author: Phipps, Chief Judge. McMlLLIAN, Judge,

text:
    A14A1547.
    CITY OF SANDY SPRINGS et al. v. MILLS.
    (771 SE2d 405)
   Phipps, Chief Judge.

The City of Sandy Springs and 28 alleged “direct descendants” of the grantor of a deed and of one of several individuals named in the deed in whose favor a one-acre tract of land had been conveyed in 1900 for the purposes of a family burial ground, appeal the trial court’s denial of their joint motion for summary judgment on a complaint for declaratory judgment Christopher Mills filed in August 2012. Mills, who was conveyed the property after it had been sold in a tax sale, filed the complaint after the City denied his request for a permit to build a single-family residence on the portion of the acre tract which contained no graves. The appellants also contend that the trial court committed reversible error by failing to address their contentions as to the validity of the tax sale by the county. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.[] 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 he 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. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

On February 20,1900, John S. Heard executed a deed in favor of about eight named individuals to a one-acre tract of land, for the purposes of a family burial ground and to be used for said purposes only. One of the individuals in whose favor the deed was executed was Carl Heard. Atax deed shows that on December 5,2006, the acre tract was sold at a sheriff’s sale for delinquent property taxes, the grantors being “Carl C. Heard, Jr. and Mary H. Ellis, (“Owners”) by and through . . . the Sheriff.” The tax deed was filed and recorded on January 10, 2007.

On December 21, 2007, “MARY H. ELLIS A.K.A. MARYANN ELLIS ELSNER” executed an “Affidavit of Descent,” stating that her sibling Carl C. Heard, Jr., had died intestate on June 15, 1992, had never married and had no children, and all of the debts of his estate had been fully paid. That same day, “MARY H. ELLIS A.K.A. MARY ANN ELLIS ELSNER, individually and as Sole Surviving Heir of CARL C. HEARD JR.” executed in favor of Henry Cline an “Assignment of Rights for Tax Parcel” regarding the acre tract. Further, “MARY H. ELLIS A.K.A. MARY ANN ELLIS ELSNER . . . INDIVIDUALLY AND AS THE SOLE SURVIVING HEIR OF CARL C. HEARD, JR. DECEASED” executed a quitclaim deed, conveying the acre tract to Cline “for and in consideration of the sum of TEN ÁND 00/100 ($10.00) Dollars and other good and valuable consideration.” The appellants assert that Mary H. Ellis executed the quitclaim deed for the acre tract in favor of Cline in exchange for $10,000; Mills does not dispute this assertion. The three documents — affidavit of descent, assignment of rights, and quitclaim deed — were all filed and recorded on December 27, 2007.

Cline paid the redemption price to the entity that had purchased the property in the tax sale, and that entity (on December 27, 2007) “in turn issued a quitclaim deed in favor of Carl C. Heard, Jr. and Mary H. Ellis, who had already quitclaimed their purported interest in the Property to Mr. Cline.” On July 31, 2012, Cline conveyed the property by quitclaim deed to his daughter and her husband, Christopher Mills, “for and in consideration of the sum of ONE AND NO/100 U.S. Dollars ($1.00).”

In December 2011, Mills and his wife initiated communication with the City about building a single-family residence on the “raw land” portion of the property or, in other words, that portion of the acre tract upon which there were no graves. It is undisputed that 20 or more human graves were situated on the property, “neatly arranged in clusters and rows,” that the graves covered approximately 0.20 acres of the northwestern portion of the acre tract, and that the most recent human burial identifiable on the tract had occurred in 1971. The City declined to issue Mills a residential single-family building permit, on the basis that the acre lot was encumbered by a “cemetery use restriction,” and would not be permitted for any other use. In August 2012, Mills filed a complaint for declaratory judgment, naming the City as the defendant, and asserting that, for various reasons, the restriction on the use of the entire acre tract as a family burial ground was no longer enforceable or, alternatively, that the City had “effectuated a taking of the Property by enforcing an unenforceable restriction covenant, . . . entitling Mills to just compensation.”

The City filed an answer, denying therein the “existence of a cause of action for which [Mills] would have redress before Court to seek a declaratory judgment.” On November 9, 2012, twenty-eight purported descendants of John S. Heard and of one of the individuals (not Carl Heard) named in the 1900 deed filed a motion to intervene as defendants in the case; they also filed an answer and counterclaim to Mills’s complaint. Mills consented to the motion to intervene. In their answer and counterclaim, the purported descendants asked the trial court to, among other things: (1) issue a declaratory judgment, “finding that the Cemetery is a family burial ground that has not been abandoned and, as such, [Mills] is prohibited from disturbing it in any fashion”; and (2) issue a declaratory judgment, “finding that legal ownership of the Cemetery is vested in the descendants of the individuals named in the original 1900 Deed from [John S.] Heard to his heirs.”

On February 27, 2013, the City and the purported descendants filed a document entitled “Defendants’ Notice of Joint Motion for Summary Judgment and Declaratory Relief,” asking the trial court to grant summary judgment in their favor regarding Mills’s complaint “on the ground that the Heard Family Cemetery has been perpetually dedicated as a private burial ground and, therefore, [Mills] cannot appropriate it for any other purpose, including constructing a single family residence.” The City and the purported descendants “[additionally” sought a “declaratory judgment that legal title to Heard Family Cemetery rests in the hands of . . . John Heard’s heirs as descended through the individuals named in the February 20, 1900 deed, which perpetually established Heard Family Cemetery as a private burial ground”; the appellants challenged the validity of the tax sale and deed.

The trial court denied the motion for summary judgment, concluding that while “alleged descendants of a prior owner of the Property” had an “easement in the Cemetery Limits,”

[t]here exist material issues of fact as to what portion of the Property has been or might be used for burial purposes. Similarly, the record reflects that the undeveloped portion of the Property contains mature tree growth and at some point in time may have been physically separated from the cemetery proper by a fence.

The court did not address the appellants’ motion for declaratory judgment with regard to the validity of the tax sale and deed, and who held legal title in the cemetery.

1. The City and the purported descendants contend that the trial court erred by holding that material issues of fact exist regarding whether “portions of the Heard Cemetery have been abandoned.”

When a family burial plot is established, it creates an easement against the fee, and while the naked legal title will pass, it passes subject to the easement created. . . . The easement and rights created thereunder survive until the plot is abandoned either by the person establishing the plot or his heirs, or by removal of the bodies by the person granted statutory authority.
“Abandoned cemetery” means a cemetery which shows signs of neglect including, without limitation, the unchecked growth of vegetation, repeated and unchecked acts of vandalism, or the disintegration of grave markers or boundaries and for which no person can be found who is legally responsible and financially capable of the upkeep of such cemetery.

Although Arlington Cemetery Corp. v. Bindig involved the dedication of land for a public cemetery, and what is involved in this case is the dedication or intended restriction on the use of private property for family burial purposes, as regards the issue of abandonment, the Supreme Court of Georgia in Arlington stated that “[abandonment is largely a question of intent. This intent is inferable from the acts of the parties, interpreted in the light of all the surroundings [.] . . . Abandonment is a mixed question of law and fact.”

In moving for summary judgment (and on appeal) the appellants posited that “there is no set of facts under which [Mills] could prove that [JohnS. Heard’s] descendants have abandoned their interests in the Cemetery.” The appellants pointed to evidence showing that the grave sites, collectively, are recognized by the Sandy Springs community as the Heard Family Cemetery, or burial ground; there are multiple headstones that can be easily seen from Heards Drive; various neighborhood groups and individual neighbors have cleaned up the cemetery and paid for tree removal services over the years; and 28 descendants of John S. Heard have intervened in “this action to protect their interests in the Cemetery.”

Mills responded by pointing to evidence (or the absence thereof) in the record showing that in May 2012, an archeologist determined that no human burial had taken place in the cemetery since 1971; none of the alleged descendants stated that they had maintained the cemetery or did anything to expand the cemetery into the undeveloped 0.80 acre portion of the acre tract; and none of the descendants had paid the ad valorem taxes that had been assessed on the property, redeemed the property after the tax sale, or “even challenged the [tax] levy.” None of the descendants had averred in their affidavits that they were legally responsible and financially capable of the upkeep of such cemetery. The trial court found (and the evidence showed), inter alia, that Cline maintained the property after he purchased it in the tax sale, the undeveloped portion of the acre tract contained mature trees, and there were “remnants” of a fence that appeared to have enclosed the cemetery.

There was evidence that the descendants had abandoned the acre tract of land that had been conveyed for the purposes of a family burial ground, and Mills met his burden on summary judgment by pointing to specific evidence giving rise to a triable issue of fact. Accordingly, the trial court did not err by denying the appellants’ motion for summary judgment as to Mills’s complaint for declaratory judgment.

2. The appellants also contend that the trial court committed reversible error by “failing to address their contentions that the sale of the cemetery to Mills is void because cemeteries in Georgia are exempt from ad valorem taxes.”

