author: McFADDEN, Judge.

text:
    A15A0879.
    ELLIS et al. v. HARTFORD RUN APARTMENTS, LLC et al.
    (779 SE2d 103)
   McFADDEN, Judge.

Julian Ellis and Lisa Hicks filed this action for property damages and personal injury, alleging that the defendants failed to keep their apartment in good repair. The defendants, property owner Hartford Run Apartments, LLC, property management company B&M Management, LLC, and property management agent Sheila Foster, counterclaimed for unpaid rent and for the rent due for the duration of the lease. The trial court granted the defendants summary judgment, and the plaintiffs appeal.

On appeal, the plaintiffs argue that the trial court erred in granting the defendants summary judgment on their negligence claim because whether the defendants breached their duty to maintain the property in good repair is a fact question requiring jury resolution; they were not required to present expert testimony on the issue of causation; and their knowledge of any defects does not bar their action. We agree that the plaintiffs submitted sufficient evidence to create a question of fact on the issue of breach of duty; that they were not required to submit expert testimony to support their property damage claim; and that their knowledge of any defects does not bar their action. We hold, however, that the plaintiffs were required to submit expert testimony to support their personal injury claim.

The plaintiffs also argue that the trial court erred in granting summary judgment on their negligence per se claim. We hold that the trial court did not err in granting summary judgment on plaintiffs’ negligence per se claim insofar as it was based on violations of a city of Buford ordinance because they failed to submit a copy of the ordinance into evidence. Nor did the court err in granting summary judgment on the plaintiffs’ negligence per se claim insofar as it was based on OCGA § 44-7-20, the statute requiring notification of a property’s propensity toward flooding, because that statute does not apply to these facts. But the trial court erred in granting summary judgment on the plaintiffs’ negligence per se claim insofar as it was based on OCGA § 44-7-13, the statutory duty to repair.

The plaintiffs further argue that they submitted evidence sufficient to create a jury question on their breach of contract claim for the defendants’ violation of provisions of the lease. We agree.

Because we reverse the defendants’ grant of summary judgment on some of the plaintiffs’ claims, we also reverse the defendants’ summary judgment on the plaintiffs’ claim for punitive damages, which the trial court granted on the ground that all the plaintiffs’ claims failed.

Finally, the plaintiffs argue that the trial court erred in granting summary judgment to the defendants on their counterclaim for unpaid rent. We agree because construing the evidence and pleadings in favor of the plaintiffs as nonmovants, whether the plaintiffs were constructively evicted from their apartment is a question for jury resolution.

Accordingly, we affirm in part and reverse in part the defendants’ summary judgment.

1. Evidence.

When reviewing the grant of the defendants’ motion for summary judgment, “[w]e view the evidence in the light most favorable to the plaintiff[s] and give [them] the benefit of all reasonable doubts and inferences.” Phillips v. King, 214 Ga. App. 712 (448 SE2d 780) (1994) (citation omitted). Viewed in this light, the evidence showed that the plaintiffs lived at the Hartford Run Apartments from April 16, 2010, until they moved out in July 2013, about three months before their lease expired. The plaintiffs first lived in Unit 1904 for six months. Then, on November 1, 2010, they moved to a two-bedroom unit, Unit 1712.

The plaintiffs experienced maintenance problems, which they reported to management, in both apartments. Ellis testified in his deposition that the pipes in the complex constantly broke, under the plaintiffs’ building and elsewhere, and that although the defendants repaired the pipes, the crawlspace never dried completely. He reported to management recurrent mold in the master bathroom and musty smells throughout the apartment, specifically in the utility room, the kitchen, and the second bathroom.

In response to Ellis’s complaints, management employees simply told him that it was not uncommon and to “just keep cleaning it and . . . applying the bleach and that everything should be fine.” Defendant Foster, the property manager, told him “to open the windows.” Hicks tried to clean the mold with bleach. The mold problem continued to get worse, and Ellis reported it, but the defendants never “really did anything about it”; the mold always came back.

In addition to a mold problem, the plaintiffs’ apartment was infested with roaches; roaches would crawl on them while they were sleeping. The plaintiffs reported the problem. Although management arranged for periodic spraying — and the plaintiffs sprayed the apartment themselves — the roach infestation continued for the duration of the plaintiffs’ tenancy.

There were problems with the gutters and the roof, which the plaintiffs reported. When the plaintiffs reported water on the ceiling in the bathroom, management simply put a tarp on the roof, which remained there for the duration of the plaintiffs’ residence. When they reported problems with the gutters, the defendants simply removed them, leading to flooding at the front of the apartment.

In June and July 2013, the city of Buford posted a letter and notice at the complex stating that, after its own investigation, it had determined that all buildings in the complex were dangerous and unfit for human habitation. At that time, the plaintiffs stopped paying rent and moved out.

The plaintiffs filed this action, alleging that although they had notified the defendants repeatedly of the problems of mold contamination, pest infestation, and water intrusions, the defendants never adequately resolved the problems. The plaintiffs alleged that the defendants breached their duty under OCGA § 44-7-13 to maintain the premises in good repair; that the defendants were negligent per se; and that the defendants had breached the lease. The plaintiffs sought damages for property damage, personal injury, moving expenses, and diminution of the apartment’s rental value. The plaintiffs also sought litigation expenses and punitive damages.

The defendants answered the complaint and asserted a counterclaim, alleging that the plaintiffs breached the lease by failing to make rental payments and by abandoning the apartment without complying with the lease’s early termination provision. They sought all unpaid rent and all rent accruing through the remainder of the abandoned lease term.

The defendants moved for summary judgment, and the plaintiffs filed no response. The trial court conducted a hearing at which the plaintiffs did not appear. The trial court granted summary judgment to the defendants on the plaintiffs’ claims as well as on the defendants’ counterclaim for “the reasons outlined in Defendants’ Brief In Support of Motion for Summary Judgment.” The plaintiffs filed this appeal.

2. Negligence.

(a) Breach of duty.

The plaintiffs argue that they have presented sufficient evidence to create a question of fact on the issue of the defendants’ breach of duty. We agree.

The defendants had a duty to maintain the premises in good repair. See OCGA §§ 44-7-13 (“The landlord must keep the premises in repair.”); 44-7-14 (“[T]he landlord is responsible for damages arising... from the failure to keep the premises in repair.”). This duty requires the landlord to keep the premises in “that state of repair which is reasonably necessary to make them fit for the use intended by the lessee and known to the lessor.” Point Apartments v. Bryant, 99 Ga. App. 110, 113 (107 SE2d 684) (1969).

The landlord’s failure to make repairs within a reasonable time after due notice is given renders him liable to the tenant for damages resulting from the failure to make such repairs. This is true even though the landlord attempts to make repairs since he is responsible until the repairs are actually accomplished.

Booker v. J. T. Bickers Realty Co., 127 Ga. App. 614, 615 (194 SE2d 490) (1972) (citations omitted).

To show that it is undisputed that they did not breach their duty, the defendants relied on the affidavit of defendant Foster, the property manager. Foster testified that “[t]o [her] knowledge, the management office and/or maintenance staff address [ed] all complaints and service requests submitted by [pjlaintiffs.” But the plaintiffs testified otherwise. As detailed above, they testified that they repeatedly notified the defendants about the problems with the apartment, but in spite of this notice, the defendants never made the apartment fit for habitation. Accordingly, the plaintiffs have presented evidence creating issues of fact for jury resolution. OCGA § 9-11-56 (c).

(b) Plaintiff s’ knowledge was equal or superior to defendants’.

The defendants argued in the brief supporting their motion for summary judgment that the plaintiffs could not recover because their knowledge of any defective condition was equal or superior to the plaintiffs’. But “a plaintiff/tenant’s equal or superior knowledge of a dangerous condition will not always preclude his or her recovery for injuries caused by that dangerous condition.” Phillips, supra, 214 Ga. App. at 713 (citation and footnote omitted). When both the tenant and the landlord are aware of the defective condition, the question is: “Given the tenant’s equal or superior knowledge, could he or she have avoided the [defective condition], either by avoiding the problematic area, or by using it more cautiously?” Id. at 714. The plaintiffs have provided sufficient evidence to create a fact question on this issue,

(c) Expert testimony regarding causation.

The plaintiffs argue that the trial court erred in granting summary judgment on the ground that they failed to present expert testimony regarding causation, a ground the defendants asserted in the brief supporting their motion for summary judgment. We hold that the plaintiffs have provided insufficient evidence to withstand summary judgment on the personal injury claim, but that they have provided sufficient evidence to withstand summary judgment on their claim for damage to their personal property.

(i) Personal injury.

Hicks testified that she had been very sick for months before moving out of the apartment. She testified that her doctor told her it was possible that her thyroid disease was related to the condition of her apartment. Her allergist told her that her asthma attacks were allergic reactions to dust, pollen, and mold. Hicks also saw doctors for bronchitis and sinus infection, but, she testified, she did not know if those conditions were caused by her living in the apartment.

A lay plaintiff may only testify about

his feelings, pains and symptoms, as well as to all of the characteristics of the injury, external and internal. This is the limit of his competency. Accordingly, [Hicks] could testify that there had been a worsening of [her] physical condition since [her taking up residence in the apartment], but as to whether the worsening was caused by the [mold in the apartment] a medical opinion was required.

Eberhart v. Morris Brown College, 181 Ga. App. 516, 518-519 (1) (352 SE2d 832) (1987) (citations and punctuation omitted). A plaintiff must submit “expert medical testimony, based at least on reasonable probability, to establish a causal link between exposure to a substance and a medical condition.” Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 160 (3) (b) (658 SE2d 909) (2008) (citations and punctuation omitted) (defendant was entitled to summary judgment on plaintiff’s personal injury claim because plaintiff presented no expert medical testimony to establish a causal link between her exposure to mold and her respiratory conditions). This is true at the summary judgment stage: “[E]ven in simple negligence cases, plaintiffs must come forward with expert evidence to survive a defense motion for summary judgment, where medical questions relating to causation are involved.” Cowart v. Widener, 287 Ga. 622, 627 (2) (a) (697 SE2d 779) (2010).

The plaintiffs argue that this rule does not bar Hicks’s personal injury claim because whether a known allergen causes an allergic reaction is not a specialized medical question. But the plaintiffs have pointed us to no authority supporting such an exception to the rule in a case such as this, where a plaintiff seeks damages for allergic reactions to dust, pollen, and mold. Hicks also saw doctors for bronchitis and sinus infection. Because the plaintiffs failed to submit expert medical testimony linking Hicks’s exposure to mold to her medical conditions, the defendants were entitled to summary judgment on the claim for damages for personal injury. Given this holding, we do not address the defendants’ argument that Hicks’s personal injury claim is barred by the running of the statute of limitation.

