author: McFadden, Judge.

text:
    A12A2381.
    SOUTHERN TELECOM, INC. v. TW TELECOM OF GEORGIA, L.P. et al.
    (741 SE2d 234)
   McFadden, Judge.

This dispute is about the interpretation of certain contracts for the creation of telecommunications networks in Atlanta and Birmingham, Alabama. Those contracts were entered in the 1990s between the parties’ predecessors in interest. Appellant Southern Telecom and its predecessors are affiliates of the Southern Company, whose subsidiaries own power lines, power poles, conduits, rights-of-way and related equipment. Appellees TW Telecom of Georgia, LP and TW Telecom of Alabama, LLC (together, “TW”), like their predecessors, are in the telecommunications business. TW’s predecessors contracted to run cable and fibers along power lines and rights-of-way and through conduits belonging to Southern Telecom’s affiliates in the Atlanta and Birmingham areas. Under the terms of those contracts Southern Telecom is entitled to a share of the revenue generated over TW’s predecessors’ Atlanta and Birmingham telecommunications networks.

The parties now disagree about the scope of the telecommunication networks from which Southern Telecom’s fee is calculated. The subject networks are identified and their scope is defined in the subject contracts. Those definitions specify how the subject networks at issue are to be distinguished from other networks to which they are interconnected. The subject networks are defined broadly, and the definitions contemplate future growth through expansion.

But the parties did not bargain for growth through acquisition, which is what has occurred. When the TW entities acquired their predecessors in interest, they had preexisting networks of their own in Atlanta and Birmingham. Southern Telecom now claims a right to share in the revenues of those preexisting networks. We find no warrant for that claim in the contracts. The contractual definitions of the subject networks do not support that claim. We find instead that Southern Telecom’s claim to revenue from the preexisting networks is controlled —■ and defeated — by the general rule that assignees’ rights and obligations are no greater than their assignors’.

Ruling on cross-motions for summary judgment, the trial court held that Southern Telecom’s right to a share of revenues, and consequently to information needed to calculate amounts owed, is limited to the networks as they existed at the time the contracts were first assigned. The trial court properly rejected Southern Telecom’s claim to revenue from TW’s preexisting networks and properly ruled that TW was not required to provide financial records related to its preexisting networks. We therefore affirm.

1. Facts.

Summary judgment is appropriate when the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.” (Citations omitted.) Forsyth County v. Waterscape Svcs., 303 Ga. App. 623 (694 SE2d 102) (2010).

So viewed, the record shows that Southern Telecom’s predecessor entered a contract with ICG Telecom Group, Inc. (“ICGT”) to construct and operate a telecommunications network in Atlanta using Georgia Power facilities, such as power poles, conduits and rights-of-way. Another Southern Telecom predecessor entered a contract with ICG Access Services, Inc. to construct and operate a telecommunications network in Birmingham, Alabama, using Alabama Power facilities. The contracts contained provisions that entitled the Southern Telecom predecessors to a percentage of the revenues the TW predecessors generated from the sale of telecommunications services.

(a) The Atlanta contract’s terms.

In addition to a $5.5 million initial payment, the contract required ICGT to pay during the contract term a “Network Fee,” which it defined as a “percentage [ ] of ICGT’s On-Net Revenue.” The contract defined “On-Net Revenue” as “the gross revenue... received by ICGT or any of its Affiliates derived directly or indirectly from the sale of Telecommunication Services provided over the ICGT Network to Telecommunications Customers located in any On-Net Building by ICGT or any of its Affiliates.” The contract defined “On-Net Building” as “any building, facility, plant, operation or structure in the Atlanta [area] directly or indirectly connected to the ICGT Network.” The contract defined “ICGT Network” as:

the digital telecommunications facilities of ICGT within the Atlanta [area], including, without limitation, the ICGT Fibers as well as other fibers utilized by ICGT, associated equipment and other digital telecommunications facilities that directly or indirectly intersect or connect to any ICGT Fibers or Cable, whether existing on the date hereof or constructed hereafter.

(Although the contract did not define “digital telecommunications facilities,” Federal Standard 1037C defines “telecommunications facilities” as “[t]he aggregate of equipment, such as radios, telephones, teletypewriters, facsimile equipment, data equipment, cables, and switches, used for providing telecommunications services.” Telecommunications: Glossary of Telecommunication Terms at http://www.its.bldrdoc.gOv/fs-1037//dir-036/_5352.htm.)

The contract goes on to distinguish between portions of the ICGT Network that were installed on Georgia Power facilities, which are called “Route Segments,” and portions installed on facilities owned by entities other than Georgia Power, called “Alternate Route Segments.” Southern Telecom was entitled to payments calculated on the basis of both, but smaller payments for Alternate Route Segments. The contract defined “Route Segments” as the portion of “fiber optic cable incorporating the ICGT Fibers, to be used by or installed for or on behalf of ICGT’ on Georgia Power facilities. The contract required the parties to designate the Route Segments on Exhibit A to the contract. Exhibit A, in turn, referred to and incorporated a map that set forth the build-out plan for the ICGT Network.

The contract provided that ICGT could propose Route Segments as additions to Exhibit A. Georgia Power could then accept or reject the proposed additions. If Georgia Power rejected a proposed addition, ICGT could use non-Georgia Power facilities, thereby creating an Alternate Route Segment. Alternate Route Segments were part of the ICGT Network, but “any On-Net Revenue generated by any On-Net Building connected to the ICGT Network by an Alternate Route Segment,” would be reduced “for the purpose of calculating the Network Fee due Southern Telecom. . . .”

The contract contained a provision authorizing assignment by ICGT, should ICGT merge or sell all of its assets, “so long as the surviving entity or purchaser . . . assumes all of the obligations of ICGT.” It also provided that it would be governed by Georgia law.

(b) The Birmingham contract’s terms.

Although the Birmingham contract was similar to the Atlanta contract, it defined the revenue to which the Southern Telecom predecessor was entitled in a different manner. In addition to an initial fee of $2.375 million, the Birmingham contract required ICG to pay over the contract term a “Bonus,” which the contract defined as a “percentage of ICG’s On-Net Telecommunications Revenues.” It defined “On-Net Telecommunications Revenues” as revenues from six sources, five of which derived from the ICG Network. The sixth source of revenue, “all charges for non-switched point-to-point or point-to-multipoint connections,” was independent of the ICG Network. The contract defined “ICG Network” as “[t]he digital telecommunications facilities of ICG within the Birmingham [area], including without limitation, both the ICG Fibers and associated equipment and other digital telecommunications facilities, whether existing on the date hereof or constructed hereafter.”

The contract contained a provision authorizing assignment by ICG, should ICG merge or sell all of its assets, “so long as the surviving entity or purchaser . . . assumes all of the obligations of ICG.” It also provided that it was governed by Alabama law.

2. Assignments of the contracts.

TW Georgia and TW Alabama ultimately acquired the contracts via assignment from Xspedius Communications LLC, which had purchased the contracts when the ICG entities went bankrupt. Southern Telecom consented to the assignments, but filed this action in order to assert its rights in light of the assignments. Southern Telecom alleged that TW “fail[ed] to account for the full size” of the networks. The primary issue is whether the contractual revenue sharing provisions are applicable only to the revenue generated over the ICG networks as they existed at the time of the assignments or whether the revenue sharing provisions apply also to the revenues generated over the telecommunications networks of the companies that acquired the ICG entities.