In their answer and counterclaim, the purported descendants alleged that their right to the acre tract was “threatened by a series of land transfers that are void,” and they asked the trial court to “issue a Declaratory Judgment finding that legal ownership of the Cemetery is vested in the descendants of the individuals named in the original 1900 Deed from [John S.] Heard to his heirs.” In their motion for summary judgment and declaratory judgment, the City asserted, and the purported descendants continued to assert, that the trial court “should declare that legal title to the cemetery rests in the possession of the heirs of the individuals named in the original deed,” and in support thereof they argued that “the tax deed executed by Fulton County . . . should be declared void because the deed did not convey the cemetery and, even if it did, cemeteries are exempt from property taxes in the State of Georgia.”

“It is the duty of a litigant to obtain a ruling on his motions or objections.” There is no indication in the appellate record that the appellants made any effort to elicit a ruling from the trial court with regard to their motion for declaratory judgment concerning the validity of the tax sale and deed, and who held legal title in the property. The record shows that seven days after the trial court entered the order from which the appellants appeal, the appellants filed in the trial court a request for a certificate of immediate review. In their request, the appellants made no mention of their motion for declaratory judgment, referring solely to their “Joint Motion for Summary Judgment” and the trial court’s ruling thereon with regard to the issue of whether the acre tract of land, or any part thereof, had been abandoned. The appellants’ failure to obtain a ruling on their joint motion for a declaratory judgment (concerning the validity of the tax sale and deed, and legal ownership or title of the acre tract) resulted in a waiver of review of that issue in this appeal.

Judgment affirmed.

Ellington, P. J., concurs. McMillian, J., concurs specially.

McMlLLIAN, Judge,

concurring specially.

Although I agree with the majority that the trial court properly denied appellants’ joint motion for summary judgment, I do not agree with all that is said in the majority opinion and write separately to set out the complete statutory framework applicable to the issues raised in this appeal.

1. As more fully set out in the majority opinion, Christopher Mills filed a complaint for declaratory judgment after the City of Sandy Springs (“City”) declined to issue him a permit to allow him to build a single-family home on a portion of a one-acre parcel of land that formerly had been deeded for the purpose of a family burial ground. This action is governed by a statutory scheme enacted in 1991, in which the legislature expanded the provisions governing the use and development of burial grounds and cemeteries, including providing for criminal penalties for violations. See OCGA §§ 36-72-1 to 36-72-16; Ga. L. 1991, p. 924, § 3 (hereinafter the “Act”). In so doing, the legislature declared

... that human remains and burial objects are not property to be owned by the person, or entity which owns the land or water where the human remains and burial objects are interred or discovered, but human remains and burial objects are a part of the finite, irreplaceable, and nonrenewable cultural heritage of the people of Georgia which should be protected.

OCGA § 36-72-1 (a).

With respect to this case, OCGA § 36-72-4 requires an owner of property that contains a burial ground to obtain a permit before developing the property or any portion thereof as follows:

No known cemetery, burial ground, human remains, or burial object shall be knowingly disturbed by the owner or occupier of the land on which the cemetery or burial ground is located for the purposes of developing or changing the use of any part of such land unless a permit is first obtained from the governing authority of the municipal corporation or county wherein the cemetery or burial ground is located[.]

(Emphasis supplied.) Id. Thus, an initial question is whether the one-acre parcel is a “burial ground” for which a permit is required. Mills contends that the portion of the property where he intends to build a home is not, whereas the City asserts that the entire parcel is a burial ground.

The term “burial ground” is defined in the Act as

... an area dedicated to and used for interment of human remains. The term shall include privately owned burial plots, individually and collectively, once human remains have been buried therein. The fact that the area was used for burial purposes shall be evidence that it was set aside for burial purposes.

OCGA § 36-72-2 (3). Accordingly, two things are required for an area of land to be considered a burial ground — that the area has been dedicated for the interment of human remains and that the area has been used for the interment of human remains.

The facts of this case show without dispute that the approximately one-acre tract at issue was dedicated, by deed, for use as a family burial ground. With respect to the use of the property, it is undisputed that a not insignificant number of interments have occurred on part of the acre parcel, grave markers have been put in place, and members of the local community consider the property to be the Heard family’s burial ground. Thus, the record shows without dispute that the acre parcel was both dedicated and used for the purpose of interment of human remains. Further, there is no evidence, so far as the record shows, that the land had been used for anything other than its dedicated purpose. Accordingly, the acre parcel was clearly a “burial ground” as that term is defined in the statute.

Decided March 30, 2015.

It is only after a determination that the land in question is a burial ground that the issue of abandonment is reached. And I agree with the majority that the issue of abandonment must be decided by a jury taking into account the nonexhaustive list of factors contained in OCGA § 36-72-2 (1). However, I would further note that even if a jury finds that the burial ground has been abandoned, it does not follow that Mills’ ability to build on the property is unfettered. First, the permitting statute appears to apply to the development of all burial grounds and cemeteries, whether abandoned or not. See OCGA § 36-72-4. And pursuant to OCGA § 36-72-3, the City has within its discretion to preserve and protect any abandoned burial ground or cemetery and to exercise its power of eminent domain to acquire any interest in land necessary for that purpose. See OCGA § 36-72-3; Smith v. Pulaski County, 269 Ga. 688 (501 SE2d 213) (1998) (county has discretion to protect or preserve abandoned cemetery or burial ground).

Additionally, because the trial court and the majority rely on the presence of remnants of a “dividing” fence in their analysis, I would also point out that it is by no means clear to me from my de novo review of the record that a fence in fact divided the parcel into a burial area and a nonburial area. The copy of the survey contained in the record is somewhat difficult to read, but the only notations denoting “fence posts” appear to be near the northern corner of the cemetery and along the southern boundary of the acre lot. However, the archeologist does state in his affidavit that he inspected the ground “beyond the fence and into the undeveloped portion of the property [,]” and the trial court and the parties appear to accept a fence in this location, so it may very well be that the markings are just not discernible on the copy of the survey contained in the record. But we need not belabor the lack of clarity here, which will obviously be fleshed out by the parties when this case is presented to the jury.

2. As to Division 2,1 write only to make plain that the trial court’s order does not clearly foreclose consideration of these issues, the outcome of which may, in any event, be somewhat dependent on the determinations made by the jury on the other issues at trial. Accordingly, I do not believe that the failure to secure a ruling on these issues forecloses their review at some later juncture.

Wendell K. Willard, Constangy, Brooks & Smith, W. Wright Mitchell, for appellants.

Busch White Norton, Christopher M. Porterfield, Samantha L. Gunnison, for appellee.

       This court granted the appellants’ application for interlocutory appeal.

       OCGA § 9-11-56 (c).

        Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 283 (763 SE2d 899) (2014) (citations omitted).

       It is apparent by the appellants’ appellate brief that by “Cemetery,” they mean the entire acre tract of land which was deeded for the specified purpose of serving as a burial ground.

        Walker v. Ga. Power Co., 177 Ga. App. 493, 495 (1) (339 SE2d 728) (1986) (citations, punctuation and emphasis omitted).

       OCGA § 36-72-2 (1).

       212 Ga. 698 (95 SE2d 378) (1956).

       Id. at 703-704 (2).

       Id. at 704 (2) (citations and punctuation omitted).

       See OCGA §§ 36-72-2 (1); 9-4-6 (providing for the submission of fact issues to the jury in declaratory judgment actions). See generally Walker, supra at 497-498 (1) (heir abandoned her rights in a private cemetery when she acquiesced in the removal and reinterment of the remains of her ancestors in relocated cemetery; therefore, trial court erred in not granting condemnor’s motion for summary judgment regarding heir’s claim of inadequate compensation for relocation of cemetery).

        Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 313 (2) (a) (724 SE2d 33) (2012) (punctuation and footnote omitted); see Tipton v. State of Ga., 321 Ga. App. 870, 872 (1) (743 SE2d 532) (2013); American Mgmt. Svcs. East v. Fort Benning Family Communities, 318 Ga. App. 827, 830, n. 3 (734 SE2d 833) (2012); Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 42 (1) (482 SE2d 536) (1997). Compare Walker, supra at 497 (1) (“The superior court... erred in refusing to consider... questions, which were properly raised... in [a] motion for summary judgment.”).

        Shropshire, supra; American Mgmt. Svcs. East, supra; Peace v. Dominy Holdings, 251 Ga. App. 654, 657 (2) (554 SE2d 314) (2001).

       Accordingly, this case lacks precedential value. See Court of Appeals Rule 33 (a).

       Prior to 1991, more limited provisions were in place relating to disturbing burial grounds for land development. See Ga. L. 1991, p. 924, §§ 1, 2.

       Similarly, OCGA § 36-72-2 (5) defines a cemetery as “any land or structure in this state dedicated to and used for interment of human remains. It may be either a burial park for earth interments or a mausoleum for vault or crypt interments or a combination of one or more thereof.”

       I would reject Mills’ assertion that only the land where human remains have been interred has been “used” for purposes of defining the burial ground. Under the plain language of OCGA § 36-72-2 (3) a burial ground is to “include” privately owned burial plots, suggesting that the term “burial ground” also includes other portions of the property used for its dedicated purpose.


source: Caselaw Access Project

author:
Ray, Judge.
      McFADDEN, Judge, ANDREWS, Presiding Judge,

license: Public Domain

text:
    A14A1580.
    COOLEY v. BRYANT.
    (771 SE2d 411)
   Ray, Judge.