(ii) Property damage.

On the other hand, we believe the plaintiffs submitted sufficient evidence to withstand summary judgment on their claim for property damage. They testified that pipes broke under their unit, that the crawlspace was never dry, that mold grew in their apartment, that the defendants knew about these problems but failed to remedy them, and that they observed a growth on their belongings. Hicks testified that when they moved out they left most of their personal property, including furniture, clothes, bedding, and personal effects, because the property was covered with a growth. We find that whether the plaintiffs’ claimed damage to their personal property was proximately caused by the defendants is a question for the factfinder. See Sutton, supra, 290 Ga. App. at 158-159 (3) (a).

3. Negligence per se.

The plaintiffs argue that the trial court erred in granting the defendants summary judgment on the plaintiffs’ claim based on negligence per se. We agree in part and disagree in part.

(a) The International Property Maintenance Code.

The plaintiffs alleged that the defendants were negligent per se for failing to comply with the International Property Maintenance Code, which the city of Buford has adopted. But the plaintiffs failed to offer into evidence a copy of the Code, ask the court to take judicial notice of the Code, or specify which sections of the Code the defendants had violated. The defendants were thus entitled to summary judgment on the plaintiffs’ negligence per se claim based on violations of the Code. Norman v. Jones Lang LaSalle Americas, 211 Ga. App. 621, 629 (2) (b) (627 SE2d 382) (2006).

(b) OCGA § 44-7-20.

The plaintiffs argue that they alleged in their complaint that the defendants were negligent per se for violating OCGA § 44-7-20. That statute requires a property owner seeking to lease his property to

. . . notify the prospective tenant ... of the property’s propensity of flooding if flooding has damaged any portion of the living space covered by the lease ... at least three times during the five-year period immediately preceding the date of the lease. . . . [Flooding is defined as the inundation of a portion of the living space covered by the lease which was caused by an increased water level in an established water source such as a river, stream, or drainage ditch or as a pond-ing of water at or near the point where heavy or excessive rain fell. . . .

The plaintiffs do not allege that their living space flooded at least three times during the five-year period before their lease because of flooding from a river, stream, drainage ditch, or a ponding of water. OCGA § 44-7-20 is inapplicable to this case, and the defendants were entitled to summary judgment on the plaintiffs’ negligence per se claim to the extent it was based on violation of this statute.

(c) OCGA § 44-7-13.

The plaintiffs argue that they alleged in their complaint that the defendants were negligent per se for violating OCGA § 44-7-13. OCGA § 44-7-13 provides in pertinent part: “The landlord must keep the premises in repair.” The plaintiffs presented evidence, including the failure to ameliorate the mold and roach problems, sufficient to create a jury question on the issue of whether the defendants violated this statute. Consequently, the trial court erred in granting the defendants summary judgment on the plaintiffs’ negligence per se claim to the extent it was based on violation of OCGA § 44-7-13.

4. Breach of contract.

The plaintiffs argue that whether the defendants breached the lease agreement is a question of material fact. We agree. The agreement provided that “management shall not be liable for damage . . . or other loss of any kind to resident’s or his occupant’s personal property, unless such is due to management’s negligence...” and that the apartment was “in habitable conditions suited for residential purposes.” Given the evidence described above, whether the defendants breached these contractual provisions is a fact question for the jury to resolve.

5. Punitive damages.

In their motion for summary judgment, the defendants argued that the plaintiffs’ punitive damages claim failed because all of their other claims failed. Without significant elaboration, the trial court granted summary judgment for “the reasons outlined in Defendant’s Brief In Support of Motion for Summary Judgment.” As we reverse in part the defendants’ grant of summary judgment on the plaintiffs’ claims, we accordingly reverse the grant of summary judgment on the punitive damages claim.

6. Counterclaim.

The plaintiffs argue that the trial court erred by granting the defendants summary judgment on their counterclaim because a question of fact exists as to whether the plaintiffs were constructively evicted, thereby defeating their obligation to pay rent. As the defendants observe, the plaintiffs did not raise constructive eviction as a defense to the counterclaim. But the plaintiffs were not required to assert any defense in a response to the counterclaim. U. S. Traffic Corp. v. Turcotte, 246 Ga. App. 187 (1) (539 SE2d 884) (2000). Nor were they required to respond to the summary judgment motion. Sherman v. Thomas-Lane American Legion Post 597, 330 Ga. App. 618, 620 (1) (768 SE2d 797) (2015). Instead, they could rely on the defendants’ failure to remove any fact questions. Id. Construing their amended complaint “with considerable indulgence,” Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996), and viewing the evidence in their favor as nonmovants on summary judgment, we conclude that the plaintiffs did allege and submit evidence showing that they had been constructively evicted.

To show a constructive eviction that excuses the payment of rent,

there must be either an actual expulsion of the tenant, or some act of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises. An act may be considered grave in character if it renders the premises untenantable or unfit for the use and benefit of the tenant in accomplishing one or more of the substantial purposes of the lease.

Jenkins v. Brice, 231 Ga. App. 843, 844 (1) (499 SE2d 734) (1998) (citations and punctuation omitted).

In the amended complaint, the plaintiffs alleged that the defendants failed to provide a safe and habitable living space and sought damages for, among other things, their moving expenses. As detailed above, they have provided some evidence that the defendants’ failure to maintain the apartment in good repair rendered it unfit for habitation, forcing them to vacate their apartment. This evidence included the notice and letter from the city of Buford. Although the defendants argue that this evidence was inadmissible hearsay, it falls within the public records and reports exception to the hearsay rule. OCGA § 24-8-803 (8); Maloof v. MARTA, 330 Ga. App. 763, 767-768 (2) (769 SE2d 174) (2015).

Decided November 4, 2015

Reconsideration denied December 7, 2015

HPJ Legal Services, Carson L. Jeffries, for appellants.

Quirk & Quirk, Joseph P. Quirk, Kathleen A. Quirk, for appellees.

Because the record demonstrates a question of fact as to the defendants’ entitlement to rent, the trial court erred in granting the defendants summary judgment on their counterclaim.

Judgment affirmed in part and reversed in part.

Dillard, J., concurs. Ellington, P. J., concurs in judgment only.

       Throughout the record, Foster’s first name is sometimes written as Shelia and sometimes written as Sheila. We will refer to this defendant as Foster.

       That standard obtains notwithstanding the plaintiffs’ failure to respond to the motion for summary judgment (which they aver they did not receive) or to appear at the hearing on that motion. There is no such thing as a default summary judgment. Smith v. Atlantic Mut. Cos., 283 Ga. App. 349, 351 (1) (641 SE2d 586) (2007).


source: Caselaw Access Project

license: Public Domain

text:
    A15A1034.
    A15A1035.
    WOODHAM v. ATLANTA DEVELOPMENT AUTHORITY. WOODHAM et al. v. ATLANTA DEVELOPMENT AUTHORITY.
    (779 SE2d 116)
   McFADDEN, Judge.

These related appeals arise from an attempt by Atlanta Development Authority (the Authority) to conduct discovery in connection with collecting a judgment against attorney John F. Woodham and Citizens for Ethics in Government, LLC (“Citizens”). Woodham represents himself pro se and also represents Citizens.

Woodham is the sole appellant in Case No. A15A1034. He challenges the trial court’s denial of his motion to recuse, but his motion did not meet the threshold requirements of Uniform Superior Court Rule 25.3; accordingly, we affirm that ruling. He also challenges the trial court’s authority to compel post-judgment discovery from him, but he waived appellate review of that challenge by consenting to the discovery. And he challenges the trial court’s order finding him in contempt for wilfully failing to comply with two post-judgment discovery orders. The evidence supports the finding of contempt, which we affirm. However, we reverse as an improper penalty that portion of the contempt order requiring Woodham to pay legal fees and costs to purge the contempt, because the fees and costs were not part of a previously-ordered award.

Woodham and Citizens are both appellants in Case No. A15A1035. They challenge the trial court’s order requiring a supersedeas bond in the amount of the legal fees and costs ordered for Woodham to purge the contempt. Because we have reversed that portion of the contempt order, we also reverse the supersedeas bond order. We also reverse the imposition of a supersedeas bond upon Citizens, because Citizens has not appealed from the contempt order.

1. Procedural history.

The background of this case is set forth in our decision in an earlier appeal, Citizens for Ethics in Govt. v. Atlanta Dev. Auth., 303 Ga. App. 724 (694 SE2d 680) (2010). In summary, Woodham and Citizens intervened in a bond validation proceeding in 2008. Id. Their conduct in that proceeding led the trial court to issue an order that, among other things, required them to pay $303,141.89 in attorney fees and expenses to the Authority, which was one of the parties to the bondvalidation proceeding. Id. at 731. Woodham and Citizens appealed, and we vacated “the portion of [that order] awarding attorney fees and remand[ed] for an explanation of the statutory basis for the award and any findings necessary to support it.” Id. at 738-739 (5) (citations, punctuation and footnote omitted). On remand, the trial court issued an interlocutory order from which Woodham and Citizens improperly attempted to appeal, leading this court to assess a frivolous appeal penalty of $2,500 against each of them. Subsequently, the trial court entered a new order again requiring them to pay the Authority $303,141.89 in attorney fees and expenses.

In an attempt to collect on these awards, in April 2014 the Authority sought post-judgment discovery from Woodham and Citizens and noticed Woodham’s deposition. Woodham and Citizens filed an objection, arguing that the judgment was not enforceable or collectible because the Authority had not yet filed a civil case disposition form pursuant to OCGA § 9-11-58 (b). (In his appellate brief in Case No. A15A1034, Woodham states that the Authority filed the disposition form the following month.) Nonetheless, Woodham appeared at the deposition but refused to answer most of the questions asked. The Authority moved to compel discovery from Woodham and Citizens, and on June 13,2014, after a hearing, the trial court granted the motion and, among other things, ordered Woodham to appear at court on June 27, 2014, for his deposition. After the entry of that order but before the scheduled deposition date, Woodham moved to recuse the trial judge based on alleged inappropriate conduct at the hearing, and the trial judge voluntarily recused.

