author: BARNES, Presiding Judge. McMlLLIAN, Judge,

text:
    A12A2253.
    GARRETT et al. v. SOUTHERN HEALTH CORPORATION OF ELLIJAY, INC.
    (739 SE2d 661)
   BARNES, Presiding Judge.

Southern Health Corporation of Ellijay, Inc. entered into an option agreement to purchase land for the development of a new hospital facility. Under the remedies provision of the option agreement, Southern Health could recover damages from the sellers for breach of contract only if their breach was “willful and intentional.” After Southern Health exercised its option to purchase the land but the sellers failed to close on the sale, Southern Health commenced this action against the sellers seeking, among other things, damages for breach of contract, and the sellers counterclaimed for fraudulent inducement. The trial court subsequently entered partial summary judgment in favor of Southern Health on its breach-of-contract claim, concluding that the uncontroverted evidence showed that the sellers had willfully and intentionally breached the option agreement, entitling Southern Health to damages under the remedies provision as a matter of law. The trial court also granted partial summary judgment in favor of Southern Health on the sellers’ counterclaim and denied the sellers’ two separate motions for summary judgment.

For the reasons discussed below, we affirm the trial court’s grant of summary judgment to Southern Health on the sellers’ counterclaim for fraudulent inducement and its denial of the sellers’ motions for summary judgment. However, we reverse the trial court’s grant of Southern Health’s motion for partial summary judgment on its damages claim for breach of the option agreement because there are genuine issues of material fact as to whether the sellers’ breach was “willful.”

Summary judgment is appropriate if the pleadings and the undisputed evidence show that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, the appellate courts conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.

(Citation and punctuation omitted.) Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012). Guided by these principles, we turn to the record in the present case.

The Parties and the Property. Southern Health operates North Georgia Medical Center and Gilmer Nursing Home in Gilmer County, Georgia. In 2007, Southern Health became interested in purchasing approximately 25 acres of unimproved property located on Highway 515 in Gilmer County (the “Property”). Southern Health wanted to build a new hospital on the Property.

The Property was comprised of six tracts. Mr. James P. Garrett, individually, owned one of the tracts. Ms. Roberta Mundy, personally, together with Mr. Garrett, owned another one of the tracts. The remaining four tracts were owned jointly by Mr. Garrett and Mr. William “Randy” Mundy, Jr., until the latter’s death in 2006, whereupon Mr. Mundy’s interest in the land passed to his estate. Following Mr. Mundy’s death, a North Carolina court appointed his wife, Ms. Mundy, to serve as administratrix of his estate.

Execution of the Option Agreement. Southern Health entered into negotiations to purchase the Property from Mr. Garrett and Ms. Mundy (collectively, the “Sellers”). On April 17, 2007, Mr. Garrett and Ms. Mundy, individually and as administratrix of her late husband’s estate, executed an agreement with Southern Health under which they granted it an irrevocable option to purchase the Property in return for the payment of certain “option money” (the “Option Agreement”). The Sellers represented in the Option Agreement that they were the owners of good and marketable fee simple title to the Property, and they agreed to convey the Property at closing by limited warranty deed if the option was exercised.

Southern Health agreed to purchase the Property for $3,300,000 if it exercised the option. In Paragraphs 4 (d) and 22 (a) of the Option Agreement, the parties acknowledged that the purchase price included not only the Property, but also the installation of utility lines and facilities on the Property by the Sellers (the “Utility Work”).

Mr. Garrett chose not to consult with an attorney before signing the Option Agreement. All of the communications and information that Ms. Mundy received about the Property and the Option Agreement came through Mr. Garrett. Ms. Mundy also declined to consult with an attorney.

The Inspection Period. The Option Agreement included an initial “Inspection Period” during which any of the parties could terminate the contract. The deadline for the Inspection Period was July 23, 2007. Under Paragraph 4 (a) of the Option Agreement, Southern Health had the right to inspect and evaluate the Property and, if it was unsatisfied with the Property for any reason, terminate the Option Agreement before the end of the Inspection Period. After inspecting the Property, Southern Health elected not to terminate the Option Agreement during the Inspection Period.

Also during the Inspection Period, the Sellers had the right to determine whether they wanted to be responsible for the Utility Work. Under Paragraph 4 (d) of the Option Agreement, if the Sellers determined that they did not want to perform the Utility Work, they had the right to terminate the Option Agreement at any time before the end of the Inspection Period. Both Sellers testified that they did not exercise their right to terminate the Option Agreement during that time period.

The Commitment Letter. Because the Sellers did not terminate the contract within the Inspection Period, they were obligated under Paragraph 4 (e) of the Option Agreement to provide Southern Health with a “commitment letter” from a surety committing to issue a payment and performance bond that would cover the Sellers’ performance of the Utility Work (the “Commitment Letter”). The Sellers never provided the Commitment Letter, despite several correspondence from Southern Health demanding that they fulfill their contractual obligation.

The Utility Work. Because the Sellers did not terminate the contract within the Inspection Period, they also were obligated under Paragraphs 4 (d) and 22 (a) of the Option Agreement to perform the Utility Work within 16 months of the closing of the sale if Southern Health exercised the option. During the summer of 2007, Mr. Garrett met with a government engineer from the water and sewer authority, along with Southern Health’s representatives, to discuss the Utility Work. At that meeting, Mr. Garrett stated that he did not intend to pay for the water and sewer Utility Work, despite the fact that the Sellers were contractually obligated to perform the Utility Work at no additional expense to Southern Health if it exercised the option. Separately, Mr. Garrett told Ms. Mundy several times that he intended for others to bear at least some of the financial responsibility for performing the Utility Work, and Ms. Mundy agreed with him.

That same summer, representatives of Southern Health met with Mr. Garrett on another occasion to discuss the Utility Work, and he expressly refused to perform the Utility Work unless funds from other sources were found to pay for it. In response, counsel for Southern Health explained that if the company exercised the option, it might have no alternative but to sue to enforce the Sellers’ obligation to perform the Utility Work. Mr. Garrett “basically” responded that Southern Health should “go ahead” and sue the Sellers.

The Exercise of the Option. On October 9, 2007, Southern Health exercised the option to purchase the Property. The parties agreed that the closing date for the sale would be December 7, 2007.

In a letter dated October 15, 2007, Southern Health addressed the upcoming closing and the failure of the Sellers to fulfill all of their contractual obligations up to that point. In the letter, Southern Health formally notified the Sellers that they had defaulted on their obligation to provide the Commitment Letter under the Option Agreement. Southern Health demanded prompt cure and further advised the Sellers that, regardless of whether they procured the Commitment Letter, Southern Health expected them to provide a payment and performance bond at closing (as required by Paragraph 22 (b) of the Option Agreement) and to perform the Utility Work within 16 months of the closing (as required by Paragraph 22 (a)).

The Failure to Close. In preparation for the scheduled closing, counsel for Southern Health sent a letter dated November 30,2007 to the Sellers and their recently retained counsel that included a closing agenda and drafts of the closing documents, requested a form of the performance bond, and solicited the Sellers’ comments. In a letter dated December 3, 2007, Sellers’ counsel responded to Southern Health’s letter by pointing out a problem that he alleged had arisen with the upcoming closing. Counsel stated in the letter that, based on advice from North Carolina counsel, he believed that all of Mr. Mundy’s heirs (including his two children and their spouses) would need to sign the limited warranty deed to convey the Property to Southern Health at closing. As a “simple solution” to this problem, counsel proposed that Southern Health accept a quitclaim deed from the Sellers rather than the limited warranty deed required by Paragraph 8 of the Option Agreement.

In a letter from its counsel dated that same day, Southern Health rejected the Sellers’ proposal to close on a quitclaim deed rather than a limited warranty deed. Counsel stated that the title insurance company for the transaction had been informed of the circumstances of the estate in North Carolina, and the insurer had advised that it would be sufficient for only the Sellers to sign all of the closing documents. As such, counsel for Southern Health asserted that there were no “genuine impediments” that would prevent the Sellers from closing on the scheduled date.

Counsel for the Sellers responded to Southern Health in a letter dated December 5, 2007, stating that the Sellers would not provide a limited warranty deed and noting that they “were not close to being ready to close.” Counsel further asserted that because the Sellers had not been represented by counsel when they initially signed the Option Agreement, they had been unaware of the need for the heirs to sign the warranty deed until he had been hired to represent them and had taken steps to obtain legal advice from North Carolina counsel.

The day before the scheduled closing, Southern Health wired to the escrow agent sufficient funds that, when combined with amounts it had previously paid, represented the full purchase price for the Property. On December 7, 2007, Southern Health’s representatives were present in the escrow agent’s offices at the appointed hour for closing and were prepared to consummate the transaction on its behalf. However, the Sellers did not appear at the closing, and counsel for the Sellers confirmed by e-mail that they were “not ready to close.” It is undisputed that the Sellers did not provide the Commitment Letter and performance bond to Southern Health, did not execute any closing documents, did not convey title of the Property to Southern Health by limited warranty deed, and did not perform the Utility Work on the Property.

The Lawsuit. Paragraph 12 of the Option Agreement set forth certain remedies if the failure to consummate the sale of the Property was the result of the uncured default of the Sellers:

If, after Purchaser exercises the Option, said sale is not consummated by reason of the uncured default of Seller, then the Option Money shall be refunded to Purchaser, and Purchaser may exercise any and all remedies available to Purchaser at law or in equity, including an action for specific performance (in which event, the Option Money shall not be refunded to Purchaser); provided, however, Purchaser shall not be entitled to damages unless the default by Seller hereunder was willful and intentional.