Jonathan Bryant, an inmate at the Muscogee County Prison, was actively participating on a work crew assigned to the Columbus Parks and Recreation Department when he was injured by a lawn mower. Bryant filed suit against Michael Cooley, the correctional officer supervising the crew, in his individual and official capacities, for the injuries Bryant sustained. Cooley filed a motion for summary judgment, arguing that Bryant’s claims against him were barred by the doctrines of sovereign immunity and official immunity. Finding that Bryant’s claims against Cooley in his official capacity were barred by the doctrine of sovereign immunity, the trial court granted his summary judgment motion in part. However, the trial court denied Cooley’s summary judgment motion as to Bryant’s claims against him personally. The trial court found that Cooley’s acts of maintaining and inspecting the lawn mower were ministerial, not discretionary, and that Bryant’s claims against him were not barred by the doctrine of official immunity. The trial court certified its order for immediate review, and this Court granted Cooley’s petition for interlocutory review. We affirm the trial court’s denial of Cooley’s summary judgment motion, but remand the case to the trial court for a jury to determine whether, under the facts of this case, Cooley knew that the lawn mower was defective and presented a dangerous condition, such that his ministerial duty to have the mower repaired would trigger, and if so, all issues related to liability and damages.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga. App. 362, 362 (739 SE2d 801) (2013).

The record shows that on May 3, 2006, Bryant, an inmate at the Muscogee County Prison, was assigned to an inmate work detail where he was directed to cut grass at Dinglewood Park in Columbus, Georgia. The detail supervisor was Correctional Officer Cooley. Cooley was responsible for supervising the inmates during the work detail and for ensuring that the equipment they were using was operational. Cooley deposed that he inspected the lawn mowers to ensure that they had oil and gas and that the blades were sharp. If anything needed repair, he would deliver it to the maintenance shop. Cooley would again inspect the equipment in the evening after it had been used to make sure that it was “clean, serviceable, [and] ready for the next day’s work.” There was no written policy or procedure governing Cooley’s inspections or requiring him to inspect the equipment for safety.

On the day of his injury, Bryant was assigned to the task of mowing with a three-wheel push mower. To start the mower, Bryant had to connect the spark plug and pull the crank. The mower’s safety lever had been disconnected at the time he began work that morning. This lever would normally have to be held to start and keep the mower running. Bryant stated that Cooley instructed him to make sure that the spark plug was plugged in when he turned the mower on and that he should hold a zip tie attached to the spark plug to pull the spark plug out if he wanted to turn the mower off. Further, the safety flap on the side of the mower where the grass shoots out was missing. Bryant also explained that he informed Cooley that the mower assigned to him was meant for flat surfaces, but that Cooley instructed him to mow a hilly area.

Cooley deposed that he had not experienced any previous maintenance issues with that mower, and that he had inspected the mower on the day of Bryant’s injury and confirmed that it had not been altered or changed in any way. However, it was common for inmates hoping to avoid working to “mess” with the equipment. Bryant deposed that it was “common knowledge” that the equipment given to the inmates to perform their work duties was “half crap” and that guards did not seriously consider complaints from other inmates regarding equipment safety.

On the date at issue, the inmate crew was finishing up their work at the park when Bryant’s accident occurred. Bryant pushed the mower down a hill to cut grass as close to the adjacent ditch as possible when his mower gained so much momentum that he was almost running to stop the mower from escaping his grasp. The three-wheeled mower hit a hole, dug into the ground, and flipped up sideways. Bryant pushed the mower off to the side and tried to jump clear, but his leg hit the portion of the mower where the grass shoots out and was seriously injured. The mower continued to operate during the event because the mower’s safety lever, which would normally automatically shut off the mower in such a situation, was inoperable at the time. Another inmate ran up and pulled the spark plug out to stop the mower.

Bryant filed suit against Cooley individually and in his official capacity for negligent inspection and negligent maintenance of the lawn mower. Cooley filed a motion for summary judgment, arguing, inter alia, that the claims against him in his individual capacity were barred by the doctrine of official immunity. The trial court denied Cooley’s summary judgment motion as to the claims against him personally, finding that Cooley’s inspection and maintenance of the lawn mowers was ministerial and that Bryant’s claims against Cooley were not barred under the theory of official immunity. The trial court issued a certificate of immediate review, and this Court granted Cooley’s application for interlocutory review after finding that it fell under the collateral order doctrine.

1. Cooley contends that the trial court erred in denying his motion for summary judgment as to the issue of official immunity based upon a finding that his inspection and maintenance of the lawn mowing equipment was ministerial, and not discretionary.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Citations omitted.) Williams v. Pauley, 331 Ga. App. 129, 130 (768 SE2d 546) (2015). Official immunity is an “ ‘entitlement not to stand trial’ rather than a ‘mere defense to liability.’ ” (Footnote omitted.) Cameron v. Lang, 274 Ga. 122, 124 (549 SE2d 341) (2001). Accordingly, as a correctional officer in the Parks and Recreation Division of the Columbus Consolidated Government, Cooley is

entitled to official immunity for the negligent performance of discretionary acts within the scope of his authority as an officer; he may be personally liable if he negligently performed a ministerial act or acted with actual malice or an intent to injure when performing a discretionary act.

(Citations omitted; emphasis supplied.) Williams, supra. Because Bryant does not claim that Cooley acted with actual malice or an intent to injure, the issue is whether the alleged negligence involved discretionary or ministerial action.

The difference between ministerial and discretionary acts has been explained as follows: A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

(Footnote omitted.) Taylor, supra at 363-364. “Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case.” (Citation and punctuation omitted.) Parrish v. Akins, 233 Ga. App. 442, 443 (1) (504 SE2d 276) (1998).

Cooley deposed that it was his responsibility to make sure the equipment was “operational; make sure there’s oil, gas in it; blades are sharp.” He deposed that he inspected the equipment twice daily to make sure that “it’s clean, serviceable, ready for the next day’s work.” If he did discover a piece of equipment that needed repair, he would take it to the City’s maintenance shop. However, Cooley’s affidavit testimony stated that “[t]here is no written policy or procedure governing the manner in which the mower was to be inspected[.]” Bryant has pointed to no evidence of a policy, written or unwritten, requiring Cooley to conduct safety inspections in a certain manner. However, both Cooley and Tony Adams, the director of the Columbus Parks and Recreation Department, agreed that there was an unwritten policy in the Department that a correctional officer has a duty to take defective equipment to the maintenance shop when it required maintenance.

The evidence shows that a cursory examination of the lawn mower would have revealed that the lawn mower at issue was in need of repair: the flap covering the grass shootout was missing, the spark plug had to be connected to start the mower, the safety lever meant to shut off the mower was not operational, and in order to shut the mower off and disengage the blade, the spark plug had to be removed by means of a zip tie. The record also contains a question of fact as to whether Cooley was aware of these issues: Bryant deposed that Cooley instructed him to turn the lawn mower off using the zip tie attached to the spark plug, and Cooley deposed that the mower did have a kill switch.

Cooley argues that his inspection of the lawn mower was discretionary because there is no policy or procedure governing how he conducted such inspections. Even in the absence of such a policy, however, there is evidence in the record that Cooley was aware that the lawn mower had several defects in its safety features, and once he became aware of such safety issues, there is evidence of an unwritten policy requiring him to take the faulty lawn mower to the maintenance shop for repairs. The duty to take defective machinery to the maintenance shop for repairs clearly constitutes a ministerial act. Cooley’s duty under the Department’s policy was simple: to deliver defective equipment to the maintenance shop.

Where the relevant facts pertaining to official immunity are in dispute, resolution of the factual issues is for the jury. Eshleman v. Key, 326 Ga. App. 883, 888 (755 SE2d 926) (2014) (cert. granted on September 8, 2014 to decide the issue of whether OCGA § 51-2-7 created a ministerial duty). In Eshleman, an off-duty police canine handler failed to properly secure a department-owned canine in the back of a pickup truck, and the canine got loose and bit a child playing nearby. This Court held that there was evidence sufficient to create a question of fact as to whether the officer knew the dog to be dangerous or vicious. If the officer had such knowledge, then she was bound by a ministerial duty imposed by a statute governing “vicious or dangerous animals” to keep the dog properly restrained. Similarly, here, there is evidence that Cooley was bound by a ministerial duty to take the lawn mower to the maintenance shop once he realized that it needed repair. A question of fact to be decided by the jury then is this: whether Cooley did, in fact, have knowledge that the lawn mower was defective and needed repair, such that the ministerial duty to take it for repair kicked in.