Woodham did not appear for the court-ordered deposition or comply with the other directives of the June 13 order, and he rebuffed an attempt by the Authority’s counsel to resolve the discovery dispute. On July 16, 2014, the Authority filed a motion for contempt against Woodham and Citizens, and on July 24,2014, after a hearing, a new trial judge found them in contempt of the June 13 order and ordered them to give depositions instanter. Woodham’s deposition began that day, and the next day, July 25, 2014, the Authority and Woodham consented to an order requiring Woodham to produce certain documents by 5:00 p.m. that day, to provide written interrogatory responses by 10:00 a.m. on July 28, and to continue to appear for deposition until the deposition was complete.

Woodham did not produce the documents or reappear at court for deposition the afternoon of July 25, and the Authority moved the trial court to hold Woodham (but not Citizens) in wilful contempt. On August 4, the trial court issued a rule nisi setting the hearing on the contempt motion for August 11. On August 8, 2014, Woodham moved for the recusal of the new trial judge.

Woodham did not appear at the August 11, 2014 hearing, at which the trial court heard argument from the Authority’s attorney on both the recusal motion and the motion for contempt. At the end of the hearing the trial court took both matters under advisement, and later that day he issued orders denying the motion to recuse and granting the contempt motion. The trial court found Woodham intentionally failed to comply with the July 24 and July 25 orders and ordered that he be arrested and held until he purged the contempt by providing discovery responses, producing documents, and reimbursing the Authority $18,862.74, which the trial court found to be the amount of legal fees and costs the Authority had incurred in June and July 2014 due to Woodham’s contempt.

The day that the trial court issued the contempt order, Woodham applied for supersedeas, which the trial court granted. On September 10, 2014, Woodham filed a notice of appeal from the contempt order. Two days later, the Authority moved for the imposition of a super-sedeas bond of $18,862.74 against Woodham (but not Citizens). On October 1, 2014, the trial court entered an order requiring “that Appellants... immediately post a supersedeas bond or other security in the amount of $18,862.74 in order to satisfy this Court’s order of August 11, 2014.” (Emphasis supplied.)

Case No. A15A1034

In Case No. A15A1034, Woodham challenges the denial of his motion to recuse, the trial court’s authority to order the post-judgment discovery, and the contempt order.

2. Recusal.

Woodham argues that the trial court erred in denying his motion to recuse. Uniform Superior Court Rule 25.3 provides:

When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted.

Examining de novo the application of this rule to Woodham’s motion to recuse and supporting affidavit, see Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114, 120 (2) (728 SE2d 189) (2012), we find no error.

In his motion and affidavit, Woodham argued that the trial judge should recuse for three reasons: because the judge did not disclose that he had received a campaign contribution from the judge who entered the June 13 order (and who later had voluntarily recused from the case); because the judge disregarded Woodham’s request to postpone complying with the July 24 and July 25 discovery orders due to a “legal emergency” in another case; and because members of the judge’s staff engaged in ex parte communications with the Authority’s attorney about scheduling a hearing on the contempt motion.

The trial court denied the motion as untimely. This was correct only as to one of the three grounds upon which Woodham sought recusal. A motion to recuse and supporting affidavit must be filed, among other things, “not later than five (5) days after the affiant first learned of the alleged grounds for disqualification^]” Uniform Superior Court Rule 25.1. Woodham filed his motion and affidavit on August 8, 2014. The affidavit shows that by July 25, more than five days earlier, Woodham knew that the trial court would not excuse him from his discovery obligations based on the “legal emergency.” Accordingly, his motion to recuse based on this ground was untimely. As to the other grounds, however, Woodham averred that he learned of the prior judge’s campaign donation on August 7, the day before he filed his motion. And he averred that he learned of the ex parte communications on August 1, which falls within five days of Wood-ham’s motion because the weekend days are not counted in determining the motion’s timeliness. See OCGA § 1-3-1 (d) (3) (excluding Saturdays and Sundays in computation of time periods of less than seven days); see also Mayor & Aldermen of Savannah, 291 Ga. at 120 (2) (a).

Nevertheless, we affirm the denial of the recusal motion, because the facts alleged in the motion regarding the campaign contribution and the ex parte communications, even if true, did not warrant recusal. See Gude v. State, 289 Ga. 46, 48 (2) (709 SE2d 206) (2011). As to the campaign contribution, our Supreme Court has held that even where the contributor to the judge was a party, the mere fact of the contribution does not warrant recusal where the contribution was not exceptionally large. See id. at 50 (2) (c). Here, of course, the campaign contributor was not a party but merely one of the judge’s colleagues on the court, and the alleged contribution of $500 was not exceptionally large. As to the ex parte communications, our Supreme Court has held that ex parte communications regarding the scheduling of hearings generally are not prohibited and do not warrant recusal. See Lue v. Eady, 297 Ga. 321, 323-324 (1) (773 SE2d 679) (2015).

3. Post-judgment discovery.

Woodham challenges the trial court’s orders compelling post-judgment discovery, arguing that the trial court did not give him sufficient notice to give his deposition on July 24 and that the trial court should not have compelled any discovery because the Authority sought post-judgment discovery before it filed a civil case disposition form. See OCGA § 9-11-58 (b). The record shows, however, that Woodham began the deposition on July 24 and consented to the July 25 order requiring him to respond to discovery and give deposition testimony. By consenting to the discovery, he waived appellate review of his claim that the discovery was improper. See Considine v. Murphy, 327 Ga. App. 110, 114 (2) (755 SE2d 556) (2014) (party’s voluntary act of consenting to order waives appellate challenge to substance of order). We need not consider Woodham’s arguments regarding the judgment’s enforceability during the time period before the filing of the civil case disposition form, because he does not dispute that, by the time the trial court compelled discovery, the Authority had filed the form.

4. Contempt.

Woodham argues that the trial court erred both in finding him in contempt and in requiring him to pay “legal fees and costs incurred in connection with Mr. Woodham’s conduct and this motion” to purge the contempt. (The contempt order did not award legal fees or costs outside the context of purging the contempt.) As detailed below, we find that the evidence supported the contempt finding but that the requirement that Woodham pay legal fees and costs to purge the contempt was error.

(a) Finding of contempt.

“Trial courts have broad discretion in ruling on a motion for contempt, and the trial court’s ruling will be affirmed on appeal if there is any evidence in the record to support it.” Horn v. Shepherd, 292 Ga. 14, 17 (4) (732 SE2d 427) (2012) (citations and punctuation omitted). Given the conditional nature of the punishment, the trial court found Woodham to be in civil contempt, see In the Interest of J. D., 316 Ga. App. 19, 21 (1) (728 SE2d 698) (2012), and the record contains evidence supporting that finding. “The essence of civil contempt is wilful disobedience of a prior court order[.]” Greene v. Greene, 306 Ga. App. 296, 300 (3) (701 SE2d 911) (2010) (citation omitted). It is undisputed that Woodham disobeyed the directives in the trial court’s July 24 and July 25 orders to return to court to be deposed and provide discovery responses. Woodham offered no evidence that his noncompliance was negligent rather than wilful. Compare In re Patterson, 331 Ga. App. 45-46 (769 SE2d 762) (2015) (reversing contempt award where trial court found that attorney’s failure to attend client’s arraignment due to a calendaring mistake was negligent rather than wilful). Instead, he makes several merit-less arguments for why the trial court should not have found him in contempt, despite his noncompliance. Woodham argues that he had a “legal emergency” requiring him to work on another case, but he points to no authority that a trial court must excuse him from complying with discovery orders for this reason. He argues that at the August 11 hearing the trial court improperly heard argument on the contempt issue before ruling on Woodham’s recusal motion, but given our conclusion that recusal was not warranted in any event, see Division 2, supra, this argument provides no ground for reversal. And he argues that he should not have been compelled to provide post-judgment discovery, but as discussed in Division 3, supra, he consented to the July 25 discovery order. One who simply ignores a court order that he believes is erroneous “does so at his own peril and must assume the risk of being held in contempt.” Edwards v. Edwards, 254 Ga. App. 849, 854 (563 SE2d 888) (2002) (citation and punctuation omitted).

(b) Requirement to pay legal fees and costs to purge contempt.

Woodham argues that the trial court erred in conditioning his purge of the contempt order (and thus his release from incarceration) on payment of $18,862.74 in legal fees and costs to the Authority, because he had not previously been ordered to pay those fees and costs. We are not persuaded by the Authority’s argument that Wood-ham waived his challenge to this provision of the contempt order by failing to attend the contempt hearing, especially where the record reflects that the trial court did not issue the challenged ruling at that hearing. And we agree with Woodham that this particular requirement of the contempt order was improper. Atrial court does not have the authority to make payment of legal fees and costs a condition for purging contempt if those fees and costs had not been awarded in a previous order. Horn, 292 Ga. at 21 (11). “Therefore, we must reverse the contempt order to the extent that it requires [Woodham] to pay the [$18,862.74] in attorney fees [and costs] to purge his contempt.” Id. (citation omitted).

Decided November 5, 2015

Reconsiderations denied December 7, 2015

Woodham Law, John F. Woodham, for appellants.

James E. Dearing, Jr., for appellee.

Given this ruling, we need not address Woodham’s other challenges to the requirement that he pay legal fees and costs to purge the contempt. (Woodham argues that Ga. Const, of 1983, Art. I, Sec. I, Par. XXIII prohibited his incarceration pending the payment of the fees and costs; that there was no evidentiary support for the fees and costs; that the contempt order improperly awarded the fees and costs as a lump sum; and that the consent order did not provide a statutory basis for the award.)

Case No. A15A1035

5. Supersedeas bond.

After Woodham appealed from the contempt order, the trial court granted the Authority’s motion seeking a supsersedeas bond in the amount of the legal fees and costs that the order required to purge the contempt. See OCGA § 5-6-46 (a). We reverse the supersedeas bond order for two reasons. As discussed in Division 4, supra, we have reversed the provision of the contempt order requiring Woodham to pay legal fees and costs. Moreover, to the extent the order imposed the supersedeas bond upon Citizens as well as Woodham, such imposition was improper because Citizens was not a subject of the order on appeal and has not appealed from that order.

Judgment affirmed in part and reversed in part in Case No. A15A1034. Judgment reversed in Case No. A15A1035.

Ellington, P. J., and Dillard, J., concur.


author: Boggs, Judge.

text:
    A15A1048.
    MURPHY v. BCCTC ASSOCIATES, INC. et al.
    (780 SE2d 114)
   Boggs, Judge.

