits or reimbursement for legal fees, Esquire was under no obligation to do so. The offer to make these concessions would therefore be “a mere gratuity.” (Citation and punctuation omitted.) Mgmt. Search v. Morgan, 136 Ga. App. 651, 653 (1) (222 SE2d 154) (1975) (bonus notbased upon any new consideration was mere gratuity); see also Gale v. Hayes Microcomputer Products, 192 Ga. App. 30, 30-31 (1) (383 SE2d 590) (1989) (at-will employee not entitled to further payments after termination). Sims agreed, however, to “be available” and assist with the transition of the “finance function” for an additional month as consideration for the oral agreement. Even if that consideration is wholly inadequate, in the absence of “ ‘great disparity of mental ability in contracting a bargain,’ ” a contract cannot be set aside for inadequate consideration. Kimbrell v. Connor, 218 Ga. App. 812, 813-814 (463 SE2d 376) (1995); see OCGA § 23-2-2. Indeed, OCGA § 13-3-46 provides that “[m]ere inadequacy of consideration alone will not void a contract.”

“[Wjhere there is a conflict in the evidence as to the existence of an oral contract or as to its terms, the matter must be submitted to a jury for resolution.” (Citations and punctuation omitted.) Rome v. Polyidus Partners, 322 Ga. App. 175, 178 (2) (744 SE2d 363) (2013). Because Sims has presented evidence creating a genuine issue of material fact regarding whether the parties reached an oral agreement, the trial court erred in granting Esquire’s motion for summary judgment with regard to that agreement.

2. Sims next complains that Esquire committed fraud by leading him to believe that he would receive a written offer of employment for a definite term following the closing of the APA, while Esquire knew before the closing that it intended to terminate his employment.

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” (Citation and punctuation omitted.) Stiefel v. Schick, 260 Ga. 638, 639 (1) (398 SE2d 194) (1990). “To survive a motion for summary judgment in an action for fraud (including fraudulent inducement), a plaintiff must come forward with some evidence from which a jury could find each of the [foregoing] elements.” (Citations, punctuation and footnote omitted.) Jar Allah v. Schoen, 243 Ga. App. 402, 403-404 (1) (531 SE2d 778) (2000).

And significantly, when the representation consists of general commendations or mere expressions of opinion, hope, expectation and the like, the party to whom it is made is not justified in relying upon it, and thus, it cannot serve as the basis for either a fraud or a negligent misrepresentation claim.

(Citations, punctuation and footnotes omitted.) Bithoney v. Fulton-DeKalb Hosp. Auth., 313 Ga. App. 335, 343 (2) (721 SE2d 577) (2011).

Sims points to statements in Esquire’s press release, published nine days before the closing, that the “[e]ntire management team” (of which he was a part) was “excited to continue leading the Company”; an e-mailed letter on the same day to Esquire employees stating that “[o]ur entire management team . . . [is] committed to continuing to build the business”; and a notation at the bottom of Schedule 1.1 (b) (ii) (Excluded Contracts) referring to Sims and several other employees and stating: “Buyer intends to make offers of employment to such persons pursuant to and in accordance with . . . the Purchase Agreement.” Sims contends that it was reasonable to infer from these representations that he would receive a written offer of employment from Esquire following the closing. He argues that because Craig deposed that he had decided prior to the November 14 press release that he was going to replace Sims as CFO, the press release, e-mail and the notation in the APA were false representations.

First, Sims has failed to show that the statements in the press release and e-mail were false representations. He has provided no evidence showing that management, including himself, did not in fact look forward to continuing to lead the company. See Marshall v. King & Morgenstern, 272 Ga. App. 515, 521 (5) (613 SE2d 7) (2005) (no evidence of false representation where letter stated only that party was trying to resolve dispute). And, in any case, while Sims argues that in reliance on these statements, he became an at-will employee of Esquire, he makes no argument and has presented no evidence of damages as a result of him doing so. To recover in tort for fraud, Sims must show that he sustained a loss or damage as the result of the alleged misrepresentations, “and in so doing, show not only that had [he] known the truth [he] would not have acted [and accepted the at-will employment] but also that [he] suffered actual economic loss.” (Citations and punctuation omitted.) CSS Real Estate Dev. v. State Bank and Trust Co., 324 Ga. App. 184, 186 (749 SE2d 773) (2013). Sims simply has failed to show that he suffered actual damages as a result of any alleged fraud on the part of Esquire. See id. And “[t]o establish a cause of action for fraud, a plaintiff must show that actual damages, not simply nominal damages, flowed from the fraud alleged.” (Citation and punctuation omitted.) Nash v. Studdard, 294 Ga. App. 845, 848 (1) (670 SE2d 508) (2008). Sims’s fraud claim accordingly fails because he cannot establish some of the essential elements required for a prima facie case of fraud. The trial court therefore did not err in granting summary judgment to Esquire on that claim.

3. Sims argues that the trial court erred in granting summary judgment on his claim for breach of his written employment agreement. While his AGH employment agreement was not expressly assumed by Esquire, Sims argues that Esquire “unilaterally” and extrajudicially assumed the agreement by seeking to enforce its post-termination provisions.