This Court’s opinion in Glass v. Gates, 311 Ga. App. 563, 564-566, 574-576 (2) (716 SE2d 611) (2011), supports our holding. In Glass, an inmate was killed during a prison work detail supervised by a correctional officer. Plaintiff presented evidence of unwritten departmental policies requiring a detail supervisor to contact the work camp and request a service truck for assistance in the event a tractor got stuck in a ditch, and requiring a laborer to be at least 50 feet behind an operating tractor at all times. The evidence showed that the defendant detail supervisor violated these unofficial policies when instructing the inmate to attempt to remove a tractor stuck in a ditch, and the inmate subsequently died of injuries sustained during that attempt. This Court held that a grant of summary judgment was in error because, in light of the plaintiff’s evidence regarding the unwritten departmental policies, there was a question of fact as to whether there was actually an established policy and, thus, whether the correctional officer’s act was discretionary or ministerial. Similarly, here, there is a fact question as to whether Cooley was aware that the lawn mower was in need of repair, and if so, then he is bound to comply with the unwritten Department policy requiring him to complete the ministerial act of delivering the lawn mower to the maintenance shop for repair.

The dissent contends that even if Cooley knew that the kill switch was disabled, that he nonetheless engaged in a discretionary act in failing to take it to the maintenance shop for repair. We disagree. Both Cooley and Adams, the director of the Parks and Recreation Department, agreed that once a lawn mower’s safety or kill switch is disconnected or rendered inoperable, it becomes a dangerous piece of machinery. Thus, if the jury concludes that Cooley was aware of this defect, then the unwritten department policy merely dictated that he complete a simple task: that is, to take the lawn mower to the maintenance shop for repair.

2. Cooley’s remaining enumeration is without merit.

Judgment affirmed in part and case remanded.

Barnes, P. J., and Branch, J., concur. McFadden, J., concurs fully and specially. Doyle, P. J., concurs in judgment only. Andrews, P. J., and Boggs, J., dissent.

McFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to explain that this case properly falls into the line of cases that have “recognized that the execution of a specific task is characterized as ministerial even though the manner in which it is accomplished is left to the employee’s discretion.” Golden v. Vickery, 285 Ga. App. 216, 218 (645 SE2d 695) (2007) (citations and punctuation omitted). A jury would be authorized to conclude that the unwritten policy at issue required Cooley to inspect the equipment not only to confirm that it was operational but also for safety and that Cooley’s admitted failure to inspect for safety was a failure to execute that ministerial duty.

ANDREWS, Presiding Judge,

dissenting.

Because there is no factual question requiring that this case be remanded on the official immunity issue, and the record shows that Officer Cooley was entitled, as a matter of law, to official immunity, I respectfully dissent.

Jonathan Bryant, a prison inmate at the Muscogee County Prison, was injured while voluntarily working as part of a crew of inmates cutting grass with a power lawn mower under the supervision of Michael Cooley, a correctional officer employed by the Columbus Consolidated Government (CCG). Bryant sued Officer Cooley to recover damages for his injury, naming Officer Cooley as a defendant in his individual capacity, thus seeking to impose personal liability on Officer Cooley for the injury. Bryant alleged in his amended complaint that his injury was caused by a defective and dangerous lawn mower that he used under Officer Cooley’s supervision, and that Officer Cooley negligently caused the injury by failing to properly inspect the lawn mower, discover the defects, and have the mower repaired to make it safe before it was used. Asserting “official immunity” from this claim, Officer Cooley moved for summary judgment, the trial court ruled that he was not immune and denied the motion, and Officer Cooley appealed pursuant to this Court’s grant of his petition for interlocutory review.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

Cameron v. Lang, 274 Ga. 122, 123 (549 SE2d 341) (2001) (citations and punctuation omitted); Gilbert v. Richardson, 264 Ga. 744, 750-753 (452 SE2d 476) (1994). As a correctional officer employed by the CCG, Officer Cooley was protected by the doctrine of official immunity, and may be held personally liable on Bryant’s claim only if: (a) he negligently performed a ministerial act, or (b) he acted with actual malice or an intent to injure. Cameron, 274 Ga. at 125-126; Phillips v. Hanse, 281 Ga. 133, 133 (637 SE2d 11) (2006). Bryant claims that Officer Cooley acted negligently — he does not claim that Officer Cooley acted with actual malice or an intent to injure. Accordingly, Officer Cooley was entitled to official immunity from the asserted claim if he was negligent while performing a discretionary act, even if that negligence amounted to a reckless disregard for Bryant’s safety. Cameron, 274 Ga. at 125-126; Murphy v. Bajjani, 282 Ga. 197, 203-204 (647 SE2d 54) (2007); Williams v. Solomon, 242 Ga. App. 807, 809 (531 SE2d 734) (2000). It follows that the issue presented in Officer Cooley’s motion for summary judgment is whether the negligence alleged involved discretionary or ministerial action.

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.

Banks v. Happoldt, 271 Ga. App. 146, 149 (608 SE2d 741) (2004) (citations and punctuation omitted). Under this definition, the record shows, as a matter of law, that the alleged negligence involved discretionary action by Officer Cooley.

Officer Cooley was assigned to the CCG’s Parks and Recreation Department, where he supervised a crew of prison inmates (generally four to eight inmates) while they performed yard work on parks and recreation areas. Each morning, Officer Cooley would go to the Muscogee County Prison to pick up inmates who volunteered to serve on his work crew that day. Under Officer Cooley’s supervision, the inmates cut grass and did other yard work using a variety of equipment, which included power lawn mowers, weed eaters, chainsaws, and edgers.

On the day of the injury, Bryant was part of Officer Cooley’s inmate crew and was cutting grass using a three-wheeled power lawn mower. Bryant testified that one of the wheels ran into a depression in the ground, and the mower flipped over on its side with the engine still running and the blades spinning. With his momentum carrying him forward toward the mower, Bryant tried to jump over the mower to clear the blades, but in doing so his leg was cut by the spinning blades. Bryant alleged that the mower had two defective conditions that rendered it dangerous to use and contributed to his injury. First, he claimed that, when he lost control of the mower and it flipped over, the safety or kill switch, which was designed to shut down the engine under those circumstances, was not operational, and the engine continued to run and spin the blades. Second, he claimed that a rubber flap or guard on the side of the mower’s deck, where cut grass was dispelled, was missing. According to Bryant, when he attempted to jump over the mower, his leg was cut by the spinning blades where the rubber flap should have been located. Bryant also gave testimony indicating that Officer Cooley knew the safety or kill switch was not operational, because Officer Cooley told him that, to shut down the engine on the mower, he would need to manually pull the cap off the spark plug.

Officer Cooley testified to the contrary that he had experienced no maintenance problems with the mower at issue; that he inspected the mower the morning before Bryant used it; that the mower had not been altered since it had been in use for about a year prior to the injury; that the mower had a kill switch designed to be released by the operator to shut down the engine; that it was not necessary to disengage the spark plug to shut down the engine; and that the rubber flap on the side of the mower’s deck had not been removed. In addition to supervising the inmates on the crew, Officer Cooley testified about his responsibility for maintenance of the equipment.

Q: Do you have any responsibility regarding maintenance of the equipment?
A: Yes.
Q: What would that be?
A: Well, make sure it’s all operational.
Q: When you say you make sure it’s all operational, do you actually do an inspection?
A: Yes, sir.
Q: As far as the specific lawn mowers, would you do an inspection or what would you do as far as the inspection and maintenance?
A: Inspection. Make sure it’s all operational; make sure there’s oil, gas in it; blades are sharp.
Q: If anything needed to be worked on or repaired on the mower, would you do it?
A: No, sir.
Q: How would you handle the repair?
A: I would take it down to our maintenance shop.

According to Officer Cooley, he inspected the equipment twice daily (before and after work) to “make sure it’s clean, serviceable, [and] ready for the next day’s work.” Additionally, Officer Cooley gave a sworn statement that “[t]here is no written policy or procedure governing the manner in which the mower was to be inspected. . . .” The director of the Parks and Recreation Department testified regarding a question about unwritten repair policy as follows:

Q: Is there a policy if there’s a piece of equipment that needs to be repaired? Is there a policy about how that process is supposed to be carried out to get the repair completed?
A: Normally if it’s a vehicle or equipment, policy is you notify your supervisor that you got a piece of equipment that’s down, you getting ready to take it to Fleet Maintenance or small engines or large engines or whatever the case may be. And you take that piece of equipment down.

Officer Cooley’s counsel conceded at the hearing on the motion for summary judgment that there was evidence in the record that Officer Cooley knew the kill switch on the mower had been disabled. Based on evidence that Officer Cooley knew the kill switch was disabled when he provided the mower for Bryant’s use, Bryant narrowed his opposition to summary judgment, and argued at the hearing that Officer Cooley negligently failed to perform a ministerial duty — to take the mower out of service and have it repaired before giving it to him to cut grass. The trial court agreed, found evidence that Officer Cooley knew the kill switch was disabled, and denied Officer Cooley’s motion for summary judgment on the basis that this alleged negligence was ministerial in nature.