Pursuant to Paragraph 12, Southern Health filed the instant action for specific performance, breach of contract, fraud, attorney fees, and punitive damages after the Sellers failed to appear at the closing or otherwise consummate the sale of the Property. Southern Health later amended the complaint to withdraw its claim for specific performance and instead seek only monetary damages for the breach.

The Sellers answered and filed a counterclaim for fraudulent inducement. The Sellers alleged in their counterclaim that language contained in Paragraph 4 (d) of the Option Agreement regarding the Inspection Period was deceptive and had misled them.

The Three Motions for Summary Judgment. Following discovery, the Sellers moved for summary judgment. They asserted that the uncontroverted evidence showed that their default on the Option Agreement was not “willful and intentional,” and that, as a result, Southern Health was not entitled to recover damages under Paragraph 12 of the Option Agreement. In this regard, the Sellers argued that an act was not “willful” if it was “due to reasonable cause, and lacked evil intent or bad motive,” and they contended that their default was merely the result of their failure to sign the warranty deed after learning that Mr. Mundy’s children and their spouses had an interest in the Property under North Carolina law.

Southern Health then filed its own motion for partial summary judgment on its claim for breach of contract and on the Sellers’ counterclaim for fraudulent inducement. According to Southern Health, the uncontroverted evidence showed that the Sellers’ default on the Option Agreement was in fact “willful and intentional.” In this respect, Southern Health argued that “willful” meant “voluntary and intentional, not necessarily malicious,” and that the Sellers’ decision not to fulfill its obligations under the Option Agreement had been a matter of deliberate choice rather than an accident or happenstance. Additionally, Southern Health argued that the Sellers’ fraudulent inducement counterclaim could not be predicated simply on their failure to properly read and understand the language in the Option Agreement.

The Sellers subsequently filed a second motion for summary judgment. They asserted that Southern Health was not entitled to seek damages for breach because Paragraph 20 (a) of the Option Agreement restricted the remedies available to Southern Health, when certain contractual contingencies were not satisfied, to either waiving those contingencies or terminating the contract without further recourse; that the uncontroverted evidence showed that the Sellers had terminated the Option Agreement during the Inspection Period in an e-mail from their real estate broker to Southern Health’s real estate broker; and that the Option Agreement had not been signed by an authorized representative of Southern Health and was unenforceable under the “equal dignity rule.”

The Summary Judgment Order. Following a hearing, the trial court granted partial summary judgment in favor of Southern Health on its breach-of-contract claim and on the Sellers’ counterclaim for fraudulent inducement, and the court denied the Sellers’ two motions for summary judgment. The trial court ruled that “the only remaining issue for determination by a jury is the amount of damages that Sellers owe and are required to pay [Southern Health] for their willful and intentional breaches of contract.”

1. The Sellers contend that the trial court erred in granting partial summary judgment in favor of Southern Health on its breach-of-contract claim. In granting partial summary judgment to Southern Health, the trial court concluded that the uncontroverted evidence showed that the Sellers’ default on the Option Agreement was “willful and intentional,” thereby entitling Southern Health to damages for breach of contract under Paragraph 12 of the Option Agreement as a matter of law. We conclude, however, that the phrase “willful and intentional” as used in Paragraph 12 required evidence that the Sellers’ default was done intentionally and in bad faith. Because there was conflicting evidence regarding whether the Sellers acted in bad faith, the trial court’s grant of partial summary judgment to Southern Health on this issue was erroneous.

An option agreement, such as the one at issue here, “is simply a contract by which the owner of property agrees with another person that he shall have the right to buy the described property at a fixed price within a certain time specified.” (Citation and punctuation omitted.) Kent v. Graham Commercial Realty, 279 Ga. App. 537, 542-543 (2) (631 SE2d 753) (2006). An option agreement is subject to the same rules governing the construction of other contracts. Jakel v. Fountainhead Dev. Corp., 243 Ga. App. 844, 846 (534 SE2d 199) (2000).

“[T]he cardinal rule of contract construction is to ascertain the intention of the parties.” (Punctuation and footnote omitted.) Board of Commrs. of Crisp County v. City Commrs. of City of Cordele, 315 Ga. App. 696, 699 (727 SE2d 524) (2012). If the terms of a contract are plain and unambiguous, the contractual terms alone determine the parties’ intent. Id. A dictionary can supply the plain and ordinary meaning of a term, see Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 497 (1) (455 SE2d 601) (1995), “[b]ut a dictionary does not always provide a complete answer.” Archer Western Contractors, Ltd. v. Estate of Pitts, 292 Ga. 219, 224 (2) (735 SE2d 772) (2012). If a term used in a contract “is of uncertain meaning and may be fairly understood in more ways than one,” it is ambiguous, Akron Pest Control, 216 Ga. App. at 497 (1), and we apply the rules of contract construction in an effort to resolve the ambiguity. Board of Commrs. of Crisp County, 315 Ga. App. at 699. The proper construction of a contract is a question of law for a court to determine. OCGA § 13-2-1.

Mindful of these principles, we must first determine whether the words “willful and intentional” as used in Paragraph 12 of the Option Agreement are clear and unambiguous. We turn first to the word “intentional,” which we conclude is unambiguous. “Intentional” is commonly understood to mean “[d]one with the aim of carrying out the act.” Black’s Law Dictionary (9th ed. 2009). See also Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/ dictionary/intentional (defining “intentional” as “done by intention or design”).

We reach a different conclusion with regard to the word “willful.” On the one hand, “willful” can be defined simply as voluntary and deliberate. See Black’s Law Dictionary (9th ed. 2009) (defining “willful” as “[voluntary and intentional, but not necessarily malicious”). See also Gibson v. State, 265 Ga. App. 325, 328 (593 SE2d 861) (2004) (quoting American Heritage Dictionary definition of “willful” as “being in accordance with one’s will; deliberate”) (punctuation and emphasis omitted). On the other hand, “willful” can be defined as going beyond mere intentionality or deliberateness to also require an element of bad faith. See In the Matter of: Inquiry Concerning Judge No. 94-70, 265 Ga. 326, 327-328 (1) (454 SE2d 780) (1995) (“willful misconduct” refers to “actions taken in bad faith”); Weston v. Dun Transp. & Stringer, 304 Ga. App. 84, 89 (1) (695 SE2d 279) (2010) (“Wil[l]ful conduct is based on an actual intention to do harm or inflict injury.”) (citation and punctuation omitted); Telecash Investments v. Lagrone, 241 Ga. App. 66, 68 (1) (525 SE2d 112) (1999) (“willful” refers to “conduct of a criminal or quasi-criminal nature”) (punctuation and footnote omitted).

Because “willful” has an “uncertain meaning and may be fairly understood in more ways than one,” use of that word in Paragraph 12 of the Option Agreement is ambiguous. Akron Pest Control, 216 Ga. App. at 497 (1). See also Johnson & Johnson v. Guidant Corp., 525 FSupp.2d 336, 349 (II) (B) (S.D. N.Y. 2007) (“ ‘Willful’ is a notoriously ambiguous word, which can indicate any number of mental states.”); 57A AmJur2d Negligence § 260 (updated Nov. 2012) (noting that “[gjenerally, no spirit of ill will or intentional misconduct is essential to prove willfulness,” but nevertheless noting that in some jurisdictions “willful misconduct does involve the element of malice or ill will”). Accordingly, we must apply the rules of contract construction in an effort to resolve the ambiguity. See Board of Commrs. of Crisp County, 315 Ga. App. at 699.

If “willful” is defined as voluntary and deliberate, its meaning would be interchangeable with the meaning of “intentional” used in the same paragraph of the Option Agreement. But it is a well-established rule of contract construction that a court should avoid an interpretation of a contract which renders any of its terms meaningless or mere surplusage. See Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 435 (1) (718 SE2d 343) (2011). See also Woodbery v. Atlas Realty Co., 148 Ga. 712, 715 (1) (98 SE 472) (1919) (noting that “none of the words [in a contract] are to be considered as redundant, if a reasonable intendment can be given them”). Thus, to avoid rendering the word “intentional” in Paragraph 12 as mere surplusage, we must construe the word “willful” to include an element of bad faith. See Pomerance v. Berkshire Life Ins. Co. of America, 288 Ga. App. 491, 494-495 (1) (654 SE2d 638) (2007) (avoiding construction of the term “substantial” in an insurance contract that would render it interchangeable with the term “material” used in the same contract) (physical precedent only); Tyson v. McPhail Properties, 223 Ga. App. 683, 689 (6) (478 SE2d 467) (1996) (concluding that contract “would not have used two different terms in two sequential paragraphs to describe the same thing”). See also Metropolitan Life Ins. Co. v. Noble Lowndes Intl., 643 NE2d 504, 508 (N.Y. Ct. App. 1994) (concluding that in light of the language of the contract, the term “willful” “was intended by the parties to subsume conduct which is tortious in nature, i.e., wrongful conduct in which defendant willfully intends to inflict harm on plaintiff at least in part through the means of breaching the contract between the parties”).