3. The applicable law.

Under both the Alabama and the Georgia law of assignments, TW assumed the obligations of ICGT and ICG as they existed at the time of the assignments. Under the law of both states, an assignee “stands in the shoes” of the assignor and obtains no greater rights than the assignor possessed at the time of assignment. Fouche v. Brower, 74 Ga. 251, 264 (1885); Pridgen v. Auto-Owners Ins. Co., 204 Ga. App. 322, 323 (419 SE2d 99) (1992); Nissan Motor Acceptance Corp. v. Ross, 703 S2d 324, 326 (Ala. 1997); 6A C.J.S. Assignments, § no.

The assignee acquires all of the rights and remedies possessed by the assignor at the time of the assignment, and takes the obligation, contract, chose, or other thing assigned subject to the same restrictions, limitations, and defects as it had in the hands of the assignor.

(Emphasis supplied.) 6A C.J.S. Assignments, § 110. “An assignment is intended to change only who performs an obligation, not the obligation to be performed.” (Citation and punctuation omitted.) Medtronic AVE v. Advanced Cardiovascular Systems, 247 F3d 44, 60 (II) (e) (3rd Cir. 2001). “[T]he assignee under a general assignment of an executory bilateral contract, in the absence of circumstances showing a contrary intention, becomes the delegatee of his assignor’s duties. . . .” (Citations and punctuation omitted.) Winkleblack v. Murphy, 811 S2d 521, 526-527 (Ala. 2001). “Generally speaking, the assignee of a contract will be held to have assumed the assignor’s obligations thereunder if he expressly or impliedly manifests an intention to become bound by those obligations.” High Point Sprinkler Co. v. George Hyman Constr. Co., 164 Ga. App. 706, 708 (1) (297 SE2d 757) (1982).

Georgia and Alabama cases hold that assignment is intended to change only who performs an obligation, not the obligation to be performed; they reject assignees’ attempts to expand rights transferred from an assignor. See Alabama Gold Life Ins. Co. v. Hall, 58 Ala. 1, 6 (1877) (“each successive assignee will acquire all the rights of the assignor at the time of assignment, and no more”); Algernon Blair, Inc. v. Nat. Surety Corp., 222 Ga. 672, 673 (151 SE2d 724) (1966) (“the assignee has no more rights under the contract than the assignor would have in dealings with the other contracting party”). The corollary to this rule applies equally to the other party to the original contract; its rights are neither enhanced nor diminished by assignment.

Thus, TW “stands in the shoes” of ICGT and ICG and assumed the obligations that ICGT and ICG owed Southern Telecom’s predecessors at the time of the assignments. Therefore, the question is, what were ICG and ICGT’s contractual obligations to Southern Telecom’s predecessors at the time of the assignments?

In Georgia,

where the terms of a written contract are clear and unambiguous, the court must look to the contract to find the intention of the parties — not to matters outside the contract. It is also well established that a contract should be construed by examining the entire agreement, not by speculating about isolated words, clauses or provisions thereof. Further, the construction of a contract, unambiguous on its face, is a matter of law for the court, even though a party to the contract contends it should be construed differently.

(Citations omitted.) Techwerks, Inc. v. Retail Technologies Corp., 235 Ga. App. 144, 145 (509 SE2d 84) (1998). “The contract . . . must be given a reasonable construction.” Ga. Power & Light Co. v. City of Waycross, 181 Ga. 216, 220 (181 SE 575) (1935).

Alabama law is similar:

Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written.

(Citation omitted.) Winkleblack, 811 S2d at 527.

4. The Atlanta contract: ICGT’s obligations to the Southern Telecom predecessor at the time of assignment.

At the time of assignment, ICGT was obligated to pay Southern Telecom’s predecessor a percentage of gross revenue it received “directly or indirectly from the sale of Telecommunication Services provided over the ICGT Network.” The contract does not contemplate — let alone obligate ICGT to pay a portion of — the revenue Xspedius or TW would receive for their sale of telecommunication services provided over Xspedius or TW networks. Under the plain terms of the contract, then, the obligation assumed by TW is the obligation to pay a percentage of the gross revenue ICGT was entitled to receive at the time of the assignment for the sale of telecommunications services over ICGT’s network.

Southern Telecom argues that the definition of ICGT Network includes the telecommunications facilities of any other entity, including Xspedius and TW, if those facilities connect in any way to the ICGT Fibers or Cable. We reject this argument because it relies on an ambiguity in the definition of ICGT Network. As described above, the contract defined “ICGT Network” as:

the digital telecommunications facilities of ICGT within the Atlanta [area], including, without limitation, the ICGT Fibers as well as other fibers utilized by ICGT, associated equipment and other digital telecommunications facilities that directly or indirectly intersect or connect to any ICGT Fibers or Cable, whether existing on the date hereof or constructed hereafter.

The expansive “including” language upon which Southern Telecom relies •— “including, without limitation,... other digital telecommunications facilities that directly or indirectly intersect or connect to any ICGT Fibers or Cable, whether existing on the date hereof or constructed hereafter” — conflicts with the first part of the definition, “the digital telecommunications facilities of ICGT within the Atlanta [area].” (Emphasis supplied.) “If the apparent inconsistency is between a clause that is general and broadly inclusive in character and one that is more limited and specific in its coverage, the latter should generally be held to operate as a modification and pro tanto nullification of the former.” (Citation omitted.) Central Ga. Elec. Membership Corp. v. Ga. Power Co., 217 Ga. 171, 173-174 (121 SE2d 644) (1961). Further, “the established rule of construction that [is] in the event of a conflict, the first provision prevails over the latter ambiguous language.” (Citation omitted.) Vass v. Gainesville Bank & Trust, 224 Ga. App. 259, 261 (480 SE2d 294) (1997). To interpret the definition of ICGT Network to include facilities of other entities simply because those facilities connect to ICGT Fibers or Cable conflicts with the more specific, first provision of the definition that the network consists of ICGT’s digital telecommunications facilities in the Atlanta area. Consequently, the first, more specific provision prevails, and the ICGT Network consists of the digital telecommunications facilities of ICGT in the Atlanta area.

5. Birmingham contract: ICG’s obligations to the Southern Telecom predecessor at the time of assignment.

Like the Atlanta contract, the Birmingham contract provided that Southern Telecom’s predecessor was entitled to a percentage of “ICG’s On-Net Telecommunications Revenues.” ICG was required to pay a percentage of its revenue derived from certain specified sources, primarily dial-tone lines connecting customers in On-Net Buildings in Birmingham to the ICG Network. It was not obligated to pay a percentage of revenue Xspedius or TW would receive for their sale of telecommunication services provided over their networks. Southern Telecom does not argue that a particular provision in the Birmingham contract captures the Xspedius and TW networks, as it does for the Atlanta contract. It simply argues that it is entitled to revenue generated over those networks by virtue of the assignments. As discussed in Division 6, infra, we disagree.

6. The contracts’ contemplation of growth in revenue does not encompass growth by assignment.

Southern Telecom argues that the contracts themselves contemplated growth in revenue from the growth of the ICGT and ICG networks. But this fact does not alter the principle that the assignee assumes the assignor’s obligations determined as of the date of the assignment. Southern Telecom cannot show that at the time of the assignments, ICGT and ICG derived revenue from the Xspedius or TW networks. Indeed, the contracts themselves included detailed procedures for adding Route Segments to the networks, and Southern Telecom points to no evidence that the parties followed those procedures for adding Xspedius or TW facilities to the networks. Those detailed procedures did not contemplate an expansion of the networks by assignment.