The record reveals that on January 12, 2012, Esquire sent Sims a letter seeking to enforce various restrictive covenants in Sims’s 2006 employment agreement. Sims responded with a January 17, 2012 letter informing Esquire that his 2006 employment agreement with AGH had been superseded by a 2011 employment agreement, that he intended nevertheless to honor the post-termination obligations under the 2011 agreement, and that Esquire’s attempt to enforce the post-employment provisions operated as an “assumption” by Esquire of certain obligations of that agreement that survived his termination by Esquire. Sims contends that he complied with the post-termination obligations of the 2011 agreement until February 22, 2012, when Esquire notified him via e-mail that there was a “misconception as the status of Mr. Sims’ [employment] agreement [with AGH]” at the time the letter was sent, that Esquire had not assumed that agreement, and that the agreement had been excluded from the assets acquired by Esquire.

Sims’s argument here is essentially that Esquire, by seeking to enforce an agreement it did not assume under the APA, nevertheless assumed the agreement by implication and is bound thereby.

Where a contract or undertaking is personal, it binds only the original parties and those who may assume the obligation or ratify or adopt the contract.... A third person may, of course, assume the obligation expressly in writing, or he may do so by implication where his conduct manifests an intent to become bound. In the latter event all the circumstances must be considered, such as the subj ect matter of the contract, the third person’s acts and words, whether he acquiesced in the terms of the contract, performed its obligations, or accepted the benefits. Although the burden of proving an express or implied assumption is on the claimant at trial, the defendant as movant on motion for summary judgment, has the burden of proving that an assumption did not occur.

(Citations and punctuation omitted.) Boss v. Bassett Indus., 163 Ga. App. 246, 247-248 (2) (292 SE2d 885) (1982) (full concurrence as to the holding).

While Esquire did not expressly assume Sims’s employment agreement with AGH in writing, it did seek in writing to enforce its provisions. And Esquire has not shown that it did not accept the benefit of Sims’s claimed compliance with the agreement’s post-termination provisions at Esquire’s request. In fact, Esquire makes no argument asserting that it did not assume the employment agreement by implication, but argues only that it did not expressly do so. Under these circumstances, Esquire has not met its burden of proving that an assumption did not occur. Because there exists a question of fact as to whether Esquire, by its actions, assumed Sims’s employment agreement with AGH by implication, the trial court erred in granting Esquire summary judgment on Sims’s claim for breach of that agreement. See Boss, supra, 163 Ga.App. at 248 (2); see also Central of Ga. R. Co. v. Woolfolk Chemical Works, 122 Ga. App. 789, 794-796 (1) (178 SE2d 710) (1970) (defendant failed to disprove assumption by implication).

4. Finally, Sims argues that he was entitled to 160 hours of vacation pay upon his termination from Esquire. The record contains Sims’s earning statements as an AGH employee from December 2010 to December 2011. One of these statements, for a pay period ending on July 31, 2011, showed that as of that date, Sims had accrued a vacation balance of 160 hours. Esquire argues that it only assumed liability for accrued vacation after the filing of the bankruptcy petition, and that because the 160 hours of Sims’s vacation was accrued before the filing of the petition, it is not obligated to pay Sims for those hours.

Decided March 25, 2014

Reconsideration denied April 10, 2014

William F. Kaspers, for appellant.

Arnall Golden Gregory, Ashley S. Kelly, Theresa Y Kananen, for appellees.

Because we have held in Division 3 that there is an issue of fact regarding whether Esquire assumed Sims’s 2011 employment contract with AGH, consideration of whether he is entitled to payment for vacation accrued under that agreement is premature. We therefore do not address this enumeration.

Judgment affirmed in part and reversed in part.

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

       While Schedule 1.1 (b) (ii) is not attached to the November 8 amendment, the amendment does not purport to alter that schedule.

       The November 23 amendment amended certain schedules of the October 6 APA “as amended on November 8, 2011,” but those schedules are not attached to the November 23 amendment and the parties have not provided a record cite to the attachments in this voluminous record. The parties do not assert, however, that any of the schedules were amended such that it would affect the claims presented on appeal.

       Esquire argues that the parties failed to agree on the exact dollar amount of the six months of salary. But construing the evidence as we must in favor of Sims, the parties agreed that Esquire would pay Sims six months of his salary as severance, health insurance through the end of the year, and $175,000 to Sims and Gallo for reimbursement. So in addition to an issue of fact regarding whether the parties reached an oral agreement, there also remains an issue of fact regarding the exact amount of six months of Sims’s salary. Esquire argues further that the parties failed to agree as to whether the severance would be styled as a loan reimbursement for tax purposes, and failed to agree on how to allocate the litigation expenses between Sims and Gallo. But “the parties need only agree to the essential terms of the contract... it is unnecessary that a contract state definitively and specifically all facts in detail to which the parties may be agreeing.” (Citations and punctuation omitted.) See Rushin v. Ussery, 298 Ga. App. 830, 834 (2) (681 SE2d 263) (2009).

       This 2011 employment agreement contained confidentiality, nondisclosure, and non-solicitation provisions.