It follows that to recover damages under Paragraph 12 of the Option Agreement, Southern Health must show that the Sellers’ default, which resulted in the failure to consummate the sale of the Property, was done intentionally and in bad faith. And while the uncontroverted evidence shows that the Sellers’ decision not to appear at or otherwise carry through with the closing of the sale of the Property was intentional, there is conflicting evidence on the issue of bad faith.

The Sellers argued to the trial court that their failure to close “was due to reasonable cause, and lacked evil intent or bad motive.” In this respect, they contended that their failure to close was caused by their need to have Mr. Mundy’s heirs consent to and sign the closing documents, a problem of which they were unaware until they retained counsel during the course of the transaction. According to the Sellers, they refused to close because they did not want to sign a limited warranty deed representing that they had full and complete title to the Property when the heirs also had an interest in the Property. To support their argument, the Sellers could point to the letters from their counsel to Southern Health explaining the problem involving the heirs, and Mr. Garrett’s deposition testimony that he was unable to convince Brian Mundy, who was one of the heirs, to consent to the sale of the Property by the time of the scheduled closing. Additionally, Brian Mundy testified in his deposition that initially he had not wanted the sale of the Property to occur and was hesitant about the transaction when he first met with Mr. Garrett about it.

In contrast, Southern Health maintained in the trial court that the alleged issue over Mr. Mundy’s heirs was manufactured by the Sellers, and that “the real reason” the Sellers would not close was that they had made the decision not to perform the Utility Work or their other obligations under the Option Agreement. Southern Health pointed to evidence that before the issue of the heirs arose as a point of contention between the parties, the Sellers failed to obtain a Commitment Letter, and Mr. Garrett repeatedly stated that he was unwilling to pay for the Utility Work as required in the Option Agreement. Furthermore, to support its position that the issue of the heirs was a mere pretext, Southern Health pointed to deposition testimony from Ms. Mundy that she believed the dispute between the parties was over the Utility Work, that she was unaware of any communication between Mr. Garrett and her children (i.e., Mr. Mundy’s heirs) about the sale of the Property, that her children never objected to the sale of the Property, and that her children never claimed to have any interest in the Property. Southern Health also pointed to other portions of Brian Mundy’s deposition testimony where he appeared to contradict himself by stating that he had never been asked by anyone to attend the closing or to sign a warranty deed, and could not recall having ever refused to sign a warranty deed for the Property.

In light of the conflicting evidence, a genuine issue of material fact exists as to whether the Sellers defaulted on the Option Agreement in bad faith, and thus as to whether their default was “willful” as that word must be construed in this case. Accordingly, a jury must resolve whether the Defendant’s default was “willful,” which will determine whether Southern Health can recover damages for breach of contract under Paragraph 12 of the Option Agreement. See generally Columbus Clinic v. Liss, 252 Ga. App. 559, 562 (556 SE2d 215) (2001) (“The intention with which an act itself is done is peculiarly a question for the jury.”); Coleman v. Garrison, 80 Ga. App. 328, 334 (5) (56 SE2d 144) (1949) (question of whether defendant’s act is “willfully or innocently done is generally for the jury”) (citation and punctuation omitted). We thus reverse the trial court’s grant of partial summary judgment to Southern Health on its claim for breach of contract.

2. The Sellers also contend that the trial court erred in granting partial summary judgment to Southern Health on their counterclaim for fraudulent inducement. Their counterclaim was predicated on Paragraph 4 (d) of the Option Agreement, which provided in relevant part:

Seller and Purchaser acknowledge and agree that it is Purchaser’s intention that the Purchase Price includes not only the Property, but also the Utility . . . Work, all as more particularly described in Section 22 below. During the Inspection Period, Seller shall determine whether or not it desires to be responsible for the performance of such construction work, at no cost or expense to Purchaser. Purchaser agrees to provide Seller with such documentation as shall reasonably be required by the applicable governmental jurisdiction to assist Seller in making its determination hereunder, including, but not limited to, providing Seller with such engineering studies as may reasonably be required by such applicable governmental jurisdiction ....

(Emphasis supplied.) According to the Sellers, the highlighted contractual language was deceitful and inconsistent with what the Sellers had understood would be provided to them by Southern Health during the Inspection Period to assist them in determining whether they wished to perform the Utility Work.

The Sellers’ counterclaim for fraudulent inducement was without merit, as the trial court properly concluded.

Although [the Sellers] asserted that the written terms of the [Option Agreement] deviated from what [they] understood the terms would be, one cannot claim to be defrauded about a matter equally open to the observation of all parties, absent the existence of a special relationship of trust or confidence. It was incumbent upon [the Sellers] to exercise ordinary diligence to make [their] own independent verification of the contractual terms [,] and [their] failure to do so bars an action based on fraud.

(Citations omitted.) Fuller v. Greenville Banking Co., 230 Ga. App. 63, 64-65 (1) (495 SE2d 320) (1997). See also Campbell v. Citizens & Southern Nat. Bank, 202 Ga. App. 639, 640 (1) (415 SE2d 193) (1992) (“One not prevented from reading the contract, and having the capacity and opportunity to do so, cannot after signing it claim he was fraudulently induced to sign by promises which contradict the express terms of the contract.”). Hence, we affirm the trial court’s grant of Southern Health’s motion for partial summary judgment on the fraudulent-inducement counterclaim.

3. The Sellers also contend that the trial court erred in denying their second motion for summary judgment in which they raised several arguments for why Southern Health’s claims should be dismissed. We will discuss each of their arguments in turn.

(a) In seeking summary judgment, the Sellers argued that under Paragraph 20 (a) of the Option Agreement, Southern Health’s only two options upon the Sellers’ failure to perform certain “closing contingencies” before the closing date (such as providing the Commitment Letter and the performance bond) was to waive those contingencies or terminate the contract. Because Southern Health never terminated the Option Agreement, the Sellers argued that Southern Health necessarily waived all of the “closing contingencies” by expressing its intent to proceed with the closing on December 7, 2007 and thus could not predicate its damages claim on the Sellers’ failure to perform any of those contingencies. We are unpersuaded.

Paragraph 20 of the Option Agreement provided in relevant part:

CLOSING CONTINGENCIES. Notwithstanding anything to the contrary contained in this Agreement, the obligations of Purchaser under this Agreement shall be and are hereby made subject to and contingent upon the satisfaction of certain contingencies (hereinafter referred to as the “Closing Contingencies”), which are more particularly described below. The Closing Contingencies are for the benefit of Purchaser, and Purchaser may at any time waive all or any thereof without affecting any of other terms and conditions of this Agreement. Each party hereto shall exercise reasonable, good faith efforts to satisfy those of the Closing Contingencies for which it is responsible (as indicated below).
A. Should any of the Closing Contingencies set forth in this Section 20 (A) . . . fail to be satisfied on or before the Closing Date, then Purchaser may elect either to (a) waive such contingency by written notice to Seller, or (b) terminate this Agreement by written notice to Seller, in which event the sum of $100.00 shall be disbursed to Seller out of the Option Money, and the entire balance of the Option Money shall be refunded to Purchaser and {except as otherwise herein expressly provided) no party hereto shall have any further rights or obligations hereunder.

(Emphasis supplied.) Paragraph 20 (a) then provided a list of “Closing Contingencies” that had to be performed by the Sellers on or before the closing date, which encompassed providing the Commitment Letter and the performance bond.

As an initial matter, the unambiguous language of Paragraph 20 (a) makes clear that the provision was intended to be “for the benefit of Purchaser,” Southern Health. To read the provision as Sellers do to restrict, rather than expand, Southern Health’s remedies under the Option Agreement would be inconsistent with this clearly expressed intent. See generally Board of Commrs. of Crisp County, 315 Ga. App. at 699 (ascertaining the intent of the parties is the “cardinal rule” of contract construction);Ashkouti v. Widener, 231 Ga. App. 539, 541 (3) (500 SE2d 337) (1998) (contractual provision intended for plaintiff’s benefit could be waived by him and should not be used to preclude plaintiff’s breach-of-contract claim).

Furthermore, Southern Health did not sue the Sellers merely for their failure to carry out one or more of the listed “Contract Contingencies” prior to the scheduled closing. Rather, Southern Health sued the Sellers for their total default on the Option Agreement resulting in the failure to consummate the sale of the Property, a lawsuit specifically authorized by Paragraph 12 of the Option Agreement. Under the applicable rules of statutory construction, “the whole contract should be looked to in arriving at the construction of any part.” (Citation and punctuation omitted.) Immel v. Immel, 298 Ga. App. 424, 426 (680 SE2d 505) (2009). Courts are “to give effect to each provision [ ] and to interpret each provision to harmonize with [the] other[s].” (Punctuation and footnote omitted.) Board of Commrs. of Crisp County, 315 Ga. App. at 700. Thus, Paragraph 20 (a) must be read together with Paragraph 12, which provided Southern Health the right to recover damages for a “willful and intentional” default by the Sellers, if the sale of the Property was “not consummated by reason of [the Sellers’] uncured default.”

When read in conjunction with Paragraph 12, it is clear that Paragraph 20 (a) was not intended to curtail the right of Southern Health to sue for breach of contract if the sale of the Property failed to occur. More specifically, in the event that the Sellers failed to perform any one of the “Closing Contingencies,” Paragraph 20 (a) gave Southern Health the option to terminate the contract or waive the contingency and insist on closing the sale. However, if the closing ultimately failed to occur due to the uncured default of the Sellers, then Paragraph 12 authorized Southern Health to sue for breach of contract. That is what occurred here. Consequently, Southern Health was authorized to bring the instant action for damages pursuant to Paragraph 12 of the Option Agreement, and the trial court did not err in denying summary judgment to the Sellers on the asserted ground.