7. TW’s obligation to provide records.

Consistent with its rulings on revenue sharing, the trial court correctly ruled that the scope of information TW was required to provide Southern Telecom was restricted to the records relating to revenue generated on the facilities built pursuant to the contracts.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

Decided March 29, 2013

Troutman Sanders, Robert P. Williams II, Claiborne B. Smith, Bradley M. Davis, for appellant.

Strickland, Brockington & Lewis, Anne W. Lewis, Jonathan R. Poole, Ann M. Byrd, for appellees.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A2401.
    FOSTER v. THE STATE.
    (741 SE2d 240)
   BARNES, Presiding Judge.

Following the denial of her motion to suppress, Deloris Foster was convicted by a j ury of trafficking in methylenedioxymethamphetamine (MDMA or Ecstasy) and possession of more than an ounce of marijuana. The trial court denied her motion for new trial, and she appeals, arguing that the trial court erred in denying her motion to suppress and that without the evidence obtained from an illegal search, the evidence was insufficient to convict her. Because the arresting officer had probable cause to search Foster’s car, the trial court did not err in denying Foster’s motion, and we affirm.

1. When reviewing a ruling on a motion to suppress, we accept a trial court’s findings as to disputed facts unless the findings are clearly erroneous, but if the evidence is uncontroverted and no issue of witness credibility exists, we review de novo the trial court’s application of the law to the facts. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). When reviewing such a ruling, we may consider trial testimony and testimony adduced at a post-conviction hearing in addition to the testimony submitted during the pretrial motion to suppress hearing. See Sanders v. State, 235 Ga. 425, 431-432 (II) (219 SE2d 768) (1975), superseded in part by statute on other grounds as noted in State v. Dempsey, 290 Ga. 763, 765 (1) (727 SE2d 670) (2012). See also Grimes v. State, 303 Ga. App. 808, 809 (1) (695 SE2d 294) (2010).

In this case, Foster contends that the contraband on which her convictions were based was discovered during an invalid warrantless search.

Searches are conducted either with or without a search warrant. The most basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative.

(Citations and punctuation omitted.) State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984). The State bears the burden of demonstrating the legality of the search. State v. Massa, 273 Ga. App. 596, 597 (615 SE2d 652) (2005).

In this case, Foster was a passenger in a car that a police officer stopped for a traffic violation. The driver was arrested when the officer determined that a bench warrant was outstanding for his arrest. The officer immediately searched the car incident to the driver’s arrest and found Foster’s open pocketbook from which a clear bag containing marijuana was sticking out. The visible marijuana prompted the officer to search the contents of the purse, where he found MDMA. Foster was arrested, tried, and convicted of trafficking in MDMA and possession of more than an ounce of marijuana.

When Foster was arrested and tried, constitutional jurisprudence provided that the warrantless search of a vehicle incident to an occupant’s arrest did not violate the Fourth Amendment under New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981), and its progeny. While Foster’s motion for new trial was pending, however, the Supreme Court of the United States issued its decision in Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009). The Supreme Court in Gant limited the search-incident-to-arrest exception to those situations where “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” or where “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” (Citation and punctuation omitted.) Gant, 556 U. S. at 343 (III).

The State concedes that the search in this case was not authorized as a search incident to arrest under the parameters set forth in Gant. The State argues, however, that the contraband would have been inevitably discovered either during a valid inventory search before the car was impounded, or during a search based on probable cause because the officer smelled marijuana in the car.

Under the inevitable discovery doctrine, if the State can prove by a preponderance of the evidence that evidence derived from police error or illegality would have been ultimately or inevitably discovered by lawful means, then the evidence is not suppressed as fruit of an impermissible search or seizure. In other words, there must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.

Decided March 29, 2013.

Sonya R. Chachere-Compton, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Schweitzer v. State, 319 Ga. App. 837, 839 (738 SE2d 669) (2013) (evidence of contraband found in arrested defendant’s purse admissible because discovery inevitable due to valid practice of inventorying personal possessions upon booking).

Pretermitting whether the trial court erred in holding that the arresting officer would inevitably have impounded the car, we conclude that the evidence supports the trial court’s conclusion that the drugs would inevitably have been discovered. The officer testified that he smelled marijuana when the driver first got out of the car. At the post-trial motion to suppress hearing, the officer also testified that he had smelled marijuana when he first approached the car, and testified regarding his expertise in recognizing the odor. “[A] trained police officer’s perception of the odor of. . . marijuana, provided his ability to identify that odor is placed into evidence, constitutes sufficient probable cause to support the warrantless search of a vehicle.” State v. Folk, 238 Ga. App. 206, 209 (521 SE2d 194) (1999). Thus, the trial court correctly concluded that the arresting officer had probable cause to search the vehicle based on smelling marijuana, and that the search inevitably would have led to the discovery of the contraband in Foster’s purse. Accordingly, the trial court did not err in denying Foster’s motion to suppress or for a new trial.

2. Based on the properly admitted evidence, including the evidence of the legally seized contraband, the jury was authorized to convict Foster of the crimes charged.

Judgment affirmed.

McFadden and McMillian, JJ., concur.


author: Branch, Judge.

text:
    A12A2453.
    WARNER v. HOBBY LOBBY STORES, INC.
    (741 SE2d 270)
   Branch, Judge.

After she was injured by merchandise falling from a shelf in a Gwinnett County Hobby Lobby store, Dawn Evette Warner filed the current action against Hobby Lobby Stores, Inc., alleging that her injuries resulted from the store’s negligence in failing to properly install, inspect, or stock its shelving units. She now appeals from an order granting summary judgment against her and in favor of Hobby Lobby, arguing that there exists a genuine issue of fact as to whether Hobby Lobby had actual or constructive knowledge of the hazardous condition that caused her injuries. We disagree and affirm.

To prevail on a motion for summary judgment

the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial the defendant may show that [it] is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citation and punctuation omitted.) Beale v. O’Shea, 319 Ga. App. 1, 2 (735 SE2d 29) (2012). On an appeal from the grant or denial of a motion for summary judgment, we review the record de novo, construing the evidence in the light most favorable to the nonmovant. Samuels v. CBOCS, Inc., 319 Ga. App. 421, 422 (742 SE2d 141) (2012).

Construed in the light most favorable to Warner, as the nonmovant, the record shows that on September 24, 2008, Warner was shopping in a local Hobby Lobby. While in the store, Warner decided to look at some “white boards,” also known as dry-erase boards, that were on sale. The white boards were located on an end cap, which is a display unit located at the end of an aisle. This particular end cap was made of peg board, and the white boards rested inside a set of curved brackets mounted on the peg board. The brackets were attached to either end of a long piece of metal (“the bracket piece”), and welded to the back of each bracket was a flat metal piece, referred to as the bracket joint. The joints attached to the peg board, holding the brackets and the bracket piece in place.

Warner decided to purchase a white board, and so she reached with both hands and took hold of the board closest to her. Warner testified that as she began to lift the board out of the brackets, the “shelving gave way,” and all five of the white boards in the brackets fell toward her and onto the floor. As the boards fell, the one in Warner’s hands came forward and hit her head and then her legs; two other boards fell and hit her hands. As a result of the incident, Warner suffered a fracture of, and other injuries to, her left hand.

A Hobby Lobby employee, later identified as Valerie Hopkins, came to Warner’s assistance. Warner testified at her deposition that Hopkins inspected the brackets immediately after the incident and told Warner that the brackets were misaligned, because the two bracket joints had not been placed in peg holes that were on the same level; rather, one bracket joint was situated in a peg hole that was located one peg hole above the opposite bracket joint. Warner further stated that both she and Hopkins could see that the left bracket joint had separated from the bracket itself, and that the joint was rusted.