“The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to he made on a case-by-case basis.” Davis v. Effingham County Bd. of Commrs., 328 Ga. App. 579, 584-585 (760 SE2d 9) (2014) (citation and punctuation omitted). The mere fact that taking equipment out of service to have it repaired is a simple and definite act does not make it a ministerial act; to be ministerial, the act “must be done in ‘the execution of a specific duty’McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009).” Roper v. Greenway, 294 Ga. 112, 114 (751 SE2d 351) (2013). Accordingly, “[a] ministerial duty may be established by evidence such as a written policy, an unwritten policy, [or] a supervisor’s specific directive. . . .” Id. at 114-115 (citations omitted). But “[procedures or instructions [in a policy or directive] adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.” Id. at 115 (citation and punctuation omitted). As to Officer Cooley’s duty to have equipment repaired, there was no written policy, and no evidence of an unwritten policy or directive which established a ministerial duty by requiring Officer Cooley “to take specified action in a specified situation.” Id. at 115, n. 2 (citation and punctuation omitted). Rather, the only evidence is the existence of a general policy to get equipment repaired “when you got a piece of equipment that’s down,” or when repairs are needed to make the equipment “operational” or “serviceable and ready.” This evidence established a discretionary repair duty which required Officer Cooley to exercise personal deliberation and judgment to reach reasoned conclusions about when a piece of equipment, which was still capable of being operated to get yard work done, should nevertheless be taken out of service to have a particular mechanical or safety component repaired. Id. at 116. Officer Cooley’s exercise of judgment is inherent in assigning priorities between the duty to get the assigned yard work done with the equipment provided, and the need to maintain the equipment in a reasonably safe working condition. Parrish v. State of Ga., 270 Ga. 878, 879 (514 SE2d 834) (1999) (correctional officer’s actions in supervision of prisoner work detail were discretionary because the officer was “required to exercise judgment in choosing the priority to be assigned to ... diverse responsibilities”). There was no policy, written or unwritten, which directed Officer Cooley to take specified action in a specified situation to handle these responsibilities.

There is no need to remand this case for the jury to resolve whether or not Officer Cooley was aware (or should have been aware) that the mower’s kill switch was disabled, or that the rubber flap on the deck was missing. Even assuming (as the parties and the trial court did) that evidence showed Officer Cooley had this knowledge, the record shows that there was no policy or directive which established that Officer Cooley had a ministerial duty to take the mower out of service and have it repaired. On this record, the issue of whether Officer Cooley was entitled to official immunity was one of law for the trial court. Cameron, 274 Ga. at 124. Although there is evidence to support the conclusion that Officer Cooley’s failure to have safety features on the mower repaired before it was used was negligent, and may have amounted to reckless disregard for Bryant’s safety, there was no basis to find that Officer Cooley’s actions were ministerial and that he forfeited the protection of official immunity. Because, construing the record in Bryant’s favor, there is no issue of material fact, and Officer Cooley was entitled, as a matter of law, to official immunity, the trial court erred by denying Officer Cooley’s motion for summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided March 30, 2015

Page, Scrantom, Sprouse, Tucker & Ford, James C. Clark, Jr., for appellant.

Bennett & Casto, Mark A. Casto, for appellee.

I am authorized to state that Judge Boggs joins in this dissent.

       Official immunity, like sovereign immunity, “is an entitlement not to stand trial rather than a mere defense to liability.” (Citation and punctuation omitted.) Taylor, supra at 363, n. 3. The Court of Appeals “has held that an order denying such an immunity claim is appealable under the collateral order doctrine order because the order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment.” (Citation and punctuation omitted.) Id.


author: Branch, Judge.

text:
    A14A1598.
    McELVANEY v. ROUMELCO, LLC et al.
    (771 SE2d 419)
   Branch, Judge.

Plaintiff Sean McElvaney brings this appeal from the trial court’s grant of summary judgment to defendants Roumelco, LLC and its principal, Constantine Roumel (collectively, “Roumelco”), in McElvaney’s suit for breach of contract concerning his investment of nearly $300,000 in Roumelco and its Atlanta réal estate venture. The trial court held that McElvaney and Roumelco failed to reach a sufficiently definite agreement as to McElvaney’s ownership interest in the company but that McElvaney could proceed on his unjust enrichment claim. On appeal, McElvaney argues that genuine questions of material fact remain as to his breach of contract claim and that the trial court also erred when it denied his request to appoint a receiver for Roumelco. Because we agree with the first of these contentions, we reverse the grant of summary judgment to Roumelco, vacate the denial of McElvaney’s motion for a receiver, and remand for further proceedings.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (emphasis omitted).

Viewed in favor of McElvaney, the record shows that in the fall of 2010, McElvaney hired Roumel to work for Armada Group, Inc. (“Armada”), a company owned solely by McElvaney. While working at Armada, Roumel learned of an opportunity to buy an apartment complex in southeast Atlanta and approached McElvaney for help in acquiring the property. At Roumel’s request, McElvaney provided all of a $100,000 deposit required to enter into a contract to purchase the property as well as an additional $38,000 in legal fees. Before the closing, which was set for June 2011, McElvaney and Roumel orally agreed that in exchange for 50 percent ownership of and shared decisionmaking concerning the property, they would together give or otherwise “find,” “from friends, relations, wherever,” an additional $150,000 in cash necessary to close on the property. As McElvaney testified:

It was always the agreement between . . . me and Mr. Roumel that we would find the money, together, [that] we would work our best in both directions to raise the money. It didn’t matter whether it was him putting the money or me putting the money, but it was $300,000 . . . needed to close this deal, as I thought.

The parties also agreed that “when the apartment complex would be sold, or when [it] generated operating profits, the monies that were used to fund the purchase of the complex were to be repaid first to [McElvaney],” with “the remaining profits divided equally between” him and Roumel.

In May and June 2011, McElvaney made arrangements to borrow $144,350 from Kevin McKenna, a friend in Ireland, to be paid back to McKenna within three months at 25 percent annual interest. On June 3, Roumel wrote an e-mail to a third party naming McElvaney as his “partner” in the property. On June 9, Roumelco purchased the property for cash and debt in the amount of $1,400,000. That same day, Roumel sent an e-mail to McElvaney noting, “DONE DEAL PARTNER!!!!!!!!!” On June 14, McElvaney wired the $144,000 he had borrowed from McKenna to Armada; on the same day, Roumel wrote himself an Armada check for that amount and deposited it in his personal bank account.

In the fall of 2011, and as a result of McElvaney’s insistence on “written documentation” of the parties’ agreement “from the start of the actual closing of the deal,” Roumel and McElvaney executed a “Promise to Transfer Stock Agreement,” which they backdated to June 10, 2011, and which provided in relevant part:

Roumel agrees to transfer 47% of stock [in Roumelco] to Sean McElvaney. In return[,] Sean McElvaney is to make [a] cash investment of approximately 300k to Roumelco, LLC. The actual transfer of stock is to take place any time Sean McElvaney desires. In addition Mr. McElvaney is to receive priority pay[ment] for his full investment.

The stock agreement also provided that Roumel would transfer three percent each of Roumelco stock to two other men, Constantine Dantoulis and Constantine Simoglou. On December 7,2011, Roumel wrote a letter to McElvaney and the two other minority owners as follows:

This letter acknowledges that each of you is entitled to the following percentage interest in the income, proceeds of sale, proceeds from refinancing debt, and all other items of net operating income and losses from the operation of the apartments known as Park Vista and located at 1940 Fisher Road, SE, Atlanta, Georgia. In addition, Sean (McElvaney) is entitled to receive from such proceeds, the balance of his contribution of the initial down payment of equity for the purchase of the apartments; that amount is AP[p]R[oximately] $200,000.00.

(Emphasis supplied.) The letter then restated that McElvaney owned 47 percent of Roumelco, with Dantoulis and Simoglou owning three percent each. In August 2012, Roumel sent an e-mail to prospective buyers of the property in which Roumel again referred to McElvaney as his “partner.”

Meanwhile, in the course of the year following the June 2011 closing, with the apartment complex generating revenue of approximately $100,000 a month, McElvaney wrote a series of checks from his solely owned company’s account totaling more than $30,000 for expenses associated with the property and received an unspecified amount from Roumelco as repayment of the funds he had advanced. Records from Roumelco’s Wells Fargo account and testimony from the company’s own bookkeeper also indicate that between June 2011 and September 2012, Roumel used Roumelco funds for his own and his family’s expenses, made numerous ATM withdrawals amounting to over $20,000, and diverted over $60,000 of company funds into overseas accounts held by family members in Greece and Cyprus. Roumel also failed to pay amounts due on the complex’s mortgage, which went into default in February 2013, and its water bill.

On September 18, 2012, McElvaney brought this action against Roumel and Roumelco for breach of contract, specific performance, fraud, breach of fiduciary duty, unjust enrichment, and other claims, and seeking an accounting as well as declaratory and injunctive relief. In May 2013, Roumelco moved for summary judgment on all of McElvaney’s claims except unjust enrichment, arguing that Roumel and McElvaney had never reached any enforceable agreement as to McElvaney’s ownership interest in Roumelco. In June 2013, McElvaney moved for the appointment of a receiver concerning Roumelco. After a hearing, the trial court granted Roumel’s motion for summary judgment as to all McElvaney’s claims except unjust enrichment on the ground that undisputed evidence showed that the parties had never reached an enforceable agreement as to their respective ownership interests in Roumelco. The trial court also denied McElvaney’s motion for a receiver on the ground that McElvaney had failed to prove any ownership interest in the company and therefore lacked standing to obtain a receiver for Roumelco.