(b) The Sellers further argued in their second motion for summary judgment that the uncontroverted evidence showed that they had terminated the Option Agreement during the Inspection Period through a July 9, 2007 e-mail from their real estate broker to Southern Health’s real estate broker. The Sellers maintained that the Option Agreement was no longer binding on them from that point forward and could not be relied upon by Southern Health to support its breach-of-contract claim. Again, we are unpersuaded.

On its face, the July 9, 2007 e-mail did not effect a termination of the Option Agreement. The e-mail was from one real estate broker to another expressing the broker’s belief that the sale would not close, and there is no evidence that the e-mail was forwarded or copied to any of the contracting parties, even though the Option Agreement required all notices to be delivered “to the party being given such notice at the address of such party set forth” in the contract. Moreover, the e-mail expressly acknowledged that the parties were “still under contract” and did not use the word “terminate” or any other words of similar import.

Additionally, three days after the e-mail, the parties signed an amendment to the Option Agreement extending the Inspection Period, which would have been pointless if a termination had just occurred. And, on November 7, 2007, four months after the e-mail, the parties signed an “Amendment to Option Agreement,” expressly stating that the Option Agreement “shall remain in full force and effect as originally executed.” Finally, both Sellers testified that they did not terminate the Option Agreement during the time frame of the Inspection Period.

Under these circumstances, the July 9, 2007 e-mail from one broker to another cannot reasonably be construed as notice from the Sellers to Southern Health that they were terminating the Option Agreement. Rather than effecting a termination of a $3,300,000 deal, the e-mail simply involved one broker expressing her belief to the other that the transaction ultimately would not close. The trial court therefore committed no error in rejecting the Sellers’ argument that they were entitled to summary judgment because the Option Agreement had been terminated during the Inspection Period. See, e.g., King Indus. Realty v. Rich, 224 Ga. App. 629, 630 (2) (481 SE2d 861) (1997) (warnings or predictions of future termination did not themselves constitute notice of termination as required under contract); Shiflett v. Anchor Rome Mills, 78 Ga. App. 428, 433 (3) (50 SE2d 853) (1948) (landlord’s letter could not be construed as notice of termination of lease contract, given that “nowhere in said purported notice did it state that the contract was canceled or that the same was terminated”).

(c) Lastly, the Sellers argued that they were entitled to summary judgment because the Option Agreement had not been executed by a representative of Southern Health shown to have authority to act on its behalf, and because the contract was unenforceable under the “equal dignity rule.” These arguments lack any merit.

First, the uncontroverted evidence showed that the Option Agreement was executed by a representative of Southern Health authorized to act on its behalf. The first page of the Option Agreement identified Southern Health as the purchaser, and Paragraph 11 expressly provided that “[e]ach party hereto warrants to each other party hereto that the warranting party has full power and authority to enter into this Agreement and perform its obligations hereunder.” The signature page of the Option Agreement reflects that it was signed by Sheila Brockman, in her capacity as the Assistant Secretary of Southern Health, and both Ms. Brockman and her direct supervisor testified in their respective depositions, without contradiction, that Ms. Brockman had authority to sign the contract on behalf of Southern Health. The Sellers have not pointed to any conflicting evidence which would suggest that Ms. Brockman lacked authority to act on behalf of Southern Health, and we have found none.

Second, the Sellers’ argument that the Option Agreement was unenforceableunderthe“equaldignityrule”assetforthinOCGA § 10-6-2 is misplaced. Pursuant to that rule, “the authority of an agent to execute an instrument required by the Statute of Frauds to be in writing must also be in writing.” Dunn v. Venture Building Group, 283 Ga. App. 500, 502 (1) (642 SE2d 156) (2007). See OCGA § 10-6-2 (“Where the exercise or performance of an agency is by written instrument, the agency shall also be created by written instrument.]”). Because the Statute of Frauds requires that an option contract for the purchase of land be in writing, see OCGA § 13-5-30 (4); Estate of Ryan v. Shuman, 288 Ga. App. 868, 871 (1) (655 SE2d 644) (2007), the authority of an agent to execute such a contract likewise must be in writing. See Dunn, 283 Ga. App. at 502 (1). Nevertheless, even if Ms. Brockman’s authority to sign the Option Agreement on behalf of Southern Health was given to her verbally rather than in writing, the Sellers are not the correct parties to challenge her authority under the “equal dignity rule.” See Barron Reed Constr. v. 430, LLC, 275 Ga. App. 884, 886 (1) (622 SE2d 83) (2005) (concluding that “in cases where the [‘equal dignity rule’] is invoked, the invoking party is the principal who is challenging the authority of its own alleged representative”) (citations and punctuation omitted). Thus, the Sellers were not entitled to rely upon the “equal dignity rule” in support of their second summary judgment motion, which the trial court properly denied.

Decided March 8, 2013.

John T. Longino, for appellants.

Smith, Gambrell & Russell, Marcia M. Ernst, Colin R. R Delaney, for appellee.

Judgment affirmed in part and reversed in part.

McFadden, J., concurs. McMillian, J., concurs specially.

McMlLLIAN, Judge,

concurring specially.

Although I concur fully in Divisions 2 and 3,1 cannot agree with all that is said in Division 1. I am particularly concerned that the majority has rewritten the parties’ agreement to insert an additional term — “bad faith” — which is itself subject to varying interpretations and which the majority does not define.

I do believe, however, that under the terms of the Option Agreement, a genuine issue of material fact exists as to whether the Sellers’ default was “willful and intentional.” The parties did not and could not have intended for the Sellers to go forward with the closing if there was a true legal impediment to the Sellers’ ability to close. And, clearly, the inability to give clear title to the property would constitute such an impediment. For this reason, and based on the facts as presently developed, I agree that the issue of whether the Sellers’ default was “willful and intentional” for purposes of recovering damages under the Option Agreement must be submitted to a jury for resolution.

       Because genuine issues of material fact exist, we affirm the trial court’s denial of the Sellers’ first motion for summary judgment on Southern Health’s breach-of-contract claim.

       On appeal, the Sellers also argue for the first time that the Option Agreement was unenforceable because there is no competent evidence of record that Southern Health’s Board of Directors voted to approve the Option Agreement, as required by Paragraph 20 (b) of the contract, which listed certain “Closing Contingencies” that had to be satisfied by Southern Health. Because the Sellers failed to raise this argument in the trial court, we decline to consider it here. See Wellons, Inc. v. Langboard, Inc., 315 Ga. App. 183, 186 (1) (726 SE2d 673) (2012).

       In rejecting the Sellers’ proposal to close on a quitclaim deed rather than a limited warranty deed, counsel for Southern Health relied on information from the title insurance company to assert that there were no “genuine impediments” to prevent the Sellers from closing. This suggests that even Southern Health expected that the parties would not go forward with the closing if the Sellers truly had a legal impediment to conveying clear title.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A2312.
    ANDREWS v. GLOSTER.
    (739 SE2d 699)
   BARNES, Presiding Judge.

This is the second appearance of this case before this Court. In Ford v. Reddick, 319 Ga. App. 482 (735 SE2d 809) (2012), we affirmed the grant of summary judgment to La’Rhonda Reddick, the executor of the estate of Ruby Lee Gloster, in Reddick’s action to set aside two warranty deeds that were executed by Kaiser Ford. The relevant facts show that Gloster gave a general power of attorney to Ford, after which Ford filed deeds to convey certain real property belonging to Gloster to “Morison Outreach, A Trust,” as grantee. Gloster was not aware of the conveyance until she received notice of a tax penalty related to the property. When Ford did not convey the property back to Gloster as she had requested, she filed a complaint to set aside the deeds and for damages. The trial court granted Gloster’s motion for summary judgment upon finding that the deeds were invalid as they conveyed property to a trust instead of a trustee.

In Ford we affirmed the trial court on appeal, and further found that

in addition to Ford, the brief of appellants lists “Morison Outreach, Trust/Co-Trustee” and “Tanenankhaha Andrews, Co-Trustee” as appellants. Ford signed the brief on his own behalf, and Andrews signed the brief on his own behalf and on behalf of “Morison Outreach, Trust/Co-Trustee.” But Andrews was never made a party to this action and therefore lacks standing to appeal. “It is well settled that only a party to the case can appeal from a judgment, or one who has sought to become a party as by way of intervention and has been denied the right to do so.” (Citation and punctuation omitted.) Degussa Wall Systems v. Sharp, 286 Ga. App. 349, 350 (648 SE2d 687) (2007). See also OCGA § 5-6-33. Nor does it appear that either Ford or Andrews is an attorney who can represent Morison Outreach before this court. See OCGA § 15-19-51 (a) (1). Consequently, the only proper appellant is Ford, and we do not address the enumeration of error asserted on behalf of Andrews and Morison Outreach.

(Emphasis supplied.) 319 Ga. App. at 482-483 (1).

Decided March 8, 2013.

Tanenankhaha Andrews, pro se.

Clark & Bellamy, Andrew W. Clark, for appellee.