In response to questions, Warner stated that before she reached for the white board she stood in front of the end cap and looked at the price, which was posted on one of the brackets. At that time, all of the white boards in the brackets were standing straight up and were perpendicular to the floor, and there did not appear to be anything wrong with either the peg board or the brackets.

Wendy Cochran was the store manager at the time of the incident and was still the store manager in September 2011, when she was deposed. Cochran testified that the store’s shelving, including all brackets that held merchandise, are inspected regularly. She explained that all brackets were inspected before being installed on an end cap, and any that appeared damaged, worn, or otherwise not in good working condition were thrown away. After installation, all brackets were inspected at least once a week. Specifically, Cochran testified that all brackets were inspected every Monday, when store employees counted merchandise to determine what, if any, replacement stock needed to be ordered. Additionally, brackets would be inspected again as merchandise was restocked, and white boards were restocked every week, as they were a popular product. According to Cochran, the brackets at issue would have been inspected only hours before the incident involving Warner, which occurred at around lunchtime on a Wednesday. She knew this because the store received deliveries of new stock every Wednesday morning, and employees restocked the shelves on those mornings, before the store opened. Cochran also explained that because of the way in which the bracket had broken (by separating from the joint), the break would have been visible to anyone who passed by the left side of the end cap. And because this end cap was located across from the stock room, she had passed it a number of times on the day of the incident.

Additionally, Cochran stated that the broken bracket was not rusted and that the brackets were not misaligned. She also testified that there had not been any other incidents at the store involving brackets or shelving breaking or involving items falling from shelves or brackets.

Immediately after the incident, Cochran took the bracket piece (which contained the broken bracket) to her office, where she kept it until she gave it to the lawyer for Hobby Lobby. The bracket piece was produced for inspection at Cochran’s deposition, and she testified that it was in the same condition as it was on the day of the accident.

Following the close of discovery, Hobby Lobby moved for summary judgment on the grounds that the store had no superior knowledge of any dangerous condition that existed on its premises. The trial court held a hearing on that motion, at which time it inspected the bracket piece. At that hearing, Warner’s attorney acknowledged that the broken bracket on the bracket piece in the custody of Hobby Lobby’s attorney was “not rusted. It looks like the weld has popped.” But he argued that because there were no pictures of the bracket piece taken immediately after the incident, there was no way of telling whether the bracket piece produced at Cochran’s deposition and at the hearing was, in fact, the bracket piece involved in Warner’s injury.

The trial court granted Hobby Lobby’s motion for summary judgment, and this appeal followed.

To prevail in a premises liability action, a plaintiff must show: (i) the existence of a defective or hazardous condition on the premises; (ii) that the defendant had either actual or constructive knowledge of this condition; and (iii) that the plaintiff had no knowledge of the condition, despite the exercise of ordinary care. See Mucyo v. Publix Super Markets, 301 Ga. App. 599, 600 (688 SE2d 372) (2009); Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994). In this appeal, we must determine if the evidence raises a genuine issue of fact as to (i) whether the misaligned brackets constituted a hazardous or dangerous condition in the Hobby Lobby Store, or (ii) whether Hobby Lobby had constructive knowledge of the defective bracket. We find that it does not.

1. Warner first argues that there is some evidence showing that Hobby Lobby had actual knowledge of a hazard, because the brackets holding the white boards were “misaligned.” Given that Hobby Lobby employees installed the brackets in this fashion, Warner reasons, the store knew of the hazard created by the misalignment. Even assuming that the store did have actual knowledge of the misaligned brackets, however, that knowledge would not allow Warner’s claim to survive summary judgment. This is because Warner has failed to show that the misaligned brackets constituted a dangerous condition.

Warner has introduced no “evidence which affords a reasonable basis for the conclusion that” the slight misalignment of the bracket joints caused the left bracket joint to break, thereby causing her injuries. (Citation, punctuation and footnote omitted.) Hardnett v. Silvey, 285 Ga. App. 424, 426 (646 SE2d 514) (2007). No witness testified, for example, that as a matter of physics or engineering, a misaligned set of brackets would make the brackets more likely to break. Nor did anyone testify that, in their experience, misaligned brackets were more prone to break. And the mere possibility that the misalignment may have caused or contributed to the break is not enough to allow Warner to survive summary judgment on her claim. When the question of whether the allegedly dangerous condition caused the plaintiff’s injuries “remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.” (Citation, punctuation and footnote omitted.) Id. See also Young v. Richards Homes, Inc., 271 Ga. App. 382, 383 (2) (b) (609 SE2d 729) (2005) (even assuming that staircase constructed by defendant and from which plaintiff fell was defective, defendant was nevertheless entitled to summary judgment in the absence of evidence showing “some plausible causal connection between the staircase’s defects and [plaintiff’s] fall”) (citation omitted). Accordingly, Warner has failed to present evidence sufficient to support an inference that the misalignment of the brackets caused or contributed to the breaking of the left bracket.

2. Warner also contends that there was some evidence in the record sufficient to create a question of fact as to whether Hobby Lobby had constructive knowledge of the inherent danger posed by the left bracket itself. We disagree.

In cases such as this, constructive knowledge may be shown by evidence demonstrating that an employee of the proprietor was in the immediate area of the hazard and could have easily seen it, Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 250 (699 SE2d 439) (2010); that the hazard had been present long enough that the proprietor could have discovered it through a reasonable inspection procedure, CFUS Properties v. Thornton, 246 Ga. App. 75, 76 (1) (539 SE2d 571) (2000); or that there had been prior incidents, similar to the one that injured the plaintiff, sufficient to provide the proprietor with constructive knowledge of the danger. Sams v. Wal-Mart Stores, 228 Ga. App. 314, 315 (491 SE2d 517) (1997). No such circumstances exist in this case.

The record shows that even if the broken bracket joint existed prior to Warner’s encounter with the bracket, the break was not readily apparent. Warner did not see any problem with the bracket despite looking directly at the display before reaching for a white board. Furthermore, if the bracket was broken before the incident, the evidence shows that it could not have been broken long enough that Hobby Lobby should have discovered it. The testimony established that this particular break would have been visible from the side of the end cap, and the store manager had passed that side of the end cap several times that day and had not seen it. The evidence also established that Hobby Lobby had a reasonable inspection procedure, in that the brackets holding the white boards were inspected at least twice a week. And when the brackets were inspected that morning, the break was not present. Finally, the evidence showed that there had been no similar incidents in the store prior to Warner’s injury.

Despite the foregoing, Warner contends that her testimony that the broken bracket was rusted creates a factual issue as to whether Hobby Lobby had constructive knowledge of the hazard. This argument, however, ignores the evidence showing that the bracket at issue was not rusted. Moreover, Warner’s claim that it is possible that the bracket piece produced by Cochran is not the same one involved in Warner’s injuries is speculative, at best. Cochran testified that immediately after the incident she took custody of the bracket piece; that she later transferred custody of that item to the attorney for Hobby Lobby; and that the bracket piece produced for inspection at her deposition was the same item she had given to the attorney, and it was in the same condition as it was immediately following Warner’s accident. Additionally, there is no evidence in the record showing that Warner asked to inspect the bracket piece or that any inspection by her led her to conclude that the item was not the same bracket piece involved in her injury. Accordingly, Warner failed to show that the broken bracket joint in question was rusted, and the trial court did not err in granting Hobby Lobby’s motion for summary judgment. See Green v. Home Depot U.S.A., 277 Ga. App. 779, 781 (1) (a) (627 SE2d 836) (2006) (no evidence that store owner had constructive knowledge of hazard posed by boxes on shelves where there was no evidence that boxes had previously fallen or that the boxes were stacked precariously, and defendant showed that it had a reasonable inspection procedure); Metts v. Wal-Mart Stores, 269 Ga. App. 366, 367 (604 SE2d 235) (2004) (proprietor entitled to summary judgment on plaintiff’s claims for injuries arising out of boxes falling off store shelves; plaintiff failed to show that boxes were stacked in a hazardous manner and proprietor showed that it had restocked and inspected the shelves 15 minutes prior to the incident).