1. McElvaney argues that even if there was some initial uncertainty as to the precise terms of the oral agreement he reached with Roumel as to the two men’s ownership of Roumelco, the evidence, including the parties’ writings, conduct, and testimony, precludes summary judgment for Roumel on McElvaney’s breach of contract claim. We agree.

Under Georgia law, a contract does not exist unless the parties agree on all material terms. A contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain. Thus, a court will not enforce an agreement where it is left to ascertain the intention of the parties by conjecture.

Kitchen v. Insuramerica Corp., 296 Ga. App. 739, 743 (1) (675 SE2d 598) (2009) (punctuation and footnote omitted). But Georgia law “does not favor destruction of contracts on grounds of uncertainty,” such that an “indefinite” contract “may acquire more precision and become enforceable because of the subsequent words or actions of the parties.” Id. (punctuation and footnote omitted).

Even assuming that Roumel and McElvaney’s oral agreement was not sufficiently definite as to their respective ownership interests in Roumelco before the company bought the property at issue on June 9, 2010, it is undisputed that at some point in the fall of 2010, and again in December 2011, Roumel admitted in writing that McElvaney owned 47 percent of the company. Construed in McElvaney’s favor, the record also supports a conclusion that he obtained this ownership interest as consideration for his provision of at least $138,000 of his own funds and an additional $144,000 of borrowed funds.

Roumelco seeks to forestall this conclusion by pointing to apparent contradictions between McElvaney’s first amended complaint, which alleged that he agreed to “give” the $300,000 necessary to close the deal, and his deposition testimony, in which McElvaney testified that he agreed to “help find” the additional $150,000 necessary after the $138,000 already contributed. But McElvaney’s second amended complaint, which was filed before his deposition, alleged only that he would “fund” the amounts necessary “in the amount of approximately . . . $300,000” by combining approximately $150,000 of his own funds with an additional $144,000 procured from other sources. Further, arguable inconsistencies between McElvaney’s pleadings and his deposition testimony as to the sources of money used to obtain the property do not eliminate the question of fact established by Roumel’s post-closing memoranda as to whether the parties agreed to a division of ownership interests by that closing.

Roumelco also cites Razavi v. Shackelford, 260 Ga. App. 603 (580 SE2d 253) (2003), and Green v. Zaring, 222 Ga. 195 (149 SE2d 115) (1966), as support for his position that the parties failed to reach an enforceable agreement. In Razavi, we affirmed a trial court’s conclusion that an oral agreement to share equally the profits of a real estate venture was too vague to be enforced, commenting that “[p]erformance does not cure the deficiencies in an agreement that is so vague, indefinite, and uncertain as to make it impossible for courts to determine what, if anything, was agreed upon[.]” Id. at 605 (1) (punctuation and footnote omitted). But there was no evidence in Razavi that the plaintiff, who was seeking to cancel defendants’ liens on the properties at issue, ever admitted that the defendant had any ownership share in the venture, whereas the evidence before us contains two written admissions by Roumel as to McElvaney’s ownership interest in Roumelco. There was no allegation in Green, moreover, that any deficiencies as to certainty were “cured by performance or conduct of the parties,” id. at 199 (1), whereas Roumel’s two post-closing memoranda memorialize the parties’ intent to convey at least 47 percent of Roumelco to McElvaney.

Construed in McElvaney’s favor, this record raises a question of fact as to whether the parties to this transaction agreed to grant McElvaney an enforceable ownership interest in Roumelco by the time the company purchased the property. The trial court therefore erred when it granted Roumelco summary judgment on McElvaney’s breach of contract claim. Mon Ami Intl. v. Gale, 264 Ga.App. 739, 742 (2) (592 SE2d 83) (2003) (agreement that employee would receive ten percent of corporation as consideration for joining company was sufficiently definite to establish an enforceable contract); Kitchen, 296 Ga. App. at 743-744 (1) (trial court erred in granting summary judgment to defendant in plaintiff’s claim to enforce an agreement for 25 percent ownership interest of corporations “in partial consideration for his employment”).

2. McElvaney also argues that the trial court abused its discretion when it denied his motion to appoint a receiver. We order further proceedings on the issue.

OCGA § 9-8-1 provides: “When any fund or property is in litigation and the rights of either or both parties cannot otherwise be fully protected or when there is a fund or property having no one to manage it, a receiver of the same may be appointed by the judge of the superior court having jurisdiction thereof.” A receiver may be appointed “to take possession of and hold, subject to the direction of the court, any assets charged with the payment of debts where there is manifest danger of loss, destruction, or material injury to those interested.” OCGA § 9-8-3. Thus when a defendant has

fraudulently obtained money from [a] plaintiff and invested it in personal property, the plaintiff, who seeks to assert an equitable title or lien upon the property so purchased with his funds, is entitled to the appointment of a receiver to take charge of such property, and a temporary injunction, where the defendant is insolvent, and there is danger of the loss of such equitable title or lien[,] by the sale of such property by the insolvent defendant.

Decided March 30, 2015

Schreeder, Wheeler & Flint, John A. Christy, Scott D. McAlpine, Knight Johnson, Bryan M. Knight, Todd N. Robinson, Beal & Blitch, Andrew M. Beal, for appellant.

Bruce P. Brown, for appellees.

Crook v. Citizens Bank of Blakely, 153 Ga. 301 (111 SE 916) (1922) (citations omitted). “The grant or refusal of a receivership is a matter addressed to the sound legal discretion of the trial court, the exercise of which will not be interfered with on appeal unless such discretion be manifestly abused.” Fulp v. Holt, 284 Ga. 751, 752 (670 SE2d 785) (2008) (citation and punctuation omitted) (in light of evidence that a law firm partner misappropriated firm funds and borrowed money on the firm’s line of credit without the other party’s permission, a trial court did not abuse its discretion in appointing a receiver).

Roumelco argues that the request for a receiver is moot in light of the affidavit attached to their appellate brief suggesting that the property was sold in April 2014. Court of Appeals Rule 24 (g) instructs parties not to attach any document or exhibit to an appellate brief, however. Even if we were to consider Roumelco’s affidavit, moreover, McElvaney correctly points out that his motion sought a receiver as to both Roumelco, including “without limitation its rental income and bank accounts,” and the underlying property. The trial court denied the motion on the ground that McElvaney had no ownership interest in the company as a matter of law and therefore lacked standing to seek a receiver. In Division 1, we conclude that a question of fact remains as to the extent of McElvaney’s ownership interest in Roumelco, and the evidence outlined above suggests that company funds remain at risk. We therefore vacate that portion of the trial court’s order denying McElvaney’s motion for appointment of a receiver and remand for reconsideration of this issue, which is not moot. The trial court should exercise its discretion as to the appointment of a receiver as soon as practicable upon receipt of the remittitur from this Court.

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

Barnes, P. J., and Boggs, J., concur.

       The parties have not argued, and we do not reach, the merits of McElvaney’s remaining claims, including breach of fiduciary duty. McElvaney’s request for appointment of a receiver is addressed in Division 2 below.


author: BARNES, Presiding Judge.

text:
    A14A1603.
    MONK v. PARKER et al.
    (771 SE2d 424)
   BARNES, Presiding Judge.

We granted this discretionary appeal to the former counsel for a workers’ compensation claimant to consider whether the superior court properly affirmed the decision of the Workers’ Compensation Appellate Division granting the current counsel’s motion to dismiss the former counsel’s attorney fee lien. Because the superior court did not err in affirming the Appellate Division, we in turn affirm the superior court.

We note first that the record on appeal as it pertains to the issue before us is incomplete. The appellate record contains the superior court record, which in turn contains documents filed in the superior court and the record transmitted to the superior court from the Workers’ Compensation Board. While the Board record contains numerous documents, including 20 Notices of Hearing issued by the Board after the claimant’s former counsel withdrew from the case, it includes only some of the pleadings filed by the parties with the Board. For example, the record includes none of the parties’ Requests for Hearing (Forms WC-14), which would indicate who asked for the hearings and for what purpose, information that is not included in the Board’s hearing notices. Additionally, the record does not include the former counsel’s attorney fee lien, the current counsel’s motion to dismiss the lien, the former counsel’s response to the motion to dismiss, or any exhibits that might have been attached to any of those documents. While the former counsel cites to the exhibits he attached to his application for discretionary appeal, those documents are not part of the official record transmitted to this court from the clerk of the superior court.

Our rules specifically preclude consideration of “[documents attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court.” Court of Appeals Rule 24 (g); see Williams v. Fed. Nat. Mtg. Assn., 299 Ga. App. 574, 575 (682 SE2d 630) (2009). No different standard applies to exhibits attached to an application for review. “Allegations of fact appearing only in appellate briefs and unsupported by evidence in the record will not be considered on appeal.” Williams, 299 Ga. App. at 575. Further, “[i]t is the appellant’s responsibility to ensure that the appellate record contains the information necessary to decide the issue. Otherwise, he may not meet his burden of showing error from the record.” (Citation and punctuation omitted.) Nye v. State, 279 Ga. App. 347, 348 (1) (631 SE2d 386) (2006).