M. Vincent Murphy III appeals from a trial court order denying his motion for summary judgment and granting the partial motion for summary judgment filed by BCCTC Associates, Inc., C & M Management, Inc., and Boston Capital Partners, Inc. (“the plaintiffs”) in this case involving Murphy’s obligations pursuant to a guaranty. For the following reasons, we affirm in part and reverse in part.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.

(Citation and punctuation omitted.) Seki v. Groupon, Inc., 333 Ga. App. 319 (775 SE2d 776) (2015).

So viewed, the evidence showed that Murphy and E. Donald Dressel were the members of 2745 Hapeville Road Partners LLC, which, in turn, was the general partner of Summerdale/AAHFI, L.P., which was the general partner of Summerdale L.P. Murphy and Dressel were also members of Summerdale Advisors, LLC, which was the general partner of Summerdale/AAHFI, L.P. II, which, in turn, was the general partner for Summerdale Partners, L.P. II.

On July 3, 1997, Summerdale/AAHFI, L.P. (the “General Partner”) entered into an “Amended and Restated Agreement of Limited Partnership,” with Boston Capital Corporate Tax Credit Fund VI, L.P. (“BCC VI”), as the limited partner, and BCCC, Inc., as the special limited partner, for the purpose of developing apartment properties that would qualify for low income housing tax credits. On December 15,1997, Summerdale/AAHFI, L.P. II (the “General Partner”), entered into a “Third Amended and Restated Agreement of Limited Partnership” for the same purpose with Boston Capital Corporate Tax Credit Fund XI, L.P. (“BCC XI”) as the limited partner and BCCC, Inc. as the special limited partner. Murphy and Dressel executed a “Limited Guaranty” in conjunction with each of these agreements (hereinafter “the LPAs”) to guaranty the obligations of the General Partners thereunder. The guarantees specifically noted that Murphy was to guaranty the General Partners’ obligations under the LPAs to make certain “ ‘Operating Deficit Loans’ to repurchase the Investment Partnership’s Interest in certain circumstances and to guaranty payment of the Asset Management Fee... as such term[ ] [is] defined in the [LPAs].” And the LPAs likewise provided that the General Partner was obligated to pay Asset Management Fees, and repurchase the Interest of the Investment Partnership upon the occurrence of an event of default, or if the General Partner failed to make Operating Deficit loans. The plaintiffs asserted that an event of default occurred requiring the General Partners to repurchase the Interest of the Investment Partnership when Summerdale Partners, L.P. and Summerdale Partners, L.P II each defaulted on a mortgage note.

In November 2009, the plaintiffs (general partners of the parties to the LPAs or their successors in interest) filed suit against Murphy, Dressel, the General Partners Summerdale/AAHFI, L.P. and Summerdale/AAHFI, L.P. II, asserting claims for breach of contract, enforcement of the guarantees, and specific performance. With regard to the guarantees, the plaintiffs asserted that as guarantors of the obligations of the General Partners, Murphy and Dressel were responsible for unpaid asset management fees and were required to make Operating Deficit Loans following the occurrence of default. Following some discovery, the plaintiffs moved for partial summary judgment “on the issue of liability and damages under the partnership agreements and guaranties.” They “reserved] the issue of recovery for contractual attorneys’ fees under the guaranties for a later determination.”

Nearly a year and a half later, Murphy and Dressel moved for summary judgment on the plaintiffs’ complaint. After a hearing of the argument of counsel, the trial court granted the plaintiffs’ motion and denied the motions filed by Murphy and Dressel. Both Murphy and Dressel appealed to this court, but Dressel withdrew his appeal after agreeing to settle with the plaintiffs.

On appeal, Murphy argues that the plaintiffs’ claims are barred by the Statute of Frauds; Boston Capital and Boston Capital Partners, Inc. do not have standing; the guarantees are too vague to enforce; fact questions remain regarding fiduciary duty, waiver and estoppel; the damage claims are based upon inadmissible hearsay; the plaintiffs have increased the risk to him in violation of OCGA § 10-7-22; fact questions remain regarding the plaintiffs’ alleged damages; and the plaintiffs failed to comply with all preconditions for recovery under the guarantees.

Murphy executed two guarantees: one on July 3, 2007 in favor of Summerdale Partners, L.P, and a second on December 15, 2007 in favor of Summerdale Partners, L.P. II, each entity identified therein as “the Partnership.” The July 3, 2007 guaranty provided in relevant part:

WHEREAS, concurrently with the execution of this Guaranty, Summerdale/AAHFI, L.P, a Georgia limitedpart-nership . . . (the “General Partner”), and BCCC, Inc., a Massachusetts corporation (the “Special Limited Partner”) and Boston Capital Corporate Tax Credit Fund VI, [“BCC VI”] a Limited Partnership, a Massachusetts limited partnership (the “Investment Partnership”), have entered into that certain Amended and Restated Agreement of Limited Partnership of Summerdale Partners, L.P. (the “Agreement”) pursuant to which the General Partner has agreed, inter alia, to make certain Excess Development Cost advances and certain Operating Deficit Loans to repurchase the Investment Partnership’s Interest in certain circumstances and to guaranty payment of the Asset Management Fee and the Development Fee (as such terms are defined in the Agreement), and the Investment Partnership has agreed to contribute capital to the Partnership according to the terms and conditions set forth therein, a true copy of which is attached hereto as Exhibit A, by this reference fully incorporated herein. . . .
Each paragraph six of the guarantees provides:
The Partnership and Guarantors agree that so long as the Obligations hereunder remain outstanding, the Investment Partnership shall be a third party beneficiary under this Agreement and shall be entitled to enforce the provisions hereof as if it were a party hereto. The Guarantors each hereby irrevocably authorize and empower the Investment Partnership, and irrevocably appoint the Limited Partner, the Guarantors’ attorney-in-fact, to demand, sue for, collect and receive every payment or advance due under the obligations and give security therefor and to file and invoke claims and such other proceedings in their names as the Investment Partnership may deem necessary or advisable to enforce the obligations under this Guaranty, provided, however, that the Investment Partnership shall only be entitled to exercise such rights if the Partnership fails to take such action within thirty (30) days after the Investment Partnership makes demand on the Partnership to do so.

(Emphasis supplied.)

Murphy argues that the plaintiffs failed to comply with this provision prior to seeking to enforce the guarantees. Specifically, Murphy contends that under paragraph six, the plaintiffs can only enforce the guarantees against him after demanding that the “Partnerships” (either Summerdale Partners L.P. or Summerdale Partners L.P. II) pursue a claim under the guarantees and the Partnerships fail to do so. The plaintiffs, on the other hand, argue that the first sentence of paragraph six “authorizes the Investment Partnership as third party beneficiaries to bring a direct action to enforce the Guaranties against the Guarantors,” and that the second sentence “does not apply to this lawsuit because the Plaintiffs are seeking to enforce the Guaranties against the Guarantors, and are not suing the Partnership on behalf of the Guarantors.” We disagree.

“Georgia courts strictly construe guaranty agreements in favor of the guarantor. And the guarantor’s liability cannot be extended by implication or interpretation.” (Citations and punctuation omitted.) AAF-McQuay v. Willis, 308 Ga. App. 203, 216 (2) (707 SE2d 508) (2011). The question here is whether the language in paragraph six of the guarantees constitutes a condition precedent. OCGA § 13-3-4 provides that “[a] condition precedent must be performed before the contract becomes absolute and obligatory upon the other party.” And

[w]hile conditions precedent are not favored in interpreting contracts, words such as “on condition that,” “if,” and “provided,” are words of condition, and in the absence of indication to the contrary, the employment of such words in a contract creates conditions precedent. Also, express statements to the effect that a condition is to be construed as a condition precedent are often contained in contracts and are entitled to be so construed in carrying out the intent of the parties.

(Citations, punctuation and footnotes omitted.) General Steel v. Delta Bldg. Systems, 297 Ga. App. 136, 139 (1) (676 SE2d 451) (2009).

The usual rules of contract construction are applicable when determining the meaning and effect of a guaranty, the cardinal rule of which is to ascertain the intention of the parties. The construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, no construction is required, and the court simply enforces the contract according to its clear terms. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. The existence or nonexistence of an ambiguity is a question of law for the court. If the court determines that an ambiguity exists, however, a jury question does not automatically arise, but rather the court must first attempt to resolve the ambiguity by applying the rules of construction in OCGA § 13-2-2.

Id. at 138 (1).

The plain language of paragraph six of the guarantees provides that the Investment Partnership is the third-party beneficiary to the guarantees and entitled to enforce them “as if it were a party hereto.” This paragraph also empowers the Investment Partnership to demand, sue for, collect and receive payment due under the obligations and to file and invoke claims in its name to enforce the obligations under the Guaranty, “provided, however, that the Investment Partnership shall only be entitled to exercise such rights if the Partnership fails to take such action within thirty (30) days after the Investment Partnership makes demand on the Partnership to do so.” (Emphasis supplied.) Therefore, the Investment Partnership is only entitled to bring an action to enforce the General Partners’ obligations under the guaranty, if it makes a demand upon the Partnership to enforce those obligations and the Partnership fails to do so within 30 days. This requirement is unambiguous, and contrary to the plaintiffs’ argument here, this provision does not create an alternative means by which to enforce the guaranty. See, e.g., Sovereign Healthcare, LLC v. Mariner Health Care Mgmt. Co., 329 Ga. App. 782, 786 (1) (b) (766 SE2d 172) (2014) (plain language of limited guaranty must be strictly construed and express terms cannot be extended). Our conclusion is consistent with the provision in each guaranty that “This Guaranty . . . shall inure to the benefit of the Partnership and the Investment Partnership.” (Emphasis supplied.)

“On a motion for summary judgment the plaintiff, as movant, has the burden of establishing the absence or non-existence of any defense raised by the defendant.” (Citations and punctuation omitted.) Greenstein v. Bank of the Ozarks, 326 Ga. App. 648, 649 (1) (757 SE2d 254) (2014). Murphy raised the defense that the plaintiffs cannot enforce the guarantees because a condition precedent was not satisfied, and plaintiffs have not negated this defense. The guaranty cannot be enforced absent evidence of the plaintiffs’ compliance with the condition precedent. See OCGA § 13-3-4; Hall v. Ross, 273 Ga. App. 811, 813-814 (616 SE2d 145) (2005) (court erred in concluding that party paid amounts due under contract where plain reading of contract contained condition precedent before deducting payment). The trial court therefore erred in granting the plaintiffs’ motion for partial summary judgment seeking liability and damages under the guarantees. See City of Fayetteville v. Fayette County, 171 Ga. App. 13, 14 (2) (318 SE2d 757) (1984).