Decided March 29, 2013.

Mykkeltvedt & Loftin, Davis K. Loftin, for appellant.

Mabry & McClelland, James W. Scarbrough, Sheryl L. Burke, for appellee.

Judgment affirmed.

Ray, J., concurs. Miller, P. J., concurs in judgment only.

       Hopkins was not deposed in this action, apparently because she had left Hobby Lobby’s employ and could not be located.


author: MILLER, Presiding Judge.

text:
    A12A2497.
    NORMAN v. DOBY.
    (741 SE2d 293)
   MILLER, Presiding Judge.

This case arises from Lindsay Norman’s petition for a temporary protective order (“TPO”) against her husband, Shane Doby, alleging that he followed her, placed her under surveillance or contacted her without her consent for the purpose of harassing and intimidating her. F olio wing a hearing on the petition, a magistrate judge sitting by designation for a superior court judge issued a 12-month TPO. Doby filed a motion for new trial; however, before the trial court ruled on Doby’s motion, Norman twice consented to entry of an amended TPO to provide for visitation between Doby and the parties’ children. Following a hearing before a superior court judge on Doby’s motion for new trial, the trial court found that the evidence was insufficient as a matter of law to support the original unamended protective order. However, the trial court directed the parties to comply with the visitation provisions of the TPO as amended by the parties’ consent. This Court granted Norman’s application for discretionary appeal to review the trial court’s order on Doby’s new trial motion.

On appeal, Norman contends that the trial court erred in (1) finding that the evidence at the original hearing was insufficient as a matter of law; (2) ordering the parties to comply with the amended TPO; and (3) ruling on Norman’s motion to seal and exclude the transcript of the original hearing. For the following reasons, we affirm in part and reverse in part the trial court’s order.

“The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion.” (Citation and punctuation omitted.) Martin v. Woodyard, 313 Ga. App. 797, 799 (723 SE2d 293) (2012).

So viewed, the evidence shows that Norman and Doby are married and have two children. Norman decided to separate from Doby and moved to Georgia with her children.

In October 2011, Norman filed the petition for a TPO against Doby, alleging that Doby called her 50 times during one weekend that month and sent her 20 to 30 text messages within a 24-hour period. According to Norman, Doby harassed and cursed Norman in most of the text messages. Norman also alleged in her petition that, after she had met Doby to pick up the children following a weekend visitation with him, Doby followed Norman in her car for ten miles until she pulled into a store parking lot. Norman took the children inside the store for safety, where Doby screamed and cursed at her in front of the children. Following a hearing, the magistrate judge granted Norman’s petition for a 12-month TPO, which enjoined Doby from approaching within 250 yards of Norman and her immediate family. Doby subsequently filed a motion for new trial. Prior to the hearing on Doby’s motion, Norman filed a motion to exclude and seal the transcript of the hearing on Norman’s TPO petition, based on Doby’s failure to share in the costs of the takedown of that proceeding.

Norman and Doby subsequently entered into two consent amendments to the original TPO. The first consent amendment provided for a three-hour supervised visit between Doby and the parties’ children. Norman and Doby entered into the second consent amendment two days after a temporary visitation order was entered in their pending divorce case. The second consent amendment to the original TPÓ provided continued and extended visitation between Doby and the children consistent with the provisions of the temporary visitation order in the parties’ divorce case which was pending in Barrow County. Both consent amendments to the TPO provided that all other terms of the original TPO remained in full force and effect.

The trial court heard oral arguments on Doby’s motion for new trial, as well as Norman’s motion to exclude and seal the transcript of the TPO hearing. Thereafter, the trial court entered an order finding that the evidence was insufficient as a matter of law to support the original TPO. The trial court noted, however, that the parties twice amended the original TPO by consent, and directed the parties to comply with the provisions of the amended orders. However, the trial court struck the last line of each amended consent order that provided that all of the terms and conditions of the original TPO would remain in full force and effect.

1. Norman contends that the trial court erred in finding that the evidence was insufficient to support the original TPO. We disagree.

At the onset, we note that Norman’s brief fails to comply with Court of Appeals Rule 25 (c) (1), which states: “The sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Norman enumerates four separate errors, but she discusses only two of them without following the order of her enumerations of error.

Rule 25 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the [R]ule, [Norman] has hindered the Court’s review of [her] assertions and has risked the possibility that certain enumerations will not be addressed. Accordingly, to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations.

(Punctuation and footnote omitted.) Birchby v. Carboy, 311 Ga. App. 538, 540 (1) (716 SE2d 592) (2011).

A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. The term “contact” shall mean any communication. The term “place or places” shall include any public or private property occupied by the victim other than the residence of the defendant. The term “harassing and intimidating” means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

(Citation and punctuation omitted.) Pilcher v. Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007). In order to obtain a protective order based on stalking, the petitioner must establish the elements of the offense by a preponderance of the evidence. See OCGA §§ 16-5-94 (e); 19-13-3 (c).

Here, the evidence showed only one occasion in which Doby followed Norman in her car for approximately ten miles, and then followed her into a CVS store where he screamed and cursed at her in front of their children for approximately five minutes. The evidence also showed that Doby repeatedly called and texted Norman over the course of one weekend and that Norman and the children were afraid. However, Doby testified that calling Norman was the only way he could contact his children.

Doby’s testimony arguably supports a finding that Doby initiated the phone calls for a legitimate purpose. Thus, Norman has not shown that the phone calls met the statutory definition of harassing and intimidating conduct which served no legitimate purpose. See Pilcher, supra, 282 Ga. at 168 (holding that the petitioners failed to show that the respondent’s contacts served no legitimate purpose). Moreover, the single incident in which Doby followed Norman to the CVS store was insufficient to establish the pattern of harassing and intimidating behavior, necessary to support the issuance of the protective order. See Ramsey v. Middleton, 310 Ga. App. 300, 302-303 (713 SE2d 428) (2011) (holding that a single incident in a parking lot was insufficient to establish the necessary pattern of harassing and intimidating behavior). Accordingly, the record supports the trial court’s finding that the evidence was insufficient to support the original TPO.

2. Norman contends that the trial court erred in ordering the parties to comply with the amended consent orders and modifying those orders without the parties’ consent. We agree.

In response to Doby’s motion for new trial, and after a hearing, the trial court on April 24, 2012, and again on May 2, 2012, entered orders finding that insufficient evidence supported the original TPO. However, the court specifically ordered the parties’ compliance with the visitation-related amendments to the original TPO.

As an initial matter, we note that the first amendment providing for a single day’s visitation had expired by its own terms several months prior to the entry of the trial judge’s April and May 2012 orders. Thus, the trial court’s order requiring the parties to comply with the first amendment was error on its face.