Thus, to the extent that the former counsel asks us to review the specific language of a Stipulation and Agreement between the claimant and the employer or the Board’s approval of that Agreement to determine whether either document established his right to fees or expenses regardless of his fee lien, we cannot do so. Based on the limited record before us, however, we can determine that the superior court did not err in affirming the decision of the Appellate Division, which held that the former counsel failed to perfect his lien as required by Board rules.

The evidence establishes without dispute that in November 2004, Tom Monk (“Former Counsel”) began representing a workers’ compensation claimant whose injury was eventually categorized in 2009 as catastrophic. The claimant terminated Former Counsel’s representation in February 2012, and Former Counsel filed an “Attorney Withdrawal/Lien,” Form WC-108b, via the Board’s electronic filing system, but did not serve copies of the form on the other lawyers. As noted earlier, this document is not in the record. The claimant hired Linda Parker and Larry Hanna (“Current Counsel”), who negotiated a Stipulation and Agreement (“the Agreement”) that was approved by the Board in August 2012. Neither the Agreement nor the Board order affirming it is included in the record, but the ALJ subsequently described the Agreement as “resolving indemnity issues but leaving medical open.” The Board order also directed Current Counsel to hold in escrow $77,385.74 in attorney fees and expenses pending “resolution of all attorney lien disputes.”

The Board issued a notice of mediation in January 2013, apparently related to the attorney fee dispute as it notes that “[f] ailure of former counsel to appear and present argument and evidence in support of any fee lien will result in the dismissal of the lien.” The date for the mediation was reset several times; the reason it was reset is not apparent from the notices in the record. The next record item is an ALJ order issued in June 2013, which states that Current Counsel had moved for an order dismissing Former Counsel’s lien for failing to serve a copy on all counsel, which was required by Board Rule 108 (e). Current Counsel had also sought permission to disburse the funds they held in escrow.

The ALJ found that Former Counsel had committed a technical violation of the rules in that he “[did] not deny that he failed to properly serve a copy of the Form 108b on all represented parties [sic], as is required by the Rule,” but held that the unserved parties were not harmed because they had received actual notice of the filing through the Board’s electronic filing system. The ALJ also found that Current Counsel had demonstrated “a certain lack of diligence” in failing to move for the lien’s dismissal until more than a year after it was filed, and set the matter for a hearing “as to the issue of the satisfaction of [Former Counsel’s] attorney fee lien.” The ALJ granted Current Counsel’s request for a certificate of immediate appeal, which the Appellate Division granted, and Current Counsel filed a notice of appeal.

After being briefed and hearing oral argument, the Appellate Division reversed the ALJ’s decision to deny Current Counsel’s motion to dismiss Former Counsel’s attorney fee lien. After observing that the legislature had granted the Board the authority under OCGA § 34-9-59 to adopt rules of procedure to govern the exercise of its functions, the Appellate Division held:

With regard to an attorney fee lien, if an employee and/or his attorney terminate their contract, the former attorney still is entitled to recover a fee if he has perfected his fee lien. See OCGA § 34-9-108 and Board Rule 108 (e). In order to perfect his attorney fee lien, the former attorney must file written notice of the contended value of services and/or expenses with the Board on Form WC-108b within twenty (20) days after (i) withdrawal from the case, or (ii) notice of termination in writing by the employee. Board Rule 108 (e). The former attorney “shall” serve a copy of the WC-108b on “all unrepresented parties and counsel.” Id. Failure to attach supporting documentation will result in the lien being denied. Id. The rule further adds “failure to perfect a lien in this manner will be considered a waiver of further attorney[ ] fees.” Id.
Additionally, Board Rule 61 (24) provides, in part, that an attorney withdrawing from a claim must file a WC-108b and follow the procedures outlined in Rule 108 (b). Also, an attorney who chooses to file a lien for services and/or expenses “shall file this form [WC-108b] with supporting documentation, and serve a copy on all counsel and unrepresented parties.” See Board Rule 61 (24).

The Appellate Division concluded that Former Counsel put forth no evidence disputing Current Counsel’s “allegation as to insufficient service of the attorney fee lien,” and held that notice from the Board’s electronic filing system was not a substitution for the service requirement contained in Board Rule 108 (e). Absent proper service, it concluded, the lien had not been perfected. The Division thus reversed the ALJ and granted Current Counsel’s motion to dismiss Former Counsel’s attorney fee lien.

Former Counsel appealed to the superior court, which affirmed the Appellate Division “based on the ‘any evidence’ standard of review,” and this court granted Former Counsel’s application for discretionary appeal.

1. Former Counsel contends that the superior court erred in reviewing the Appellate Division’s decision under the “any evidence” standard. When reviewing a workers’ compensation ruling, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the Appellate Division of the Board, and must affirm findings of fact as to disputed evidence if they are supported by any evidence. Ray Bell Constr. Co. v. King, 281 Ga. 853, 854 (642 SE2d 841) (2007). Both levels of court apply a de novo standard of review when considering the Appellate Division’s application of law to the facts. Trax-Fax, Inc. v. Hobba, 277 Ga. App. 464, 465 (627 SE2d 90) (2006).

Here, Current Counsel argues that the record does not establish that they received a computer-generated notice when Former Counsel filed his fee lien, and disputes that the Agreement acknowledged Former Counsel’s right to attorney fees. To the extent that the Appellate Division made disputed findings of fact, the superior court properly reviewed them under the “any evidence” standard of review, as does this court, but both courts review de novo the Appellate Division’s application of the law and its rules to the facts.

2. Former counsel contends that the Appellate Division erred in its “legal interpretation” of Board Rule 108 (e) by failing to uphold the ALJ’s determination that Current Counsel had waived the service requirement. He further argues that, “[b]y failing to uphold the initial finding of waiver, the State Board and the Superior Court entertained remedies outside its collective jurisdiction.”

OCGA § 34-9-58 grants the Board the ability to “exercise all powers and perform all the duties relating to the enforcement of [the Workers’ Compensation Act],” and OCGA § 34-9-59 empowers the Board to adopt rules of procedure to govern the exercise of its functions and hearings. “It is within the purview of [the appellate courts] to consider the validity of an agency rule by determining whether it comports with the legislative enactment which authorizes the rule.” Mulligan v. Selective HR Solutions, 289 Ga. 753, 756 (1) (716 SE2d 150) (2011). In reviewing an administrative agency’s interpretation of a statute it has the duty to enforce and its application of the rules it promulgated to carry out that duty, we ordinarily grant great deference to the agency’s decision. MARTA v. Reid, 295 Ga. 863, 867, n. 6 (763 SE2d 695) (2014); Lane v. Williams Plant Svcs., 330 Ga. App. 416, 416-417 (766 SE2d 482) (2014).

In this case, although the superior court did not review de novo the Division’s application of the law to the facts, we find no error in the superior court’s decision to affirm the Appellate Division’s dismissal of Former Counsel’s attorney fee lien. The Appellate Division did not entertain remedies outside of its jurisdiction; it simply applied its rules to the facts before it. Board Rule 108 governs the Board’s exercise of its authority to approve attorney fees found in OCGA § 34-9-108 (a), and Board Rule 108 (e) addresses the procedures required to file and perfect an attorney fee lien. The rule provides:

(e) An attorney of record who chooses to file a lien for services and/or expenses must do so by filing written notice of the contended value of such services and/or expenses with the Board on Form WC-108b within 20 days after (i) withdrawal from the case, or (ii) notice of termination of the contract in writing by the client. The attorney of record filing a lien shall serve a copy of Form WC-108b on all unrepresented parties and counsel. Failure to attach supporting documentation will result in the lien being denied. If the Board includes the issue of approval of the lien for determination at a hearing or mediation, and the attorney who filed the lien fails to appear and present evidence in support of the lien, then it shall be void. If all parties agree to resolution of a lien request prior to the initiation of litigation, then one of them must file with the Board Form WC-108b. Failure to perfect a lien in this manner will be considered a waiver of further attorney[ ] fees.

(Emphasis supplied.)

Here, Former Counsel did not serve a copy of Form WC-108b on Current Counsel as required by the Board’s rules, and the Appellate Division determined that therefore his lien was not perfected. Further, the record contains no evidence that Current Counsel even received actual notice of the filing through the Board’s electronic filing system, as the Appellate Division decision refers only to “an alleged generated notice of filing.” Reviewing this decision de novo, and deferring as we must to the Board’s promulgation and enforcement of rules pursuant to its legislative authority to regulate the award of attorney fees in workers’ compensation cases, we find no error in the superior court’s decision to affirm the Appellate Division.

Decided March 30, 2015.

Harriss & Hartman, Joseph T. Leman, for appellant.

Levy & Thompson, Richard S. Thompson, for appellees.

3. Former Counsel argues that the decision of the superior court and the Appellate Division unconstitutionally deprived him of his vested property right to attorney fees previously granted to him by the Board, citing to an exhibit attached to his application to this court for discretionary appeal. He also contends that Current Counsel “ratified the lien” by signing the Agreement subsequently approved by the Board, and argues that although the legislature gave the Board the power to adjudicate and award attorney fees, the Board had no equitable power to “exact a forfeiture” of a vested right.