Decided November 19, 2015

Reconsideration denied December 7, 2015.

Johnson & Ward, Stanley E. Kreimer, Jr., for appellant.

Laura E. Stevenson, for appellees.

Murphy’s remaining arguments here are moot in light of our reversal, and we affirm the denial of his motion for summary judgment. While Murphy has shown that the grant of partial summary judgment was in error on the issue of the condition precedent of the guarantees, he has not shown that he is entitled to judgment as a matter of law on this issue as the movant on his separate motion for summary judgment.

Judgment affirmed in part and reversed in part.

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

       Atlanta Affordable Housing for the Future was the limited partner.

       Boston Capital Corporate Tax Credit Fund VI, L.P. was the limited partner.

       Atlanta Affordable Housing for the Future was the limited partner.

       Boston Capital Corporate Tax Credit Fund X, L.P. was the limited partner.

       The December 15, 2007 guarantee was in favor of Summerdale Partners, L.P. II and named Boston Capital Corporate Tax Credit Fund X, L.P. (“BCC X”) as the “Investment Partnership.”


author: ELLINGTON, Presiding Judge.

text:
    A15A1276.
    A15A1277.
    THE CORPS GROUP et al. v. AFTERBURNER, INC. LOHRENZ v. AFTERBURNER, INC.
    (779 SE2d 383)
   ELLINGTON, Presiding Judge.

Appellants John Borneman, Kyle Howlin, John Underhill, and Carey Lohrenz are former fighter pilots who, after working for the appellee, Afterburner, Inc., a military aviation-themed business consulting firm, formed their own competing military aviation-themed business consulting firm, appellant The Corps Group, and began advising companies on how to apply military battle methodology to business planning and development. Afterburner sued The Corps Group and the individual appellants, alleging, inter alia, that they had infringed on Afterburner’s trademarks and trade dress in violation of the Lanham Act. A Forsyth County jury returned a verdict finding that each of the appellants had intentionally infringed on Afterburner’s trade dress and four of its trademarks and awarded Afterburner money damages. Thereafter, the trial court entered a final judgment permanently enjoining the appellants from using Afterburner’s trade dress and trademarks. In response to Lohrenz’s motion for judgment notwithstanding the verdict and extraordinary motion for a new trial, the trial court granted a new trial only as to the apportionment of monetary damages among The Corps Group and the individuals. The appellants contend, inter alia, that the trial court erred in denying their motions for a directed verdict and for judgment notwithstanding the verdict as to Afterburner’s Lanham Act claims because the evidence was insufficient to support a finding that they had infringed on Afterburner’s trademarks or trade dress. For the following reasons, we agree and reverse.

“The standard for granting a directed verdict [and] a judgment notwithstanding the verdict are the same.” (Citation and punctuation omitted.) South Fulton Medical Center v. Poe, 224 Ga. App. 107, 108 (1) (480 SE2d 40) (1996).

[O]n appeal from a trial court’s rulings on motions for directed verdict and judgment notwithstanding the verdict, we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments notwithstanding the verdict are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Footnote omitted.) Vol Repairs II v. Knighten, 322 Ga. App. 416, 417 (745 SE2d 673) (2013). See also Moore v. Singh, 326 Ga. App. 805, 809 (1) (755 SE2d 319) (2014). Viewed in this light, the evidence presented at trial shows as follows.

Afterburner has been offering business consulting services since 1996. Afterburner’s founder and CEO, James Murphy, is a former Air Force F-15 fighter pilot. After leaving the military, he decided to continue studying military mission-planning methods and to apply those methods to business development. In addition to applying what he had learned from his own military training and experience, Murphy obtained a license to teach a system called the “Prometheus Process,” which was developed by retired Air Force Colonel John Warden, the owner of Venturist, Inc. The Prometheus Process is a military strategic planning model designed to help businesses and organizations define and achieve their goals. Murphy testified that, early on, Afterburner’s business consulting model had many elements of the Prometheus Process incorporated within it. Murphy eventually terminated its licensing agreement with Venturist, Inc., and streamlined Afterburner’s business consulting model.

Murphy described the Afterburner brand as “unique in the consulting space.” It offers motivational keynote speakers, seminars and workshops that feature team-building exercises, corporate coaching, and leadership training. Afterburner focuses less on the long-term strategic planning of the Prometheus Process and more on teaching business people how to execute their goals through a continuous-improvement cycle that Murphy illustrated in a model using the elements: “Plan, brief, execute, debrief, win, lessons learned.” Murphy called this model the “Flawless Execution” model, and it became a key component of Afterburner’s marketing. Afterburner developed a graphic illustrating its model, a single circle containing a spiral of arrows linking the words “plan, debrief, execute, debrief, win!” and used the graphic as a logo on its marketing materials and as a teaching tool in its presentations. The Flawless Execution model involved teaching business people how to avoid “task saturation” — that is, being overburdened by too many tasks — and how to develop “execution rhythm” — that is, an accountability process involving timely debriefings so that people will learn from their mistakes. Afterburner registered its circular logo and the phrases “Flawless Execution” and “task saturation” with the U. S. Patent and Trademark Office. It also contended that it had common law trademark rights in the phrase “execution rhythm.”

Afterburner also claimed that it had the exclusive right to use its “trade dress,” what Murphy described as a fighter pilot motif that pervaded all aspects of its business consulting services. Murphy testified that Afterburner’s use of real pilots wearing standard-issue, sage green flight suits during business consulting presentations constituted the most relevant features of Afterburner’s trade dress. Afterburner also decorated its seminars like military bunkers and squadron rooms, often draping conference rooms with parachutes and camouflage netting. It employed loud music, sirens, and theatrical mock enemy attacks. During consulting exercises, Afterburner often engaged clients in military exercises, using maps, checklists, and other military-style mission-planning paraphernalia. Clients sometimes even wore flight helmets during workshops. Murphy believed that Afterburner had the exclusive right to use fighter pilot and jet plane imagery during its seminars, on its website, and in its brochures and other marketing materials.

John Borneman, the CEO of The Corps Group, testified that when he formed his company in 2008, he knew that it would compete with Afterburner. He testified that he intended to start a Marine Corps aviation-themed business consulting group using a modified “Org-X” version of the Prometheus Process, as well as his own personal experience, in teaching clients how to apply military mission-planning principles to business development. Toward that end, he obtained permission to use the Prometheus Process from Venturist, Inc. Although The Corps Group offered business consulting services that were similar to Afterburner’s, like keynote speakers and team-building seminars and workshops, Borneman testified that its primary focus was on establishing long-term, strategic business planning relationships with clients.

When Borneman was forming The Corps Group, Lohrenz researched their competitors. Lohrenz testified that several individuals and companies offered similar military aviation-themed business consulting services, including Boston Consulting Group, CVM Insights, Mission Excellence, Rob Waldman, Fighter Pilots USA, Mach2, and Check-6. These companies commonly used images of fighter planes, pilots in flight suits, and military jargon (including the plan-execute-debrief model) in their marketing. One of the consulting services had even discussed how the military uses “a concept of flawless execution.”

In using the Prometheus Process in its business consulting, The Corps Group’s presenters discussed, among other things, the military’s plan-execute-debrief model, as well as the concepts of “task overload” and “execution cadence.” Borneman testified that, although he and his business associates have discussed with clients the phenomenon of “task saturation” — military jargon describing the condition of having too much to do in a short period of time or with inadequate resources — The Corps Group never used the phrase as a slogan for a product or a service. Rather, its marketing contained the phrase “task overload.” Also, it did not use the phrases “flawless execution” or “execution rhythm.” Rather, when marketing or discussing the military plan-execute-debrief model, it used the phrases “Corps execution,” “leaders in business execution,” and “execution cadence.” It illustrated these principles in a diagram depicting three circles in a row, each containing the words “plan, do, debrief” and arrows signifying the cyclical nature of the process. The diagram was used in a “white paper” — a teaching tool •— but not in its marketing materials. Borneman testified that these concepts, terms, and processes are part of the Prometheus Process — which is “at the heart of what [The Corps Group does]” — and were not taken from Afterburner. Further, both The Corps Group’s “execution cadence” and Afterburner’s “execution rhythm” are derived from the term “battle rhythm,” a military term used to describe the process of determining the appropriate tactical response to highly changeable battlefield conditions. One of Afterburner’s former employees testified that the “mission, brief, plan, execute, after-action review, lessons learned” process is inherently part of military culture, a process he routinely experienced during his Navy aviation career. Part of the process is also sometimes taught as the “OODA Loop,” for “observe, orient, decide, act.”

Witnesses for The Corps Group also testified that, other than employing fighter pilots as business consultants and using fighter pilot imagery in their marketing materials, The Corps Group’s presentation style differed from Afterburner’s. They used none of the theatrical stage settings that Afterburner used during its seminars — no bunkers, no camouflage netting, no theatrical enemy attacks or loud music. They wore their flight suits on stage very rarely, and typically only when a client requested that they do so. They did, however, engage their clients in military-themed exercises, but those exercises were not owned by Afterburner. The Corps Group stressed a Marine Corps theme as opposed to an Air Force theme. And it used its own trade name and distinctive logo on its marketing materials and presentation materials.

The record shows that both Afterburner and The Corps Group market their services to sophisticated business executives, many of whom represent “Fortune 500” companies. Afterburner markets its services primarily through an agent, the International Speakers Bureau. The Corps Group rarely used an agent; rather, it relied on client referrals. Afterburner did not identify any client or potential client who had been confused by the parties’ trademarks or by the use of military aviation-themed trade dress. Afterburner’s own booking agent did not identify anyone who had been confused as to the source of the services offered by either The Corps Group or by Afterburner.

1. Afterburner’s Trademark Claims. The jury found that The Corps Group violated the Lanham Act by infringing upon Afterburner’s registered trademarks “task saturation,” “flawless execution,” and its circular logo containing the words “plan, brief, execute, debrief, win!” It also found that The Corps Group infringed upon Afterburner’s common law trademark “execution rhythm.” The Corps Group and the individual appellants argue that they were entitled to a defense judgment because the evidence shows that Afterburner’s trademarks are weak, that the parties’ respective marks are sufficiently dissimilar, that there was no intent to infringe, and that no client or potential client was confused by any similarity in the parties’ trademarks.