Moreover, with regard to the purported survival of both amendments in the absence of the underlying original TPO, OCGA § 19-13-4 (a) (4) gives the trial court the authority to “establish temporary visitation rights” only upon the grant of a protective order or approval of a consent agreement “to bring about a cessation of acts of family violence.” In order for the trial court to grant a protective order, OCGA § 19-13-3 (c) provides that the petitioner first prove the allegations of the petition by a “preponderance of the evidence.” Absent proof by a preponderance of the evidence, the statute does not authorize the court to provide any relief whatsoever. Thus, it is axiomatic that where the trial court finds insufficient evidence to support the protective order, it no longer has the authority to impose — or to continue — ancillary relief such as the visitation in the instant case, because the trial court’s authority to grant that visitation exists only when it has determined that the evidence supports the underlying protective order itself. Since the trial court specifically found on motion for new trial that the evidence was insufficient to support the original TPO, the trial court lacked authority to direct the parties to comply with the provisions of their consent amendments.

3. Norman also contends that the trial court erred in allowing Doby to retain a copy of the transcript of the original TPO hearing, after the trial court granted Norman’s motion to exclude and seal the transcript. We disagree.

In civil cases, a court reporter and official transcript are not generally required, although a transcript may be needed to obtain full appellate review.... Once notes of a proceeding have been transcribed, however, the court reporter must certify the transcript and file the original and one copy with the clerk of the trial court. Upon filing, the transcript becomes a public record that is equally available to all parties.

(Citations and punctuation omitted.) Kent v. Kent, 289 Ga. 821, 822-823 (2) (a) (716 SE2d 212) (2011). Aparty who elects at the start of a proceeding to solely bear the takedown costs for preparing a transcript may keep another party from obtaining the transcript if, at the start of those proceedings, the other party expressly refuses to participate in the takedown costs. See id. at 823-824 (2) (b); see also Harrington v. Harrington, 224 Ga. 305, 305-306 (161 SE2d 862) (1968).

In this case, however, the record shows that both parties declined the option to share in the cost of the takedown at the hearing on the original TPO. The court reporter took notes at the hearing pursuant to superior court policy providing for the takedown of all TPO applications. Following the hearing, the court reporter prepared a transcript and filed it with the clerk’s office. Upon filing, the transcript became part of the public record that was equally available to all parties. See Kent, supra, 289 Ga. at 823 (2) (a). Since Norman did not contract with the court reporter at the beginning of the proceeding to take notes or prepare the transcript, the transcript was a public record, and Norman cannot show that the trial court erred in allowing Doby to retain a copy of the transcript.

Decided March 29, 2013.

David S. Lipscomb, for appellant.

Shane Doby, pro se.

Judgment affirmed in part and reversed in part.

Ray and Branch, JJ., concur.

       Further, once a protective order is no longer valid, as in the instant case, neither the superior courts nor law enforcement retains any power to enforce that order. See OCGA § 19-13-4 (d).


text:
    A12A2507.
    DAVISTA HOLDINGS, LLC v. CAPITAL PLAZA, INC.
    (741 SE2d 266)
   Branch, Judge.

This case concerns a piece of real property located in Thomas County and owned by Davista Holdings, LLC. Davista’s property is surrounded on three sides by property owned by Capital Plaza, Inc. Davista took title to its property subject to certain restrictive covenants contained in a 1989 warranty deed and subject to a 1989 Access and Parking Easement Agreement (the “Easement Agreement”). Davista filed this action seeking a declaratory judgment that certain provisions in the Easement Agreement constitute restrictive covenants that expired by operation of law 20 years after their creation. The trial court denied Davista’s request for relief and entered summary judgment in favor of Capital Plaza. Davista now appeals from that order.

We find that some of the provisions at issue grant Capital Plaza easements on, over, and across Davista’s property for parking, ingress, egress, and pedestrian and vehicular traffic. To the extent that the trial court’s order reaches this same conclusion, that order is affirmed. We further find, however, that other provisions contained in the Easement Agreement constitute restrictive covenants, and that these provisions therefore expired by operation of law, 20 years after their creation. To the extent that the trial court’s order holds otherwise, that order is reversed.

The facts in this case are undisputed. The record shows that Davista owns a 2.1-acre parcel of property on which is situated a single building housing a fast food restaurant. Davista’s property is surrounded on three sides by property owned by Capital Plaza and on which is situated a shopping center. Davista’s predecessor in title, DeCar, Inc., acquired the property from Capital Plaza’s predecessor in title, GW Acquisition Corporation, by way of a warranty deed executed on June 28, 1989. The 1989 warranty deed contained 11 restrictive covenants that effectively prohibited DeCar and its successors from using the majority of the property as anything other than a driveway, thoroughfare, or parking lot. Under the terms of the warranty deed, however, these restrictive covenants expired on June 25, 2009.

Contemporaneously with the execution of the 1989 warranty deed, DeCar and GW Acquisition entered into the Easement Agreement. Paragraph 1 of that agreement provides:

DeCar, Inc. hereby creates, grants and conveys to GW Acquisition Corporation over all portions of the real property [conveyed to DeCar] except those portions [on which the existing building sits], a non-exclusive easement, in perpetuity, for pedestrian and vehicular access, ingress and egress in, to, over, across and through said property. DeCar, Inc. also creates, grants and conveys unto GW Acquisition Corporation a non-exclusive easement in perpetuity for parking on all portions of the real property [conveyed to DeCar] except those portions [on which the existing building sits]. Said easements shall inure to the benefit of GW Acquisition Corporation, its successors and assigns, for their use and the use of the various tenants, business invitees, licensees and patrons of Gateway Shopping Center. DeCar, Inc. further agrees that it shall not change or alter the location or direction of the driveways and thoroughfares or otherwise place any landscaping or physical barriers which will change the vehicular traffic or diminish in number the parking spaces on those portions of the real property [conveyed to it] which are not designated as [the existing building], without the express written approval of GW Acquisition Corporation, its successors and assigns.

(Emphasis supplied.)

The Easement Agreement farther provides that GW Acquisition grants DeCar nonexclusive, perpetual easements over and on its property “for pedestrian and vehicular access and ingress in, to, over, across and through all driveways and thoroughfares located [thereon]... together with the nonexclusive right to use all parking spaces located on the property.”

Davista purchased the property on July 31, 2008, subject to both the terms of the 1989 warranty deed and the Easement Agreement. Following the expiration of the restrictive covenants contained in the 1989 warranty deed, Davista made plans to make improvements to, place new signage on, and subdivide the property. Capital Plaza objected to the planned changes on the grounds that they would violate the Easement Agreement, and it threatened to sue Davista if it proceeded. Davista then filed the current action seeking declaratory relief. Specifically, Davista argued that certain provisions of the Easement Agreement constituted restrictive covenants and therefore expired 20 years after their creation, pursuant to OCGA § 44-5-60 (b). Davista moved for summary judgment on its claim, and Capital Plaza filed a cross-motion for summary judgment. The trial court thereafter entered an order containing no legal analysis, granting Capital Plaza’s motion for summary judgment, and denying Davis-ta’s motion. This appeal followed.

Because the Easement Agreement constitutes a contract, its interpretation “is a matter of law for the court.” (Punctuation and footnote omitted.) Nesbitt v. Wilde, 306 Ga. App. 812, 813 (703 SE2d 389) (2010). See also Hardman v. Dahlonega-Lumpkin County Chamber of Commerce, 238 Ga. 551, 553 (2) (233 SE2d 753) (1977). And in construing this agreement, we interpret its terms using “their plain, ordinary, and popular sense.” (Punctuation and footnote omitted.) Nesbitt, supra at 814. Additionally, with respect to this particular contract, we must bear in mind “the general rule . . . that the owner of land has the right to use it for any lawful purpose” and that Georgia law does not favor “restrictions on private property.” (Punctuation omitted.) Charter Club on the River Home Owners Assn. v. Walker, 301 Ga. App. 898, 899 (689 SE2d 344) (2009).