In this case, which enumerates the same claims made in Ford, Morison Outreach, as “Trust/Co-Trustee, appellant” and Tanenankhaha Andrews as “Co-Trustee, Appellant pro se” appear as appellants. As the Court found in Ford, however, Andrews was never made a party to the case below. Although the record includes instances in which Andrews identifies himself as an agent for the Morison trust and as the “co-trustee” and “trust protector” of the trust, the record does not contain any evidence to support his contentions, nor does it establish that he was ever a party in any context in the underlying action.

Thus, because Andrews was never made a party to the action, nor does it appear that he can legally represent the Morison Trust, he lacks standing to appeal the trial court’s grant of summary judgment to Gloster. See Davis v. Deutsche Bank Nat. Trust Co., 285 Ga. 22, 24 (673 SE2d 221) (2009) (“the order or judgment must be appealable by the party filing the notice of appeal”).

Accordingly, this appeal is dismissed. Degussa, 286 Ga. App. at 351.

Appeal dismissed.

McFadden and McMillian, JJ., concur.

       Gloster died during the appeal of this case, and Reddick was substituted as the party plaintiff.


author: McFadden, Judge.

text:
    A12A2436.
    EVANS v. THE STATE.
    (739 SE2d 673)
   McFadden, Judge.

After a jury trial, Telliton Evans was convicted of armed robbery, possession of a knife during the commission of a felony, and hijacking a motor vehicle. He appeals, arguing that the trial was barred by double jeopardy, that the evidence was insufficient, that an in-court identification was improper, that his trial counsel was ineffective, and that the trial court imposed an improper sentence for the hijacking offense. Because no plea in bar was filed and a second trial after a mistrial due to a hung jury does not constitute double jeopardy, there was enough evidence to support the jury’s verdict, no objection to the in-court identification was raised and such identification was admissible, and there has been no showing that counsel’s performance was either deficient or prejudicial, we affirm. However, while the parties agree that the trial court did originally impose an incorrect sentence for hijacking a motor vehicle, it appears that the trial court may have corrected that sentence but failed to include such correction in the record. Accordingly, the case is remanded to the trial court for entry of the correct sentence.

1. Double jeopardy.

Evans complains that the trial constituted double jeopardy because it took place after an earlier trial had ended in a mistrial when the jury was unable to reach a verdict. But as Evans acknowledges in his brief, he did not file a plea in bar raising a double j eopardy claim prior to the second trial. “His failure to file a written plea in bar before his second trial operates as a waiver of his subsequent challenge on double jeopardy grounds. [Cits.]” McCormick v. Gearinger, 253 Ga. 531, 534 (3) (322 SE2d 716) (1984).

Moreover, even if the challenge had not been waived, it is without merit.

Retrial of a criminal defendant after a mistrial caused by the inability of the jury to reach a verdict does not constitute double jeopardy where there is manifest necessity for declaring the mistrial. Where the jury is hopelessly deadlocked, this constitutes manifest necessity for declaring a mistrial.

(Citation omitted.) Leonard v. State, 275 Ga. App. 667, 668-669 (621 SE2d 599) (2005).

2. Sufficiency of the evidence.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This [c]ourt determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979),] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

(Citations and punctuation omitted.) Campbell v. State, 314 Ga. App. 299, 300 (724 SE2d 24) (2012).

So viewed, the evidence shows that on the evening of December 23, 2009, Shanal Amin had just gotten into her car in the parking lot of a shopping center when a man approached the car and yanked open the door. The man sat on Amin’s lap and put his face only a couple of inches from hers; he threatened Amin with a knife, holding it to her throat; and he demanded her money. Amin gave him the few dollars that she had, and then the man ordered Amin to give him her car keys, which she did. He then threw Amin out of the car and drove away in her car. Five days later, a police officer found Evans sitting in Amin’s car. That same day, a detective met with Amin, and she identified Evans from a six-person photographic lineup as the man who had robbed her. She also identified him at trial.

Evans argues that his mere presence in the victim’s stolen car was insufficient to support his convictions. However, the evidence showed more than Evans’ mere presence in the vehicle; it showed that Evans was identified by the victim as the man who had robbed her at knifepoint. “The victim’s testimony alone [, including her identification of Evans as the perpetrator,] established the essential elements of the offenses. Based upon the evidence set forth above, [Evans’] convictions were authorized under the standard of Jackson v. Virginia[, supra].” (Citations omitted.) Lester v. State, 309 Ga. App. 1, 2 (1) (710 SE2d 161) (2011).

3. In-court identification.

Evans enumerates that the trial court erred in allowing the victim’s in-court identification of him because it was tainted by a pretrial identification based on an impermissibly suggestive photographic lineup. However, as Evans acknowledges, he did not object at trial to the in-court identification. “Appellate review of the issue is waived due to failure to object at trial. [Cits.]” Brooks v. State, 281 Ga. 514, 518 (5) (640 SE2d 280) (2007).

Furthermore, even if the pretrial identification was tainted, the victim’s subsequent in-court identification of Evans as the perpetrator was not inadmissible. “[I]f an out-of-court identification is impermissibly suggestive, an in-court identification is [still] admissible if it does not depend upon the prior identification, but has an independent origin.” (Citation and punctuation omitted.) Escobar v. State, 279 Ga. 727, 729 (2) (620 SE2d 812) (2005). Here, the victim testified that as she was in the driver’s seat of her car Evans sat on her lap. He was not wearing a mask and held his face only a couple of inches from her face. The incident lasted for one minute, and she was looking at his face the whole time. Thus, the victim’s viewing of Evans as he sat on her lap during the commission of the crimes provided an independent basis for her in-court identification. See Escobar, supra; Fletcher v. State, 277 Ga. 795, 797 (3) (596 SE2d 132) (2004); Wilson v. State, 275 Ga. 53, 59 (3) (562 SE2d 164) (2002).

4. Ineffective assistance of counsel.

Evans claims that his trial counsel was ineffective in failing to object to the victim’s in-court identification of him and in failing to file a plea in bar based on double jeopardy. In order to prevail on such claims of ineffective assistance of counsel, Evans “must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” (Citations and punctuation omitted.) Sigman v. State, 287 Ga. 220,221 (2) (695 SE2d 232) (2010). Evans has failed to make either showing.

As an initial matter, we note that it appears from the transcript of the motion for new trial hearing that Evans’ trial counsel was not called to testify at the hearing. Where, as here, trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome the presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Hill v. State, 290 Ga. 493, 499 (722 SE2d 708) (2012). Furthermore, as explained above in Divisions 1 and 3, retrial after a mistrial due to a deadlocked jury does not constitute double jeopardy, and the victim’s in-court identification of Evans was not improper. Thus, any challenges by counsel on those grounds would have been without merit, and “[tjrial counsel cannot be deemed ineffective for failure to make a futile or meritless objection.” (Citation and punctuation omitted.) Thomas v. State, 318 Ga. App. 849, 858 (5) (b) (734 SE2d 823) (2012).

5. Sentence for hijacking a motor vehicle.

Evans contends that the trial court erred in sentencing him to life without parole for the offense of hijacking a motor vehicle. The state acknowledges in its brief that such a sentence was improper, but asserts that the trial court corrected the error by vacating the improper sentence and resentencing Evans to serve 20 years for the hijacking a motor vehicle offense. The state includes a purported quote from the order denying the motion for new trial in which the trial court imposes the appropriate 20-year sentence after noting that the defendant and the state agreed that the original life without parole sentence was erroneous. However, the state has not included a record citation for that quote, and the order denying the motion for new trial included in the record before us does not contain the purported resentencing language. The state also has not provided a record citation for a new final disposition by the court actually resentencing Evans to the appropriate 20-year term, and our review of the record reveals only the original life without parole sentencing form. However, our review of the transcript from the motion for new trial hearing does indeed confirm that the defendant and the state agreed, before the trial judge that the life without parole sentence for hijacking was not authorized.

Decided March 8, 2013.

Walker L. Chandler, for appellant.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

Accordingly, the case is remanded to the trial court to assure correction of the improper life without parole sentence for hijacking a motor vehicle and entry of a corrected sentence. See Jones v. State, 318 Ga. App. 342, 350 (4) (733 SE2d 400) (2012) (case remanded to trial court to correct error in written sentence).

Judgment affirmed and case remanded with direction.

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


author: Miller, Presiding Judge.

text:
    A12A2456.
    LITTLEJOHN v. THE STATE.
    (739 SE2d 682)
   Miller, Presiding Judge.

Following a jury trial, Daniel Kirk Littlejohn was convicted of burglary (OCGA § 16-7-1 (a) (2009)), theft by taking (OCGA § 16-8-2), and second degree criminal damage to property (OCGA § 16-7-23 (a) (1)). Littlejohn filed a motion for new trial, which the trial court denied. On appeal, Littlejohn contends that the trial court erred (i) in denying his Batson challenge; (ii) in intimating an opinion as to the credibility of a witness and his guilt; (iii) in admitting similar transaction evidence without conducting a Uniform Superior Court Rule (“USCR”) 31.3 hearing; and (iv) in restricting the scope of his cross-examination of two witnesses. In addition, Littlejohn contends that (v) his trial counsel provided ineffective assistance. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the trial evidence shows that on the evening of August 6, 2007, the victims discovered that their residence in Monroe County had been burglarized. The residence was located in a rural area near the county line abutting the city of Macon. The victims observed that the perpetrator had gained entry by breaking through the steel gate and kicking in the side door of the residence. The victims noticed that the residence had been ransacked and that numerous items had been stolen during the burglary, including a computer, a printer, a PlayStation II video-game system, several guns, a digital camera, a video camera, a crossbow, a chainsaw, two weed eaters, a small motorcycle, and a drug recognition expert (“DRE”) bag that the male victim had obtained during his law enforcement training as a POST-certified City of Macon police officer. The physical damage sustained to the residence as a result of the burglary exceeded $500. The total value of the victims’ loss for the damaged and stolen items was $4,397.92.