The Lanham Act defines a trademark as “any word, name, symbol, or device, or any combination thereof” that is used by a person “to identify and distinguish his or her goods... and to indicate the source of the goods[.]” See 15 USC § 1127. The Act ensures that a trademark can serve the function of distinguishing one business’s goods or services by prohibiting others from using a similar mark in a way that is “likely to cause confusion” among consumers (that is, by making consumers wonder which business created or offered which products or services). See 15 USC § 1125 (a) (1) (A).

Under the Lanham Act, 15 USC § 1114 (1), a defendant is liable for infringement, if, without consent, he uses “in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark” which “is likely to cause confusion, or to cause mistake, or to deceive.” Thus, to prevail [on a civil infringement claim brought pursuant to 15 USC § 1125], a plaintiff must demonstrate (1) that its mark has priority and (2) that the defendant’s mark is likely to cause consumer confusion.

(Citations omitted.) Frehling Enterprises v. Intl. Select Group, 192 F3d 1330, 1335 (III) (11th Cir. 1999). “Likelihood of confusion means probable confusion rather than mere possible confusion.” Atlanta Allergy & Asthma Clinic v. Allergy & Asthma of Atlanta, 685 FSupp.2d 1360, 1376 (B) (2) (N.D. Ga. 2010). Trademark rights for unregistered marks may be gained in the common law through actual prior use in commerce. Tally-Ho, Inc. v. Coast Community College Dist., 889 F2d 1018, 1022 (II) (A) (11th Cir. 1990).

The appellants do not dispute that Afterburner’s marks have priority; rather, they contend they were entitled to a judgment in their favor because Afterburner failed to carry its burden of proving that a likelihood of consumer confusion exists between the parties’ trademarks. Indeed, the “central inquiry” in an infringement case is “whether there is a likelihood of confusion’ on the part of consumers between the names and symbols used by the two parties.” (Footnote omitted.) Freedom Sav. & Loan Assn. v. Way, 757 F2d 1176, 1179 (I) (11th Cir. 1985). See also John H. Harland Co. v. Clarke Checks, 711 F2d 966, 972 (III) (11th Cir. 1983) (“[T]he critical question in most [infringement actions] is whether there is a likelihood of confusion, mistake, or deception between the registered mark and the allegedly infringing mark.”) (citation and footnote omitted).

The Eleventh Circuit has adopted a seven-factor test to determine whether the likelihood of consumer confusion exists in an infringement action. The factors include: (1) the strength of the plaintiff’s mark, (2) the similarity of the marks, (3) the similarity of the goods or services the marks represent, (4) the similarity of the parties’ retail outlets and customers, (5) the similarity of advertising media, (6) the defendant’s intent, and (7) evidence of actual confusion. Frehling Enterprises v. Intl. Select Group, 192 F3d at 1335 (III). “The extent to which two marks are confusingly similar cannot be assessed without considering all seven factors to ensure that the determination is made in light of the totality of the circumstances.” Wesco Mfg. v. Tropical Attractions of Palm Beach, 833 F2d 1484, 1488 (II) (C) (11th Cir. 1987). However, of the seven factors, “the [strength] of [the] mark and the evidence of actual confusion are the most important.” (Citation omitted.) Frehling Enterprises v. Intl. Select Group, 192 F3d at 1335 (III). See also Suntree Technologies v. Ecosense Intl., 693 F3d 1338, 1346 (III) (B) (1) (11th Cir. 2012) (accord).

In performing our review of whether there exists a likelihood of consumer confusion in a trademark infringement case under the Lanham Act, this Court must consider and evaluate the evidence supporting each of the Frehling factors and consider the weight to be accorded to each of the factors under the totality of the circumstances. See Custom Mfg. and Engineering v. Midway Svcs., 508 F3d 641, 649 (III) (11th Cir. 2007) (“[Application of the Frehling factors entails more than the mechanistic summation of the number of factors on each side; it involves an evaluation of the ‘overall balance.’ ”) (citations omitted).

(a) Strength of the trademarks. “The strength of a trademark is essentially a consideration of distinctiveness. The stronger (i.e., the more distinctive) the mark, the greater the scope of protection accorded it, and the weaker the mark, the less trademark protection it receives.” (Citations and punctuation omitted.) Trilink Saw Chain v. Blount, Inc., 583 FSupp.2d 1293, 1310 (B) (1) (a) (N.D. Ga. 2008). See also Frehling Enterprises v. Intl. Select Group, 192 F3d at 1335 (III) (accord).

The strength of a trademark depends on the mark’s classification and the degree to which third parties use the mark or components thereof. Trademarks may be classified, in descending order of strength, as (1) arbitrary or fanciful marks, which bear no logical relationship to the product that they represent, (2) suggestive marks, which refer to some characteristic of the product that they represent, but for which a leap of imagination is required to get from the mark to the product, (3) descriptive marks, which identify a characteristic or quality of the product they represent, and (4) generic marks.

(Citations omitted.) Alaven Consumer Healthcare v. DrFloras, LLC (Case No. 1:09-CV-705-TWT, N.D. Ga., decided February 4, 2010) (2010 U.S. Dist. LEXIS 9366, *4-5 (III) (A) (1)). See also Welding Svcs. v. Forman, 509 F3d 1351, 1357-1358 (III) (11th Cir. 2007) (accord).

Because Afterburner’s registered trademarks have a presumption of validity, see 15 USC § 1057 (b), the trademarks are presumed distinctive rather than merely descriptive; however, that presumption may be rebutted. See Welding Svcs. v. Forman, 509 F3d at 1357 (III), n. 3. (“Registration establishes a rebuttable presumption that the marks are protectable or ‘distinctive.’ ”) (citations omitted); Scientific Applications v. Energy Conservation Corp. of America, 436 FSupp. 354, 360 (N.D. Ga. 1977) (accord).

In this case, The Corps Group presented evidence rebutting the presumption that the registered trademarks are distinctive by showing that Afterburner’s marks describe processes and concepts taught both in the military and in military-themed business consulting. For example, it does not take a leap of imagination to deduce that “flawless execution” as used in the context of business consulting describes a process for successfully performing a business plan. All of Afterburner’s marks tend toward the descriptive end of the trademark classification spectrum.

Further, the evidence shows that the plan-execute-debrief process, as well as the terms “execution,” “task saturation” and “battle rhythm” are used in Air Force, Marine Corps, and Navy aviation. Thus, components of Afterburner’s trademarks are common military concepts, processes, or terms. Also, these processes and concepts are not unique to any one military-themed business consulting group. Venturist, Inc.’s Prometheus Process predated Afterburner’s “Flawless Execution” model. It uses the same core processes and concepts and many of the same military terms. The Corps Group demonstrated that other business consulting groups also teach these concepts and processes and use components of the same terms in their marketing, and that at least one other consultant used the term “flawless execution.” This fairly widespread third-party use of the military jargon which makes up components of Afterburner’s trademarks weakens them and diminishes the level of protection afforded the marks. Finally, Afterburner presented no evidence demonstrating that the trademarks at issue had become so associated with it that the marks had acquired secondary meaning. The record evidence demonstrates that Afterburner’s trademarks are weak; consequently, this factor weighs in favor of The Corps Group.

(b) Similarity between the marks. To assess the similarity of the trademarks, courts “compare [ ] the marks and consider [ ] the overall impressions that the marks create, including the sound, appearance, and manner in which they are used.” (Citation omitted.) Frehling Enterprises v. Intl. Select Group, 192 F3d at 1337 (III) (2). “However, courts may still view the component parts of conflicting composite marks as a preliminary step on the way to an ultimate determination of probable customer reaction to the conflicting composites as a whole.” (Citation and punctuation omitted.) Alaven Consumer Healthcare v. DrFloras, LLC, supra, 2010 U.S. Dist. LEXIS 9366, *7 (III) (A) (2). See also Sun Banks of Fla. v. Sun Fed. Sav. & Loan Assn., 651 F2d 311, 316 (II) (A) (5th Cir. 1981) (separately analyzing the strength and similarity of the prefix “sun”).

There are some obvious similarities between the appearance, sound and meaning of the parties’ contested marks. The marks “Flawless Execution” and “Corps execution” are similar, but that similarity is due, in large part, to the shared word “execution,” which is a word that describes, in military parlance, getting the job done. “Task overload” and “task saturation” are similar phrases, but, again, that similarity is due to the shared word “task,” which describes a job to do, and the shared idea of having too much to do. The same is true of the phrases “execution rhythm” and “execution cadence.” The marks share a common descriptive word, “execution,” the words “rhythm” and “cadence” are synonyms, and both phrases are derivative of the military phrase “battle rhythm.” And, finally, Afterburner’s circular logo containing the words “plan, brief, execute, debrief, win!” is similar to The Corps Group’s diagram (which was not used in The Corps Group’s marketing) containing three linked circles each containing the words “plan, do, debrief.” The similarity, though, derives from the fact that both images illustrate the cyclical process of military mission planning that aims for continuous improvement. Thus, although the evidence shows that the contested marks have common elements (“task,” “execution,” “plan,” “debrief” and the cyclical nature of a process), those elements are highly descriptive (and possibly even generic) of terms and processes used both in the military and in the field of military-themed business consulting.

Given the presence of these common descriptive elements in the contested marks, even small variations between them are enough to distinguish the marks, particularly in the context of business consulting services where the common elements are understood to describe the services rendered. See, e.g., John H. Harland Co. v. Clarke Checks, 711 F2d at 975-976 (III) (B) (finding only nominal similarity between the marks “Memory Stub” and “Entry Stub” in the context of bank check products given the presence of the generic word “stub”); Beech-Nut, Inc. v. Warner-Lambert Co., 346 FSupp. 547, 549 (S.D. N.Y. 1972) (holding that “Breath Pleasers” did not infringe on “Breath Savers” in part because, in the context of breath-freshening candies, “where the key word [breath] is free as air, small variations are likely to make enough of a difference to ward off charges of infringement”) (citations omitted); Alaven Consumer Healthcare v. DrFloras, LLC, supra, 2010 U.S. Dist. LEXIS 9366, *9 (III) (A) (2) (“Although both marks incorporate plants, the similarities are insufficient to create confusion, particularly among herbal supplements.”). Thus, this factor weighs in favor of The Corps Group.