The question presented by this appeal is whether the provisions of the Easement Agreement that purport to restrict Davista from using any part of its property, other than that part on which the existing building sits, for anything other than a driveway, thoroughfare, or parking lot, constitute easements or restrictive covenants. An easement grants an affirmative right “to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.” Restatement 3d Property (Servitudes) § 1.2 (1); see also comment (b). Conversely, a restrictive covenant, also known as a “negative easement,” does not convey any affirmative rights. Id., § 1.2 (4); see also comment (h). Rather, it restricts the rights of a landowner by limiting the use he may make of his property. Id., § 1.3 (1). As this Court has previously explained:

A restrictive covenant relates to a burden or “servitude” upon land, while an easement relates more to the benefit conferred upon the dominant tenement. Further, an easement . . . differs from a restrictive covenant in that it only requires the servient tenant not to interfere with the reserved rights of the dominant owner. A restrictive covenant [, on the other hand,] generally sets limits upon the use of the subject property.

(Citations and punctuation omitted.) Brown v. Dept. of Transp., 195 Ga. App. 262, 264 (393 SE2d 36) (1990).

The relevant paragraph of the Easement Agreement, set forth above, consists of two distinct parts. The first part, comprised of the paragraph’s first three sentences, constitutes easements; specifically, this part confers a benefit on Capital Plaza’s property and grants Capital Plaza affirmative rights. It creates and grants nonexclusive easements “for pedestrian and vehicular access, ingress and egress in, to, over, across and through” Davista’s property and for parking on that property. See, e.g., Brown, supra at 264 (an “easement relates more to the benefit conferred upon the dominant tenement”) (citation and punctuation omitted). See also Higginbotham v. Knight, 312 Ga. App. 525, 528 (719 SE2d 1) (2011) (whether a document creates an easement is a question of law for the court).

The second part of the paragraph is comprised of the fourth and final sentence, which begins “DeCar, Inc. further agrees that it should not change or alter. . . .” (Emphasis supplied.) Unlike the language contained in the sentences that precede it, the language in this fourth sentence creates no affirmative right. Rather, this language operates solely to restrict the rights of Davista, as the landowner, by limiting the use of its property. Specifically, this language bars Davista from using any portion of its approximately two-acre property, except for the part on which the current building is located, for anything other than a driveway, thoroughfare, or parking lot. Accordingly, this language represents a restrictive covenant that expired by operation of law 20 years after its creation, or on June 25, 2009. See Brown, supra at 264 (if language operates to set limits on the use of the subject property, then such language constitutes a restrictive covenant); OCGA § 44-5-60 (b).

Decided March 29, 2013.

William C. McCalley, for appellant.

Alexander & Vann, John T. Holt, for appellee.

Finally, we note that we are making no determination as to the scope of the ingress, egress, access, and parking easements created in favor of Capital Plaza and running across, over, and on Davista’s property. Specifically, we do not decide whether Davista’s proposed changes to the property are, in fact, prohibited by those easements, as that question is not before us.

We therefore affirm the trial court’s order to the extent that it holds that the first three sentences of the first paragraph in the Easement Agreement grant Capital Plaza easements on, over, and across Davista’s property for parking, ingress, egress, and pedestrian and vehicular traffic. We reverse the trial court’s order, however, to the extent that it holds that the fourth and final sentence of the first paragraph in the Easement Agreement constitutes an easement, rather than a restrictive covenant that expired by operation of law, 20 years after its creation.

Judgment affirmed in part and reversed in part.

Miller, P. J., and Ray, J., concur.

       The warranty deed conveying the property to Davista states that its reference to the Easement Agreement “does not imply that the Agreement is still valid and binding, nor shall this reference thereto act as a re-recordation, continuation, or extension of the terms of said Agreement beyond the Agreement’s original period of effectiveness.”

       That statute provides, in relevant part: “[C]ovenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted.” The parties agree that the property at issue is located in the City of Thomasville, which adopted zoning laws in 1958.

       We note that under Georgia law the grantor of an easement may not “do anything which would ‘materially interfere’ with the easement holder in the enjoyment of the easement.” (Citation omitted.) Upson v. Stafford, 205 Ga. App. 615, 616 (422 SE2d 882) (1992). But Georgia law also holds that unless an easement is exclusive, “the grantor may construct buildings or other improvements on the land which do not ‘substantially interfere’ with the enjoyment of an easement previously granted.” (Citations omitted.) Id. See Fairfield Corp. No. 1 v. Thornton, 258 Ga. 805 (374 SE2d 727) (1989) (the owner of the land, upon which the easements sits, may develop his property, except to the extent that such development would interfere with the easement); East Beach Properties v. Taylor, 250 Ga. App. 798, 801 (2) (552 SE2d 103) (2001). See also Daiss v. Bennett, 273 Ga. App. 784, 787 (2) (616 SE2d 114) (2005) (recognizing “the general principle that the holder of an easement must be adversely affected, or substantially or materially interfered with, in order to enjoin another owner’s unauthorized use”) (citation and punctuation omitted; emphasis in original).


author: McMillian, Judge.

text:
    A12A2511.
    SIKES v. GREAT LAKES REINSURANCE (UK) PLC.
    (741 SE2d 263)
   McMillian, Judge.

Jimmy Sikes (“Sikes”) appeals from the trial court’s order granting summary judgment to Great Lakes Reinsurance (UK) PLC (“Great Lakes”) on Sikes’ lawsuit to recover damages suffered in connection with the loss of his home and its contents due to a fire. For the reasons that follow, we vacate and remand with direction.

The record shows that Sikes purchased a policy of homeowners’ insurance (the “policy”) from Great Lakes that was effective from August 7, 2009 through August 7, 2010, for 841 McGregor Road, Alston, Georgia (the “property”). In early October 2009, there was a fire at Sikes’ home making it uninhabitable, and he lost all of his property that was in the house at the time of the fire. Within a day or two, Sikes notified Great Lakes about the fire and made a claim under the policy for his damages.

On December 22, 2009, Great Lakes conducted, as part of its investigation, an Examination Under Oath (“EUO”) of Sikes, who had his attorney present with him. Sikes testified that he was presently unemployed, but that he previously worked for a company selling grills throughout 2007, 2008, and part of 2009. Sikes testified that sometime in 2009, he began building and selling custom made grills “in a shop in [his] house,” which is “metal building.” Sikes received orders for the grills from an internet website, had a shop of materials on his property to build grills, and sold more than ten grills for $800 to $22,000. After this testimony, Sikes was directed to look at the second question on the application he completed when he obtained the policy, which asked if there was any kind of business on the premises. Sikes answered, “I mean, I go out there and build... I don’t have a business there ... it’s kind of like a place at your house where you do stuff if you want to do it... it’s not a business ... I work in it.”

During his EUO, Sikes also was asked, “Do you have a dock?” and he answered “I got a dock on my pond.” Sikes was directed to look at Question 8 on the policy application, which asked if there was a dock on the premises. Sikes answered, “The dock?” and stated, “I don’t know whether you would call it a dock or not but there is a ramp that goes out in my pond.”

Sikes additionally was asked during his EUO “What is the acreage on the property?” and he answered, “[s]even-point-something. I don’t know exactly.” Sikes was directed to look at Question 14 on the policy application regarding whether his property had more than five acres. Sikes stated, “Number 14. More than five acres, I don’t know that. It must have been a misunderstanding there but it’s seven-point-something.”