This record does not establish that Former Counsel had a vested right to any fees. As previously addressed, the record does not include the Agreement or the Board’s order related to the Agreement, and Current Counsel disputes that either document granted Former Counsel a vested right to any fees. Instead, Current Counsel argues, the documents simply acknowledge the existence of a fee dispute, which even the ALJ described as “an alleged lien.” The record contains nothing to support the conclusion that the Board had already determined that Former Counsel was entitled to fees, and therefore this enumeration is without merit.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The record does include more than 500 pages of exhibits related to the claimant’s 2008 claim for designation of his injury as catastrophic and his 2010 request for coverage of dental expenses, in addition to more than 300 pages of transcripts from two hearings, none of which is related to the issue on appeal.

       Board Rule 108 (e) requires service on “all unrepresented parties and counsel,” not on “represented parties.”

       The Division affirmed that portion of the ALJ’s order denying Current Counsel’s request to ignore Former Counsel’s opposition to the motion to dismiss the lien, which Former Counsel apparently filed by paper, rather than electronically as required by the Board Rules. The Division held that the ALJ had discretion to accept the paper filing. That holding is not being considered in this appeal.


author: Boggs, Judge.

text:
    A14A1615.
    SEABOARD CONSTRUCTION COMPANY v. KENT REALTY BRUNSWICK, LLC.
    (771 SE2d 429)
   Boggs, Judge.

Seaboard Construction Company (“Seaboard”) appeals from the trial court’s grant of Kent Realty Brunswick, LLC’s (“Kent’s”) motion for summary judgment, and the court’s denial of its motion for summary judgment. For the following reasons, we affirm in part and reverse in part.

On appeal from the grant or denial of summary judgment, this court applies a de novo standard of review. Woodcraft by MacDonald, Inc. v. Ga. Cas. and Sur. Co., 293 Ga. 9, 10 (743 SE2d 373) (2013). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The stipulated facts reveal that in 2006, Harbor Development LP began to develop a 135-acre parcel for 1,600 residential lots and condominiums. Harbor contracted with Plant Improvement Company, Inc., d/b/a Seaboard Construction Company (“Seaboard”), to perform certain site preparation work on Phase I which consisted of 60 acres. During the performance of the site work, Harbor received 17 applications for payment and paid the company $6,261,192.52. A total of $326,661.50 remained unpaid when a dispute arose between the parties concerning the calculation and processing of the final application for payment. Seaboard subsequently filed five material-man’s liens, each in the amount of $363,959.81, against five separate properties of the development, two of which were owned by Kent, and one of which was owned by Harbor.

Four months after filing the liens, Seaboard filed suit against Harbor seeking payment of the unpaid retainage. Three days later, Kent filed a “Complaint for Damages and Equitable Relief” asserting defamation of title and seeking injunctive relief. Seaboard answered and counterclaimed to foreclose upon the liens. Shortly after the filing of Kent’s suit, Seaboard filed a “Notice of Filing of Action for Claim on Materialman’s Lien” for each of the Kent liens.

Following the filing of cross-motions for summary judgment, and after a hearing of the argument of counsel, the trial court granted Kent’s motion and denied Seaboard’s in a one-sentence order. During the hearing, however, the trial court concluded that the liens were invalid because they were not filed in the name of the lien holder and were excessive under OCGA § 44-14-361.1 (e). The court concluded further that there was a jury issue remaining on Kent’s slander of title claim.

1. Seaboard contends that the trial court erred in granting Kent’s motion for summary judgment on the validity of the liens. The court ruled on the record that the liens were invalid because they were not filed in the name of the lien holder and were excessive. We agree with the court’s latter conclusion that the liens were excessive, and therefore hold that the court did not err in granting Kent’s motion for summary judgment on this ground. See Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013) (appellate court may affirm the grant of summary judgment when it is right for any reason).

OCGA § 44-14-361.1 (e) provides: “In no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.” This court held in Elec. Distribs. v. Turner Constr. Co., 196 Ga. App. 359 (395 SE2d 879) (1990), that “[t]he focus of this defense is the amount the owner of the property has spent under the contract at the time the lien was filed, for the claimant is entitled to recover only the balance of the contract price remaining to be paid at the time the lien was filed.” Id. at 362 (2). That is, with regard to the work benefitting multiple properties, the amount of the contract relative to a particular owner’s property. The parties agree that the amount of remaining unpaid principal on the contract for the work in Phase I of the development was $326,661.50. This phase consisted of multiple parcels of property, one parcel of which, divided into multiple lots, was owned by Kent. Seaboard filed a lien in the amount of $363,959.81 on this parcel, and also filed a lien in the amount of $363,959.81 on property owned by Kent in Phase II of the development. The aggregate amount of liens filed against Kent property was therefore $727,919.62 (and the aggregate amount of liens filed against all five properties was $1,819,799.05). Because the aggregate amount of liens exceeded the remaining contract price for improvements made or services performed on Kent’s property, the liens violated the proscription of OCGA § 44-14-361.1 (e), and are therefore invalid. Cf. Gaster Lumber Co. v. Browning, 219 Ga. App. 435, 436 (1) (465 SE2d 524) (1995) (total amount of liens in excess of contract price); compare Dallas Bldg. Material v. Smith, 193 Ga. App. 512, 513 (388 SE2d 359) (1989) (appellant’s lien of $11,157.66 did not exceed the contract price for improvements made to owner’s property). The trial court therefore did not err in granting Kent summary judgment on this ground.

2. Seaboard argues that the trial court erred in failing to grant it summary judgment on Kent’s slander of title claim. We agree. OCGA § 51-9-11 provides that an “owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” And, “[i]n order to sustain an action of this kind, the plaintiff must allege and prove the uttering and publishing of the slanderous words; that they were false; that they were malicious; that he sustained special damage thereby; and that he possessed an estate in the property slandered.” (Citations and punctuation omitted.) Latson v. Boaz, 278 Ga. 113, 114 (598 SE2d 485) (2004); M&M Mtg. Co. v. Grantville Mill, LLC, 302 Ga. App. 46, 49-50 (3) (690 SE2d 630) (2010). Therefore Kent “could recover only such special damages as [it] actually sustained as a consequence of the alleged wrongful acts, and [it was] required to plead them plainly, fully, and distinctly.” (Citation and punctuation omitted.) Latson, supra.

Kent argues that it was unable to obtain a construction loan on its properties and “was preparing to offer into evidence at trial an appraisal which would have shown hundreds of thousands of dollars in losses. And, [it] intended to subpoena and call as a witness” the tax commissioner who appraised the properties. During oral argument on the motion for summary judgment, Kent made reference to an affidavit of a bank representative who he claims averred that “the individual lot holders went to seek a loan for thirteen million dollars and that [the bank] was unable to give them a loan... and that they could not close on a loan at that amount because there were five liens filed against various properties.” But this affidavit is not part of the record here on appeal, and in any case, this averment is not specific to Kent or any special damages suffered by Kent. Here, Kent only presented evidence of the attorney fees it incurred, and points to no other evidence in the record to support a claim for special damages. See M&M Mtg. Co., supra, 302 Ga. App. at 50 (3) (attorney fees do not constitute special damages).

Decided March 30, 2015.

Roberts Tate, James L. Roberts IV, Jason M. Tate, for appellant.

The Williams Litigation Group, Nathan T. Williams, Bishop & Lindberg, James A. Bishop, Gilbert Harrell Sumerford & Martin, Jeffrey P. Lutz, for appellee.

As the movant for summary judgment on this claim, Seaboard has demonstrated that there is no evidence sufficient to create a genuine issue of material fact on an element of Kent’s special damages. And Kent failed to come forth with specific evidence giving rise to a triable issue. Since Kent “offered no evidence of special damages, an essential element of [its] claim for slander of title,” the trial court erred in denying Seaboard’s motion for summary judgment on this claim. See Latson, supra, 278 Ga. at 116; M&M Mtg. Co., supra, 302 Ga. App. at 50 (3).

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. Branch, J., concurs in judgment only.

       This work included “[e]arthwork, soil erosion control, pavement, water distribution system, storm drainage, wastewater collection system, grassing and site concrete.”

       It appears that the difference between the total amount of the liens and the amount remaining on the contract is accumulated interest.

       After the liens were filed, the other two owners filed for bankruptcy, and Harbor’s lender foreclosed on its property.

       Several months before the entry of judgment, Harbor entered into a consent judgment with Seaboard in the amount of the unpaid retainage, which the parties assert has been submitted to the trial court for entry as a final judgment in a separate action.

       Seaboard argues that we should apply tort law, specifically the principle of joint and several liability, to conclude that it was entitled to file liens against each property for the full amount of the principal balance remaining on the contract, but “our lien laws and procedures are in derogation of the common law, [and] must be construed strictly against the creditor and in favor of the debtor.” Brockett Rd. Apts. v. Ga. Pacific Corp., 138 Ga. App. 198, 199 (225 SE2d 771) (1976). We are therefore limited to a strict construction of OCGA § 44-14-361.1 (e).

       We note that while the trial court’s order states that it granted Kent’s motion for summary judgment and denied Seaboard’s motion, the court during the hearing on the motion for summary judgment concluded that a jury issue remained regarding Kent’s slander of title claim.