(c) Similarity of the parties’ services, clients, and advertising methods. Both Afterburner and The Corps Group are similar in that they sell military aviation-themed business consulting services. They do not sell a product in a retail outlet; rather they market their services to business executives, the majority of whom are sophisticated and selective. Because the consumers of the parties’ business consulting services are making a decision to spend thousands of dollars for a specialized service, there is less of a likelihood of confusion. See Oreck Corp. v. U.S. Floor Sys., 803 F2d 166, 173-174 (III) (8) (5th Cir. 1986) (reasoning that because purchasers were “buying for professional and institutional purposes at a cost in the thousands of dollars, they are virtually certain to be informed, deliberative buyers”) (citation omitted). The parties also market those services in a number of ways, including websites and referrals. However, the evidence adduced showed that the parties rely primarily on different marketing strategies, that they seek different types of consulting relationships, and that they have different consulting styles. For example, The Corps Group focuses on developing long-term client relationships using the more detailed Prometheus Process whereas Afterburner focuses on training businesses how to execute its business plans. Afterburner uses the services of a booking agent; The Corps Group does not. Afterburner has a highly theatrical style complete with military props; The Corps Group does not. Given this evidence, these factors weigh in favor of The Corps Group.

(d) The appellants’ intent. It is undisputed that The Corps Group and the individually named appellants intended to compete with Afterburner. But the Lanham Act does not protect against competition. Rather, it protects against unfair competition in the form of customer confusion caused by the infringing use of trademarks. Thus, for this factor to weigh against the appellants, Afterburner must show that they used its trademarks with the intention of deriving a benefit from Afterburner’s business reputation or that The Corps Group was intentionally blind to the confusion between the parties’ trademarks. Frehling Enterprises v. Intl. Select Group, 192 F3d at 1340 (III) (6). Bad faith in the adoption and use of a trademark normally involves the imitation of packaging material and the use of similar marketing and distribution methods or other efforts by a party to “pass off” its product as that of another. See Amstar Corp. v. Domino’s Pizza, 615 F2d 252, 263 (III) (6) (5th Cir. 1980).

The evidence shows that the individual appellants were aware of Afterburner’s trademarks, having been employed by the company with whom they now compete. While the jury may infer that there was an intent to imitate their competitors, the direct evidence does not support a finding that the appellants attempted to pass off The Corps Group’s services as those of Afterburner. Borneman testified that he was sensitive to the fact that he had a nonsolicitation agreement with Afterburner; consequently, he advised his clients of that relationship. Further, he and the appellants made efforts to distinguish The Corps Group’s services from Afterburner’s by adopting a unique logo and business style. “[A] defendant’s use of its own well-known mark in conjunction with the specific mark of its product can serve to ensure that there arises no consumer confusion about the source of that product.” (Citations omitted.) Giorgio Beverly Hills v. Revlon Consumer Products Corp., 869 FSupp. 176, 182 (A) (2) (S.D. N.Y. 1994).

The appellants also testified that the concepts and terms that they were using in their marketing and seminars came from their own military experience and from the Prometheus Process, not from Afterburner. The appellants’ testimony reveals that they had a good faith basis to use those terms and concepts and the diagrams that illustrated them. Moreover, the evidence shows that the appellants modified their terms, processes, and diagrams to distinguish them from those used by Afterburner. Finally, they did not believe that Afterburner had the exclusive right to market a military aviation-themed business consulting service, and that belief was correct. See Division 2, infra. Given this evidence, this factor weighs in favor of The Corps Group.

(e) Actual confusion. The Eleventh Circuit has held that “[a]ctual consumer confusion is the best evidence of likelihood of confusion.” AmBrit, Inc. v. Kraft, Inc., 812 F2d 1531, 1543 (I) (C) (7) (11th Cir. 1986) (emphasis supplied). “Short-lived confusion or confusion of individuals casually acquainted with a business is worthy of little weight while confusion of actual customers of a business is worthy of substantial weight.” Caliber Auto. Liquidators v. Premier Chrysler, Jeep, Dodge, 605 F3d 931, 936 (III) (A) (11th Cir. Ga. 2010). See also Alliance Metals, Inc. of Atlanta v. Hinely Industries, 222 F3d 895, 908 (III) (B) (11th Cir. 2000) (focusing on confusion of industrial aluminum buyers — including the trademark holder’s customers — in the context of an infringement dispute between aluminum distributors).

Afterburner did not present any evidence of actual consumer confusion, despite the fact that the two companies had been competing with each other for six years and had each given hundreds of presentations, indicating that there was little likelihood of actual consumer confusion. See Aktiebolaget Electrolux v. Armatron Intl., 999 F2d 1, 4 (1st Cir. 1993) (That “Weed Eaters” and “Leaf Eaters” coexisted on the market for six years with little actual confusion strongly suggested little likelihood of confusion.). In fact, during closing argument, Afterburner’s trial counsel all but conceded that there was no evidence of actual confusion; stating: “[W]hile I’d love to have all sorts of evidence of actual confusion to make my case a lot easier, I’m not required to have it[.]” The lack of evidence of actual consumer confusion weighs in favor of The Corps Group.

Because all of these factors weigh in favor of The Corps Group, there is no need to balance them. Indeed, Afterburner failed to adduce evidence over which reasonable persons could differ on the issue of the likelihood of consumer confusion between its trademarks and The Corps Group’s competing marks. The evidence on this issue is unambiguous and without conflict. This evidence, and all reasonable deductions from it, demands a verdict in favor of The Corps Group. Consequently, the trial court’s order denying The Corps Group’s motion for a directed verdict and motion for a judgment notwithstanding the verdict is clearly erroneous and must be reversed.

2. Afterburner’s Trade Dress Claims. Afterburner alleged that The Corps Group infringed on its unregistered trade dress and that the infringing use constituted unfair competition. The appellants contend that Afterburner failed to present evidence demonstrating that it had a distinctive trade dress apart from an unprotectable style, theme, or idea.

Section 43 (a) (1) of the LanhamAct, which protects unregistered trademarks, also extends protection to unregistered trade dress. See Wal-Mart Stores v. Samara Bros., Inc., 529 U. S. 205, 209-210 (II) (120 SCt 1339, 146 LE2d 182) (2000). See also Original Appalachian Artworks v. Toy Loft, 684 F2d 821, 831 (III) (11th Cir. 1982). “Trade dress” is defined as “the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.” (Punctuation and footnote omitted.) AmBrit, Inc. v. Kraft, Inc., 812 F2d at 1535 (I). Most trade dress infringement actions involve the packaging, design, or labeling of goods. John H. Harland Co. v. Clarke Checks, 711 F2d at 980 (IV). However, trade dress protection also extends to the marketing of services. See Pure Power Boot Camp v. Warrior Fitness Boot Camp, 813 FSupp.2d 489, 537 (VIII) (S.D. N.Y. 2011) (“The term ‘trade dress’ has a broad meaning and is defined as the ‘total image’ of a business, good, or service ‘as defined by its overall composition and design, including size, shape, color, texture, and graphics.’ ”) (citation and footnote omitted). “Trade dress generally falls into one of two categories: product packaging or product design.” (Citation and footnote omitted.) Id. It is difficult to fit a trade dress infringement claim involving the marketing and presentation style of business consulting services into one of these two classifications; however, based on the way that Afterburner discusses its trade dress, we conclude that it is appropriate to analyze its trade dress as a species of product packaging. See id. In such cases, “[t]he touchstone test for a violation of § 43(a) [of the Lanham Act] is the likelihood of confusion’ resulting from the defendant’s adoption of a trade dress similar to the plaintiff’s.” Original Appalachian Artworks v. Toy Loft, 684 F2d at 831-832 (III).

Additionally, although trade dress is the “total image” of a product, we note plaintiffs are required to articulate the specific items alleged to constitute that image.

Without such a precise expression of the character and scope of the claimed trade dress, litigation will be difficult, as courts will be unable to evaluate how unique and unexpected the design elements are in the relevant market. Courts will also be unable to shape narrowly-tailored relief if they do not know what distinctive combination of ingredients deserves protection. Moreover, a plaintiff’s inability to explain to a court exactly which aspects of its product design(s) merit protection may indicate that its claim is pitched at an improper level of generality, i.e., the claimant seeks protection for an unprotectable style, theme or idea.

(Citation and punctuation omitted.) Abercrombie & Fitch Stores v. Amercian Eagle Outfitters, 280 F3d 619, 634-635 (III) (B) (6th Cir. 2002).

Afterburner’s trade dress claim fails because the evidence does not support a finding of distinctiveness or that there exists any likelihood of consumer confusion between Afterburner’s trade dress and that of The Corps Group. Afterburner contends, essentially, that its trade dress is its military aviation-themed approach to business consulting. Murphy testified that Afterburner’s use of real pilots wearing standard-issue, sage green flight suits during business consulting presentations constituted the most relevant features of Afterburner’s trade dress. Afterburner also argues that it has the exclusive right to use, in the context of business consulting services, images of fighter pilots, flight suits, and jet planes on its website, brochures, and other marketing materials because these items distinguished the company’s services. Afterburner also contends that its use of its theatrical props — e.g., bunkers, charts and maps, loud music, and camouflage netting, etc. — is also protected trade dress.

The evidence shows that The Corps Group rarely used flight suits in its presentations and it did not use any of Afterburner’s theatrical stage props. Rather, The Corps Group, like Afterburner, used fighter pilot imagery, concepts, themes, and processes. Further, the record reflects that Afterburner failed to specify which features of its jet fighter imagery are uniquely part of its trade dress, nor did it compare those specific features to the fighter-pilot imagery that The Corps Group used. And to the extent that The Corps Group used military-styled exercises (including maps, charts, and checklists) in its presentations, the record does not establish that the exercises were developed by Afterburner or that the materials used mimicked in any significant way Afterburner’s exercises. Instead, the evidence shows that Afterburner and The Corps Group (as well as many other business consulting groups) offered clients business consulting services based on military aviation planning methodologies and, in doing so, used imagery, processes, and concepts that referenced military aviation. In short, the evidence shows that Afterburner was seeking to protect a fighter-pilot marketing theme as opposed to a distinctive trade dress.

A marketing theme may be executed in a number of ways, whereas trade dress is unique. Afterburner enjoys trade dress protection with respect to its own distinctive combination of military elements and concepts, but not to the general elements and concepts themselves. See, e.g., Pure Power Boot Camp v. Warrior Fitness Boot Camp, 813 FSupp.2d at 543 (B) (2) (“Pure Power, as a fitness facility, is not entitled to the exclusive use of fixed obstacles and a military theme — which may be executed in any number of ways. Pure Power enjoys protection only with respect to its own distinctive blend and manner of implementing these elements and concepts, and that implementation is quite different from the look and feel’ of Warrior Fitness.”).