On January 28, 2010, Great Lakes paid $186,892.46 to Sikes’ mortgage holder. On April 8, 2010, Great Lakes rescinded the policy, returned Sikes’ premium payment, and informed Sikes his claim for the remaining fire damage to his property was denied due to material misrepresentations on the policy application. Sikes responded with a letter in which he refused to acknowledge the denial of coverage and returned the check refunding his premium payment.

Sikes filed this lawsuit on June 30, 2010, and Great Lakes subsequently moved for summary judgment. In support of its motion, Great Lakes submitted an affidavit from an underwriting manager averring that Sikes admitted he made misrepresentations on his policy application when he answered “no” to the questions which asked whether there was a dock on the property, whether he conducted a business on the property and whether the property was more than five acres. Further, the affidavit stated that these misrepresentations “changed the nature, extent and the character of the risk,” and that the insurer would not have accepted the risk and the policy would not have been issued if Sikes had not made these misrepresentations.

In response to Great Lakes’ motion, Sikes provided two affidavits denying he made misrepresentations on the policy application. Sikes attached a certified copy of the warranty deed and land plat to his property, which detailed three tracts, with tract I being 0.68 acre, tract II being 2.93 acres, and tract III being 4.19 acres. Sikes averred that his home was situated on the 4.19-acre tract, and that no other tracts of land or structures were to be covered under the policy. In addition, Sikes submitted an affidavit of an underwriting agent for Great Lakes, Lisa Evans, stating that he “asked for home owners only,” that they “did not discuss insuring any shops or other outside buildings,” and that she “told him that the other structure coverage was for any small sheds that he might have around his house.”

Sikes also stated in his affidavits he was not building grills at his home or adjoining property at the time of his application for the policy in August 2009. Moreover, he averred he never considered the platform extending to his pond from which he fed fish to be a “dock.” Sikes provided a dictionary definition of the word “dock,” and a picture of the structure to demonstrate it was not a “dock.” Sikes further stated that an agent for Great Lakes photographed the back of his home and was within “20 feet of the platform extending out to [his] pond which was in clear sight,” and no one from Great Lakes contacted him after the photographs were taken to change the terms of his policy.

To void a policy of insurance for a misrepresentation, “the insurer must show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk.” (Citations omitted.) Lively v. Southern Heritage Ins. Co., 256 Ga. App. 195, 196 (1) (568 SE2d 98) (2002). OCGA § 33-24-7 (b). On appeal, Sikes asserts the trial court erred by granting summary judgment to Great Lakes because there are disputed issues of material fact for a jury to resolve concerning whether he made misrepresentations in his policy application. Great Lakes argues that the three misrepresentations at issue were clearly established by Sikes’ sworn testimony in his EUO and that his later affidavits were insufficient to “impeach” his own prior sworn testimony.

“In each case, whether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide.” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986); Pope v. Hendley, 206 Ga. App. 773, 775 (426 SE2d 607) (1992). Further,

a trial court faced with a party’s self-contradictory sworn testimony must construe the testimony against that party on a motion for summary judgment, unless he or she offers a reasonable explanation for the contradiction. Significantly, whether a reasonable explanation has been offered is a question of law for the trial court, and we must uphold a trial judge’s determination on the issue unless it is clearly erroneous. In other words, this Court must affirm the trial court’s ruling if there is any evidence to support it.

(Footnotes and emphasis omitted.) Bithoney v. Fulton-DeKalb Hosp. Auth., 313 Ga. App. 335, 342 (1) (721 SE2d 577) (2011). See also Nghiem v. Allstate Ins. Co., 292 Ga. App. 588 (664 SE2d 925) (2008).

In this case the trial court did not make any direct or express determinations concerning: (1) whether Sikes presented contradictory testimony; (2) whether his affidavits provided reasonable explanations for any contradictory testimony; or (3) whether his affidavits should be discounted and construed against him. Further, although Great Lakes suggests that the trial court did engage in such an analysis to reach its stated conclusion that “Plaintiff’s affidavit does not create a genuine issue of material fact,” the trial court’s order is not as plain as Great Lakes portrays. The trial court’s analysis immediately preceding this conclusion pertained to whether the insurer had provided an uncontradicted affidavit to show that it would not have issued the policy had it known the “truth,” and the two cases the trial court cited in that portion of its order both involved situations where it was undisputed the insured had made misrepresentations on the policy. Graphics Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 432-433 (2) (469 SE2d 199) (1995); American Gen. Life Ins. Co. v. Schoenthal Family, 248 FRD 298, 312 (N.D. Ga. 2008). Further, the sentence that follows the trial court’s conclusion about Sikes’ affidavits also refers to the uncontroverted evidence on the question of whether the policy would have been issued. Thus, the trial court’s order is unclear as to whether the trial court’s conclusion that Sikes’ affidavits failed to create a genuine issue of material fact referred to his failure to controvert the insurer’s averments that it would not have issued the policy if Sikes had not made the purported representations, or whether it referred to Sikes’ attempt to “explain” those misrepresentations.

Although in some instances such uncertainty in the trial court’s order might not be especially problematic, in this instance we are faced with the quandary of what standard of review to apply to the trial court’s determination. If we read the trial court’s conclusion concerning Sikes’ affidavits as expressing a finding that those affidavits did not provide a reasonable explanation for his contradictory testimony in the EUO, review of that finding would be made under a clearly erroneous standard. Bithoney, 313 Ga. App. at 342 (1). However, if the trial court did not, in fact, apply Prophecy, but rather looked at the evidence in its entirety without discounting the favorable testimony in Sikes’ affidavits, that finding would be reviewed under our usual de novo standard on summary judgment, construing the evidence in Sikes’ favor as the nonmovant. Rapp v. Escante, Inc., 304 Ga. App. 262 (695 SE2d 744) (2010). And, which standard of review is applied might be outcome-determinative here, as is often the case on appeal. Thus, we must vacate and remand this matter back to the trial court to clarify its order and to determine whether Prophecy applies, and if so, to determine whether Sikes presented reasonable explanations regarding his contradictory testimony concerning (1) the acreage on his property, (2) whether he conducted a business on the premises, and (3) whether he had a dock on his property. If the trial court finds that Sikes did not present reasonable explanations, Sikes’ contradictions must be construed against him; if, however, the trial court determines that Sikes has provided reasonable explanations for the contradictions, then the evidence must be construed in his favor as the nonmovant on summary judgment.

Decided March 29, 2013.

C. Lewis Tippett, for appellant.

McNatt, Greene & Peterson, Hugh Peterson III, Fields, Howell, Athans & McLaughlin, Kylie Holladay, for appellee.

Judgment vacated and case remanded with direction.

Barnes, P. J., and McFadden, J., concur.

       After an investigation on October 5, 2009, an agent of the Georgia Insurance and Fire Safety Office concluded the cause of the fire was unknown.

       Sikes provided the definition of the word “dock” from Merriam Webster’s dictionary as follows:
      1: a usually artificial basin or enclosure for the reception of ships that is equipped with means for controlling water height, 2 a: a sloping ramp extending out into the water to serve as a place for landing or repairing ships, b: a ship’s or boat’s berth between two piers, 3 a: a place (as wharf or platform) for the loading or unloading of materials, b: a usually wooden pier used as a landing place or moorage for boats.

       On appeal, Sikes does not appear to dispute that a prudent insurer would have declined to issue the policy or would have issued the policy with different terms if he had given the same answers on the policy application questions that he did during the EUO.