The victims reported the burglary to the local sheriff’s office, and officers were dispatched to investigate the matter. An officer took photographs of the scene. The officer also recovered a partial shoe print and a partial fingerprint, but neither print was sufficient to identify a suspect.

One day after the burglary incident, Littlejohn contacted his acquaintance, and attempted to sell him several of the victims’ stolen items. Littlejohn was unaware that his acquaintance was a confidential informant who had supplied information to local law enforcement officers on several prior occasions. The informant testified that Littlejohn, whom he identified by his alias “Quiet Man,” drove to the informant’s residence in Macon and showed the informant the stolen items. When the informant observed a police book with a badge inscription among the stolen items, the informant refused the stolen items in fear that the police may have been involved. In efforts to reassure the informant, Littlejohn advised that the items had been taken from a location in Monroe County.

After Littlejohn left the residence, the informant contacted an investigator with the Monroe County Sheriff’s Department and advised that he had seen some of the items that had been stolen during the burglary. The investigator had known the informant for almost 24 years and had used the informant to obtain information in several prior investigations. The investigator stated that the informant had never previously provided false information to him, the informant’s information had always been accurate, and the informant’s information had led to numerous arrests and convictions.

The informant agreed to assist the investigator with the burglary investigation, and made arrangements with Littlejohn to purchase the stolen items. After purchasing the stolen items from Littlejohn, the informant turned the items over to the investigator. The informant also gave the investigator a description of the truck that Littlejohn had been driving.

The investigator requested the informant’s additional assistance in locating Littlejohn and the truck. The informant made arrangements to meet Littlejohn at a designated location. The informant notified the investigator of the arrangements, and the investigator traveled to the designated location in accordance with the plan. After observing the truck matching the informant’s description, the investigator called local officers for backup assistance.

The investigator observed Littlejohn enter the truck and drive away from the location. The investigator followed Littlejohn and attempted to conduct a stop. When the investigator activated his patrol lights, Littlejohn suddenly accelerated and led the investigator on a high-speed chase. During the course of the chase, Littlejohn’s truck collided with another patrol vehicle. Littlejohn was ejected from the truck and attempted to crawl away from the scene. Little-john was apprehended, arrested, and charged with the offenses related to the burglary incident.

During the ensuing trial, the State introduced Littlejohn’s prior burglary conviction as similar transaction evidence. An investigator testified that Littlejohn had been involved in the burglary of another residence located in the rural area of Monroe County near the county line abutting the city of Macon. In that incident, Littlejohn had gained entry into the residence by breaking through the back door. After stealing several valuable items from the residence, Littlejohn attempted to sell the stolen items to a pawn shop and to his acquaintances. Following his arrest, Littlejohn executed a waiver of his rights and gave the investigator a statement admitting that he had committed that burglary offense.

At the conclusion of the trial in the instant case, the jury returned a verdict finding Littlejohn guilty of the charged offenses.

1. Littlejohn first contends that the trial court erred in denying his Batson challenge since the State used its peremptory strikes in a discriminatory manner.

The record shows that after the jury was selected, trial counsel initially confirmed that the composition of the jury appeared to be correct. The trial court then excused the jury pool. Before the jury was sworn, however, trial counsel announced that he had a Batson motion that he wanted to make on the record. Trial counsel argued the basis for his motion, noting that the State had exercised its strikes as to jurors 3, 8, 67, 69, 70, and 85, all of whom were African-Americans. Trial counsel later acknowledged that the State had a valid basis for striking juror 69 since his occupation as a counselor for inmates may have caused concern for the State. Trial counsel nevertheless insisted that the State’s exercise of strikes against the other five jurors was discriminatory. The trial court directed the prosecutor to explain the basis for her strikes.

After the prosecutor gave her explanations, the trial court denied the Batson motion. The trial court ruled that Littlejohn’s challenge was untimely since it was not raised until after the jury had been released from the courtroom. The trial court further found that the prosecutor had offered race-neutral explanations for its strikes and that no intentional discrimination had been shown.

Thereafter, the trial proceedings adjourned and resumed two days later. After handling several pretrial matters, the trial court brought the impaneled jury into the courtroom and administered the jury oath.

As an initial matter, we note that the trial court erred in ruling that Littlejohn’s Batson challenge was untimely. A Batson challenge is untimely when it is made after the jury has been sworn. See Laney v. State, 271 Ga. 194, 195 (3) (515 SE2d 610) (1999) (ruling that a Batson challenge should be made before the jury is sworn); Barrow v. State, 269 Ga. App. 635, 639 (6) (605 SE2d 67) (2004) (ruling that a Batson challenge made after the jury has been impaneled and sworn is untimely). This Court has previously held that a Batson challenge is timely when made after the jury is selected but before it is sworn. See Wright v. State, 186 Ga. App. 104, 105 (1) (366 SE2d420) (1988). Since Littlejohn made his Batson challenge before the jury was sworn, it was timely. Id.

The analysis of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven the proponent’s discriminatory intent.

(Citation and punctuation omitted.) Toomer v. State, 292 Ga. 49, 52 (2) (a) (734 SE2d 333) (2012).

Since the trial court directed the State to explain its strikes, the preliminary question of whether Littlejohn had established a prima facie case of discrimination is moot. See Drane v. State, 271 Ga. 849, 851 (1), n. 3 (523 SE2d 301) (1999) (ruling that the preliminary finding as to prima facie discrimination is moot once the proponent gives reasons for its strikes and the trial court makes its findings); Odom v. State, 241 Ga. App. 361, 363 (2) (526 SE2d 646) (1999) (holding that because the trial court ruled upon the ultimate question of intentional discrimination, the preliminary issue as to the prima facie case of discrimination was rendered moot). Accordingly, the State’s explanations must be examined. See Odom, supra, 241 Ga. App. at 363 (2).

At step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this second step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.... If the proponent of the strike carries its burden by providing a race-neutral explanation for the peremptory strike, the trial court must advance to step three of the Batson analysis and decide whether the opponent of the strike has proven the proponent’s discriminatory intent in light of all the circumstances that bear upon the issue of racial animosity. This involves an evaluation of the credibility of the strike’s proponent, which in turn may depend on the specificity and case-relatedness of the explanation for the strike given at step two. ... At the third stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. . . . [W]e look to our State’s trial judges to ferret out and eliminate invidious discrimination in the jury selection process. But they should do so using the well-defined framework set forth in Batson... and the similar decisions of this Court.

(Citations and punctuation omitted.) Toomer, supra, 292 Ga. at 54-55 (2) (b). Bearing these principles in mind, we turn to address the prosecutor’s explanations for the strikes.

(a) The prosecutor stated that she struck jurors 3 and 8 because they were unemployed. The prosecutor’s explanation presented a justifiable and race-neutral basis, and thus, the trial court’s findings as to these strikes were proper. See Ware v. State, 258 Ga. App. 706, 708 (2) (574 SE2d 898) (2002).

(b) The prosecutor said that she struck juror 67 because he nodded his head when she asked if he would have some sort of bias against a confidential informant’s testimony. She claimed that based upon juror 67’s nodding of his head, she believed that he would have a problem judging the confidential informant’s testimony fairly. The prosecutor also explained that she struck juror 70 because the juror did not make eye contact with her, she felt that the juror was more inclined, toward the defense position, and she did not feel any interpersonal interaction with the juror. The trial court was authorized to conclude that the prosecutor had offered race-neutral explanations for these strikes.

Significantly, there is no voir dire transcript in the record, and the portion of the trial transcript reflecting the prosecutor’s explanations and the trial court’s rulings did not preserve the jurors’ actions and demeanors. Nevertheless, “[t]here is no requirement that the State’s racially neutral explanation for its use of peremptory strikes be supported by a transcript of voir dire.” (Citations and punctuation omitted.) Smith v. State, 264 Ga. 449, 453 (4) (448 SE2d 179) (1994); see also Burgess v. State, 194 Ga. App. 179, 180 (390 SE2d 92) (1990). The trial court had the opportunity to observe the jurors’ actions during the voir dire proceedings. In the absence of evidence reflecting that the trial court’s findings were clearly erroneous, we must affirm the trial court’s determination that the prosecutor’s explanations were race-neutral. See Toomer, supra, 292 Ga. at 57-58 (2) (d) (affirming the trial court’s ruling that appellant failed to carry his burden to prove discriminatory intent in the prosecutor’s strikes based upon the prospective jurors’ demeanor since the trial court observed the challenged jurors’ demeanor during voir dire); Smith, supra, 264 Ga. at 451 (1) (“[U]nder Batson, a trial court’s finding must be affirmed unless it is clearly erroneous.”) (citation and punctuation omitted).