Decided November 4, 2015

Reconsiderations denied December 7, 2015

Morgan Lewis & Bockius, William F. Nelson, for appellants (case no. A15A1276).

McKenna Long & Aldridge, S. Derek Bauer, Jeffrey R. Baxter, for appellant (case no. A15A1277).

In this case, the record shows that The Corps Group and Afterburner both used fighter pilot imagery and concepts derived from military aviation, but that they applied them in different ways. Further, Afterburner failed to articulate, with any clarity, the way these military aviation-themed marketing components were put together in a unique way that set them apart from any other military aviation-themed consulting business. “The level of generality at which a trade dress is described, as well as the fact that a similar trade dress is already being used by manufacturers of other kinds of products, may indicate that that dress is no more than a concept or idea to be applied to particular products.” Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F3d 27, 33 (B) (1) (2d Cir. 1995):Because Afterburner failed to carry its burden of showing that it had a distinctive trade dress as opposed to a marketing theme, it was not entitled to trade dress protection under the Lanham Act. Consequently, the trial court erred in denying the appellants’ motion for a directed verdict and motion for a judgment notwithstanding the verdict as to these claims.

3. Because we reverse the judgment in favor of Afterburner, the trial court’s injunction, which was made a part of the final judgment, stands vacated.

Judgment reversed.

Dillard and McFadden, JJ., concur.

Arnall Golden Gregory, Stephen M. Dorvee, Theresa A. Kananen, Lauren M. Gregory, for appellee.

       Lohrenz brought a separate appeal in Case No. A15A1277. She raised many of the same claims of error as those raised by the appellants in Case No. A15A1276. Because these cases involve the same parties, the same underlying lawsuit and judgment, and the same facts, we consolidate these cases.

       Afterburner also brought other federal and state law claims, and some of the individual appellants filed counterclaims. Most of those other claims resulted in a judgment for the claimant, and none is the subject of a claim of error on appeal.

       Afterburner averred in its amended complaints that it had superior rights to use various trade or service marks and trade dress under the Federal Trademark Act of 1946 (15 USC § 1051 et seq., also known as the Lanham Act).

       The appellants also contend that the injunction is fatally defective given its lack of specificity, that the trial court failed to properly instruct the jury as to assessing personal liability for the alleged infringement, and that the award of damages was excessive. Given our holding in these consolidated cases, these claims of error are moot.

       Afterburner asserts that its trademarks for “flawless execution” and “task saturation” are incontestible, but it provides no record citation to the requisite supporting evidence. A mark becomes incontestible when, five years after registering the mark, the holder files the affidavit required by 15 USC § 1065. Once a mark has become incontestable, its validity is presumed, subject to certain enumerated defenses. Id. Further, once a mark has achieved incontestable status, its validity cannot be challenged on the grounds that it is merely descriptive, even if the challenger can show that the mark was improperly registered initially. Id. See also Corbitt Mfg. Co. v. GSO America, 197 FSupp.2d 1368, 1375 (III) (A) (1) (a) (1) (S.D. Ga. 2002) (“Under the ‘type of mark’ factor, an incontestable mark is presumed to be at least descriptive with secondary meaning.”) (citation and punctuation omitted). The trial record contains exhibits showing that these trademarks were registered. However, the record does not show that Afterburner filed the requisite affidavits and was thereafter notified by the Director of the U. S. Patent and Trademark Office that the affidavits were received. See Homes & Land Affiliates v. Homes & Loans Magazine, 598 FSupp.2d 1248, 1261 (III) (A) (1), n. 10 (M.D. Fla. 2009) (Plaintiff failed to provide the court with proof of filing the required affidavit.). Consequently, we do not assume that the marks are incontestible.

       Afterburner refers to its marks interchangeably as “trademarks” or “service marks.” While a “trademark” identifies and distinguishes a product, a “service mark” identifies and distinguishes a service. See, e.g., Safeway Stores v. Safeway Discount Drugs, 675 F2d 1160, 1163 (II) (11th Cir. 1982); Breakers of Palm Beach v. Intl. Beach Hotel Dev., 824 FSupp. 1576, 1579, n. 2 (S.D. Fla. 1993). Courts conduct the same analysis for service mark and trademark infringement claims. Tana v. Dantanna’s, 611 F3d 767, 772, n. 3 (11th Cir. 2010) (“The infringement analysis is the same under both standards and courts thus treat the two terms as interchangeable in adjudicating infringement claims.”) (citation and punctuation omitted). Consequently, we do not address whether the marks are service marks or trademarks.

       Lohrenz testified that she displayed the phrase “task saturation” once during a day-long seminar. It was a concept noted on a Power Point slide during a discussion of “one of the things that can happen to affect your ability to execute [the mission].”

       This section defines service marks similarly.

       Trademark law under the Lanham Act serves two essential functions. It aids consumers by assuring them that products with the same trademark come from the same source and it protects the economic investments of the trademark owner. See Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 163-164 (II) (115 SCt 1300, 131 LE2d 248) (1995).

       For examples of descriptive marks, see In re Nett Designs, Inc., 236 F3d 1339, 1342 (II) (Fed. Cir. 2001) (“The Ultimate Bike Rack” was held to be a laudatory descriptive phrase.); Spraying Systems Co. v. Delavan, Inc., 975 F2d 387, 395 (III) (B) (7th Cir. Ill. 1992) (In the context of spray nozzle products, the prefix “-JET” was considered descriptive.); Bernard v. Commerce Drug Co., 964 F2d 1338, 1341 (2d Cir. 1992) (“Arthriticareis a descriptive trademark in the context here presented. Clearly, the mark describes the problem or condition (arthritis) that the trademarked product is designed to remedy or otherwise deal with.”) (citations omitted); G. Heileman Brewing Co. v. Anheuser-Busch, Inc., 873 F2d 985, 996 (III) (B) (7th Cir. 1989) (“LA, as applied to beer, stands for and describes low alcohol.”); Schmidt v. Quigg, 609 FSupp. 227, 231 (E.D. Mich. 1985) (“Honey Baked Ham” is a descriptive mark that has acquired a secondary meaning.).

       “The demarcation between each category [of trademark] is more blurred than it is definite.” (Footnote omitted.) Coach House Restaurant v. Coach & Six Restaurants, 934 F2d 1551, 1559 (2) (b). See also Royal Palm Properties v. Premier Estate Properties (Case No. 10-80232-CV-COHN, S.D. Fla., decided April 15, 2010) (2010 U.S. Dist. LEXIS 47971, *5-6 (II) (B)) (accord).

       See Nutri/System v. Con-Stan Indus., 809 F2d 601, 605 (B) (1) (9th Cir. 1987) (finding “Nutri/System” to be a weak mark because “those in the food and health products field commonly use ‘Nutri’ as a prefix”); Sun Banks of Fla. v. Sun Fed. Sav. & Loan Assn., 651 F2d 311, 316 (II) (A) (5th Cir. 1981) (“[W]e find the extensive third-party use of the word ‘Sun’ impressive evidence that there would he no likelihood of confusion between Sun Banks and Sun Federal”) (citations omitted); Alaven Consumer Healthcare v. DrFloras, LLC (Case No. 1:09-CV-705-TWT, N.D. Ga., decided February 4, 2010) (2010 U.S. Dist. LEXIS 9366, *4-5 (III) (A) (1)) (The court held that the widespread third-party use of the prefix “Dr.” weakened the plaintiff’s suggestive mark and diminished the level of protection it was afforded.).

       A descriptive trademark or a service mark develops secondary meaning when the consuming public associates the mark with a single source. See, e.g., American Television & Communications Corp. v. American Communications & Television, 810 F2d 1546, 1549 (II) (11th Cir. 1987) (“In order to establish secondary meaning the plaintiff must show that the primary significance of the term in the minds of the consumer public is not the product but the producer.”); Univ. of Ga. Athletic Assn. v. Laite, 756 F2d 1535, 1540 (11th Cir. 1985) (accord).

       See Libman Co. v. Vining Indus., 69 F3d 1360, 1363 (7th Cir. 1995) (“[The defendant] noticed that [the plaintiff’s] brooms were selling briskly, inferred that consumers like brooms with contrasting color hands, and decided to climb on the bandwagon. We call that competition, not bad faith, provided there is no intention to confuse, and, so far as appears, there was none.”) (citation omitted).

       Trade dress, like trademarks, may be classified as generic, descriptive, suggestive, or arbitrary. AmBrit, Inc. v. Kraft, Inc., 812 F2d at 1537 (I) (A).

       It is undisputed that Afterburner presented no evidence of actual customer confusion as to the source of the parties’ military-themed business consulting services. See Division 1 (e), supra.

       See also Prufrock Ltd. v. Lasater, 781 F2d 129, 132 (II) (8th Cir. 1986) (To allow the plaintiff to protect its “country cooking concept under section 43 (a) of the Lanham Act would allow it to appropriate the country cooking concept to the exclusion of all others.”) (citations omitted); Haagen-Dazs, Inc. v. Frusen Gladje Ltd., 493 FSupp. 73, 75 (S.D. N.Y. 1980) (“It would he ludicrous ... to suggest that[,] in our free enterprise system, one producer and not another is permitted to take advantage of [a Scandinavian-themed] marketing approach to enhance consumer reception of its product.”); Denton v. Mr. Swiss of Missouri, 564 F2d 236, 243 (8th Cir. 1977) (“A franchisor has no protectable interest in the mere method and style of doing business.”) (citation omitted).

       In its order enjoining The Corps Group from using Afterburner’s trade dress, the court stated:
      [Wjhile the evidence at trial indicated that the Plaintiff routinely used flight suits, camouflage netting, parachutes, seminar materials mimicking fighter pilot mission planning documents, video-display screens mimicking fighter pilot jet radar screens, and/or fighter pilot themejd] music, the Court cannot conclude which item, or combination of these items, if any of them, make up the Plaintiff’s trade dress. The jury’s verdict is silent in this regard.
      The jury’s verdict is silent because Afterburner did not insist on a verdict form which asked the jury to make specific findings as to the components of Afterburner’s trade dress. In fact, Afterburner rejected the detailed verdict form proposed by the court.