(c) Lastly, the prosecutor stated that she struck juror 85 because his hair was in a ponytail. The trial court was authorized to find that the prosecutor’s explanation was race-neutral. “[T]he proponent of the strike need not offer an explanation that is concrete, tangible, or specific. The explanation need not even be case-related. The explanation for the strike only needs to be facially race-neutral.” (Citation and punctuation omitted.) Toomer, supra, 292 Ga. at 54 (2) (b). Since the growing of long, unkempt hair is not a characteristic that is peculiar to any race, the trial court was authorized to find that the prosecutor had offered a race-neutral explanation for its strike. See Purkett v. Elem, 514 U. S. 765, 769 (115 SC 1769, 131 LE2d 834) (1995) (ruling that a prosecutor’s explanation that he struck a juror because he had long, curly, and unkempt hair was sufficient to survive the second prong of the Batson analysis).

After the prosecutor provided race-neutral explanations for its strikes, Littlejohn failed to prove that the prosecutor’s strikes were motivated by discriminatory intent. Consequently, Littlejohn’s Bat-son challenge fails to present a basis for reversal.

2. Littlejohn further argues that the trial court erred in intimating an opinion as to the credibility of a witness and his guilt, in violation of OCGA § 17-8-57. In this regard, Littlejohn challenges the trial court’s interjection of questions to the investigator as to whether the investigator had checked the reliability of the informant’s information, and whether the investigator trusted the informant’s information. Littlejohn also challenges the trial court’s questions to the informant as to which items he had purchased from Littlejohn and his inability to recall every stolen item that he had purchased. Although Littlejohn’s counsel did not object to the trial court’s questions during the trial, we must review this contention of error to determine whether there was a violation of OCGA § 17-8-57 that constituted plain error. Ledford v. State, 289 Ga. 70, 85 (14) (709 SE2d 239) (2011) (ruling that “[e]ven where a defendant has failed to object or move for a mistrial in response to an alleged comment on the evidence by the trial court in violation of OCGA § 17-8-57, this Court nevertheless will examine the claim for plain error”) (citations and punctuation omitted).

OCGA § 17-8-57 provides:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be- error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

Nevertheless, “[i]t is well settled that a trial court may propound a clarifying question in order to develop the truth of a case” without violating this statute. (Citation and punctuation omitted.) Putman v. State, 270 Ga. App. 45,47 (4) (606 SE2d 50) (2004). The extent of such questioning is a matter of the trial court’s discretion, as long as the questioning does not intimate an opinion as to what has or has not been proved or as to the guilt of the accused. See Mullins v. State, 269 Ga. 157, 158-159 (3) (496 SE2d 252) (1998). Upon reviewing the trial court’s questioning in this case, we conclude that it did not cross the line, but rather, was interposed for the purposes of developing the truth in the case and of clarifying the witnesses’ testimony. Accordingly, no violation of OCGA § 17-8-57 occurred. See id.; see also Sims v. State, 306 Ga. App. 68, 71-72 (2) (701 SE2d 534) (2010).

3. Littlejohn also contends that the trial court erred in admitting similar transaction evidence without conducting a USCR 31.3 hearing.

The record shows that the State filed a notice of intent to introduce similar transaction evidence. During a pretrial hearing, Littlejohn’s counsel announced that there was no need for a similar transaction hearing because he was willing to stipulate that Little-john’s prior burglary was admissible as similar transaction evidence. The State nevertheless insisted upon an abbreviated hearing so that it could state its purpose for introducing the similar transaction evidence on the record. During the abbreviated hearing, the State informed the trial court that the similar transaction evidence was based upon Littlejohn’s 1999 burglary conviction and stated that the purpose of the evidence was to show Littlejohn’s modus operandi, plan, and scheme since the burglaries were accomplished in very similar manners. The State’s notice attached the 1999 indictment, which set forth the factual basis for the prior burglary offense, and the sentencing form entering the judgment of conviction. Littlejohn’s counsel stipulated that there was no objection to the similar transaction evidence, and that the requirements of USCR 31.3 had been met. The stipulation was entered on the record while Littlejohn was present in court, and Littlejohn did not repudiate trial counsel’s authority to make the stipulation at that time.

Contrary to Littlejohn’s claim, the foregoing shows that a USCR 31.3 (B) pretrial hearing was held, although the hearing was abbreviated in light of the stipulations made by Littlejohn’s counsel. Likewise, there is no merit to Littlejohn’s claim that the stipulations were invalid since the record did not reflect his personal, express authorization of the stipulations. See Martin v. State, 251 Ga. App. 149-150 (1) (553 SE2d 827) (2001) (rejecting a defendant’s claim that his defense attorney’s stipulation failed because the record did not contain his personal waiver as to the stipulated facts). The record shows that Littlejohn did not repudiate the oral stipulations made in open court in his presence. Littlejohn therefore acquiesced in the stipulations, and the stipulations were binding upon him. Id. In light of the stipulations, any objection that Littlejohn had to the admissibility of the challenged evidence was waived. See Damerow v. State, 310 Ga. App. 530, 534 (3) (714 SE2d 82) (2011). To the extent that Littlejohn argues that his trial counsel was ineffective in stipulating to the similar transaction evidence, his claim will be addressed in Division 5 (a) below.

4. Littlejohn asserts that the trial court erred in restricting the scope of his cross-examination of witnesses regarding the informant’s prior criminal history. Again, no error has been shown.

Although each party has a right to a thorough and sifting cross-examination of the other party’s witnesses, such right is not unfettered, and a trial court may restrict the scope of cross-examination to the issues, and its exercise of discretion will not be interfered with on appellate review unless manifestly abused.

(Citation omitted.) Crosby v. State, 287 Ga. App. 109, 114 (3) (650 SE2d 775) (2007).

The record reflects that in response to the prosecutor’s direct examination questions, the investigator testified at length regarding the informant’s prior criminal history, including his numerous arrests and convictions. When Littlejohn’s trial counsel began to cross-examine the investigator as to the same issues that had already been explored in his earlier testimony, the trial court interrupted his questioning and conducted a bench conference. During the bench conference, the trial court directed counsel not to elicit cumulative testimony. The trial court nevertheless ruled that trial counsel was allowed to question the investigator as to the informant’s reliability pertaining to the instant case.

Contrary to Littlejohn’s contention, the trial court did not abuse its discretion in controlling the scope of cross-examination. The trial court was authorized to exclude cumulative questioning on matters that had already been covered. See Osborne v. State, 291 Ga. App. 711, 714 (4) (662 SE2d 792) (2008); Hopson v. State, 281 Ga. App. 520, 522 (1) (b) (636 SE2d 702) (2006).

5. Finally, Littlejohn contends that his trial counsel provided ineffective assistance in several respects.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. See Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Jones v. State, 318 Ga. App. 342, 345-346 (3) (733 SE2d 400) (2012).

(a) Littlejohn argues that his trial counsel was ineffective (i) in stipulating to the similar transaction evidence of his prior burglary conviction, (ii) in placing his character in issue, and (iii) in failing to join in the prosecutor’s request for curative instructions when the informant testified that he and Littlejohn had previously been incarcerated together. Littlejohn’s arguments are unavailing.

(i) Littlejohn has failed to show that trial counsel was ineffective for stipulating to the similar transaction evidence.

“Entering into a stipulation is a valid trial strategy, and reasonable trial strategy does not constitute deficient performance.” (Citations and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 35 (4) (e) (644 SE2d 837) (2007). This Court has previously held that a trial counsel’s stipulation to a defendant’s prior conviction may constitute reasonable trial strategy, which we will not second guess on appeal. See Jones, supra, 318 Ga. App. at 349-350 (3) (b). At the motion for new trial hearing, trial counsel testified that he stipulated to the similar transaction evidence since it clearly met the prerequisites for admissibility in the case. Trial counsel further explained that his strategy was to address the similar transaction evidence at trial by pointing out the differences in the prior burglary. The record confirms that'the similar transaction evidence establishing Littlejohn’s prior 1999 conviction for burglarizing another residence in Monroe County was sufficiently similar and was admissible for the proper purposes of showing Littlejohn’s modus operandi, plan, and scheme. See King v. State, 246 Ga. App. 100, 101-102 (2) (539 SE2d 614) (2000); Henderson v. State, 190 Ga. App. 243 (378 SE2d 530) (1989). “There is no deficient performance when an attorney fails to object to admissible evidence.” (Citation omitted.) Poole v. State, 291 Ga. 848, 857 (8) (734 SE2d 1) (2012). As such, no error has been shown from trial counsel’s strategies of stipulating to the admissibility of the similar transaction evidence and electing to challenge the substance of the evidence during the trial.

(ii) Littlejohn has likewise failed to show that trial counsel was ineffective in interjecting character evidence during the cross-examination of a witness. In this regard, Littlejohn claims that his trial counsel erred by asking the investigator whether he was aware of Littlejohn’s prior burglary conviction in Monroe County. At the motion for new trial hearing, trial counsel explained that he made a strategic decision to pursue this line of questioning since he knew that the prior burglary conviction would be admitted as similar transaction evidence, and the evidence was useful to challenge the investigator’s failure to compare the partial fingerprints found at the scene of the burglary to Littlejohn’s fingerprints that were of record due to his prior conviction.

“Generally, strategic decisions regarding which defense theories to pursue and the manner of conducting cross-examination are within the exclusive province of the attorney after consultation with the client and do not amount to ineffective assistance.” (Citation omitted.) Boatright v. State, 308 Ga. App. 266, 269 (1) (b) (707 SE2d 158) (2011). The trial court was authorized to find that trial counsel’s cross-examination of the investigator was part of a valid trial strategy to point out the alleged deficiency in the investigation. See id. at 269-270 (1) (b). Accordingly, Littlejohn’s ineffective assistance claim fails. Id.

(iii) The record further shows that in response to the prosecutor’s examination, the informant testified that he was familiar with Littlejohn because they had been incarcerated together. The prosecutor promptly interrupted and asked the trial court to give the jury a curative instruction to disregard the informant’s statement. The trial court denied the request, finding that the testimony was not problematic in light of the introduction of the similar transaction evidence showing Littlejohn’s prior burglary conviction. Although Littlejohn now argues that his trial counsel erred in failing to join in the prosecutor’s request for a curative instruction, his claim is without merit. To the extent that the brief reference to Littlejohn’s prior incarceration was merely cumulative of the admissible evidence of his prior burglary conviction, Littlejohn has failed to show the requisite prejudice to support his claim. See, e.g., Bridges v. State, 286 Ga. 535, 540-541 (7) (690 SE2d 136) (2010). Moreover, since it affirmatively appears from the record that the trial court in its discretion would have denied the request for a curative instruction, trial counsel’s failure to join in the prosecutor’s request does not constitute ineffective assistance. See Head v. State, 288 Ga. App. 205, 208 (2) (653 SE2d 540) (2007). It is axiomatic that the “[fjailure to pursue a futile motion does not constitute ineffective assistance.” (Punctuation and footnote omitted.) Id.

(b) Littlejohn also contends that trial counsel was ineffective in failing to move for a mistrial when jurors observed him in shackles. At the motion for new trial hearing, Littlejohn testified that the jury had seen him in handcuffs during a break in the trial. Littlejohn stated that he had reported the matter to trial counsel, but no arrangements were made to address the issue. In contrast, trial counsel testified that Littlejohn never brought the matter to his attention.

In light of the conflicting testimony as to this issue, the trial court was faced with a credibility determination. The trial court was authorized to believe trial counsel’s testimony that Littlejohn never reported the observation matter, and its resolution of that issue was not clearly erroneous. See Pattillo v. State, 304 Ga. App. 344, 345 (696 SE2d 370) (2010) (ruling that a trial court is authorized to disbelieve a defendant’s self-serving testimony in favor of counsel’s testimony in deciding a claim of ineffective assistance of counsel); see, e.g., Wilson v. State, 257 Ga. App. 113, 116 (2) (a) (570 SE2d 416) (2002) (ruling that when deciding the issue of ineffective assistance of counsel based upon conflicting testimony, the trial court must make a credibility determination).

Moreover, although a defendant has the right to be free of the atmosphere of partiality created by the use of excessive guards or shackles in the courtroom, the mere fact of seeing an indicted accused in custody — not in the courtroom, as in the instant case, is not grounds for an automatic mistrial. Even if his trial counsel had moved for a mistrial, [Littlejohn] has not demonstrated any likelihood that the motion would have been granted, particularly given the vague circumstances surrounding the alleged sightings. And assuming custodial sightings occurred, he has not shown that the sightings tainted the jury or prejudiced him. Accordingly, he cannot satisfy the prejudice prong of his ineffective assistance claim.

(Citations and punctuation omitted.) Stott v. State, 304 Ga. App. 560, 562 (2) (a) (697 SE2d 257) (2010).

Decided March 8, 2013.

Wendell R. Adams, for appellant.

Richard G. Milam, District Attorney, Lauren A. Love, Assistant District Attorney, for appellee.

(c) Lastly, Littlejohn argues that trial counsel was ineffective in failing to object when the trial court intimated an opinion regarding the informant’s credibility. Littlejohn’s arguments are premised upon the trial court’s questioning of the witnesses at trial, which we have addressed in Division 2 above. As previously discussed, the trial court did not intimate an opinion in its questioning of the witnesses. Rather, the trial court’s questions were permitted in order to clarify the testimony and to develop the truth of the case. See Mullins, supra, 269 Ga. at 158-159 (3). Since no error occurred, trial counsel was not ineffective in failing to interpose a meritless objection. See Cotton v. State, 308 Ga. App. 645,646 (708 SE2d 392) (2011) (“[F]ailure to make a meritless objection cannot be evidence of ineffective assistance of counsel.”) (citation and punctuation omitted).

Judgment affirmed.

Ray and Branch, JJ., concur.

        Batson v. Kentucky, 476 U. S. 79, 97-98 (106 SC 1712, 90 LE2d 69) (1986).

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

       We note that Littlejohn cites to George v. State, 263 Ga. App. 541, 544 (2) (588 SE2d 312) (2003), which reversed the trial court’s denial of the defendant’s Batson challenge based upon a ruling that the reasons articulated for strikes must be both racially neutral and related to the particular case. In Toomer, supra, 292 Ga. at 54 (2) (b), the Supreme Court of Georgia recently explained that the reasons articulated for strikes need not be case-related, and need only be facially race-neutral. The Toomer decision expressly disapproved any Georgia case that rules to the contrary. Accordingly, to the extent that the decision in George was based upon a standard that has been disapproved, it cannot be applied here.

       Before similar transaction evidence may be admitted, a USCR 31.3 (B) hearing must be held and the State must show “that it is seeking to introduce the evidence for a permissible purpose; there is sufficient evidence that the accused committed the independent offense or act; and there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citation omitted.) Robinson v. State, 312 Ga. App. 736,751 (5) (719 SE2d 601) (2011). Although USCR 31.3 provides the right to a hearing, it does not require an evidentiary hearing for the production of testimonial evidence. See Harvey v. State, 284 Ga. 8, 11 (4) (d) (660 SE2d 528) (2008).


author: MCFADDEN, Judge.

text:
    A12A2503.
    DILLARD LAND INVESTMENTS, LLC et al. v. SOUTH FLORIDA INVESTMENTS, LLC et al.
    (739 SE2d 696)
   MCFADDEN, Judge.

Dillard Land Investments, LLC, Duck Point, LLC, and Carl M. Drury III (collectively, “the Appellants”) brought an action against South Florida Investments, LLC, The Brand Banking Company, 1615 Johnson Road, LLC, HTSF Capital, LLC, and four individual defendants (collectively, “the Appellees”) asserting various causes of action related to the foreclosure of Dillard Land’s real property. The trial court granted the Appellees’ motion to dismiss the action on the ground that it was barred by res judicata under OCGA § 9-12-40 because the same claims had been subject to two prior voluntary dismissals, the second of which operated as an adjudication upon the merits under OCGA § 9-11-41 (a) (3). But the record shows that the first voluntary dismissal was of an action brought by Dillard Land. The second voluntary dismissal, however, was of a counterclaim brought by Duck Point and Drury, and although they had sought to join Dillard Land as a plaintiff in the counterclaim, the trial court had not yet made Dillard Land a party when the counterclaim was dismissed. Because the counterclaim-plaintiffs in the second-dismissed case — Duck Point and Drury — were not plaintiffs in the first-dismissed case, the second dismissal did not operate as an adjudication upon the merits under OCGA § 9-11-41 (a) (3). Consequently, OCGA § 9-12-40 does not preclude the instant action, and the trial court erred in dismissing the action on that ground. We therefore reverse.

1. Facts and procedural history.

Duck Point and Dillard Land are limited liability companies managed by Drury. On September 30, 2009, South Florida made a loan to Duck Point, secured by property owned by Duck Point and personally guaranteed by Drury. The purpose of this loan was to pay interest on a loan from HTSF Capital to Dillard Land, which was secured by property owned by Dillard Land and was also personally guaranteed by Drury.

HTSF Capital assigned the Dillard Land loan to 1615 Johnson Road. In 2011,1615 Johnson Road sought to foreclose on the property securing that loan. In April 2011, Dillard Land brought an action against 1615 Johnson Road asserting that the advertisement of the foreclosure sale contained mistakes and seeking a temporary restraining order and damages for breach of fiduciary duty. On May 3, 2011, Dillard Land voluntarily dismissed its action without prejudice.

Meanwhile, South Florida had brought an action against Duck Point and Drury on the loan it had made to Duck Point. In April 2011, Duck Point and Drury filed an answer that contained a counterclaim. The counterclaim purported to add Dillard Land to the action as a third-party counterclaim plaintiff and to add The Brand Banking Company, 1615 Johnson Road, and HTSF Capital as third-party counterclaim defendants. It appears, however, that Duck Point and Drury did not seek leave from the trial court to add any of these third parties to the action when they first filed the counterclaim. Likewise, Dillard Land did not seek leave from the court to intervene as a plaintiff in the counterclaim. Duck Point and Drury later moved the trial court for leave to amend the counterclaim to join Dillard Land as a counterclaim plaintiff. The trial court did not rule on that motion, and on June 13, 2011, Duck Point and Drury filed a voluntary dismissal without prejudice of their claims against The Brand Banking Company, 1615 Johnson Road, and HTSF Capital. Duck Point and Drury subsequently withdrew their motion to join Dillard Land as a party to the counterclaim.

On June 14, 2011, Dillard Land, Duck Point and Drury brought the instant action. Therein, they alleged that the Appellees “conducted a wrongful foreclosure of certain real property owned by Dillard Land and secured by Drury and Duck Point,” that South Florida, HTSF Capital and 1615 Johnson Road “were all holders of the loan and security deed at issue and are all subsidiary entities of or affiliated entities controlled by [The Brand Banking Company],” and that the individual Appellees operated South Florida, HTSF Capital and 1615 Johnson Road out of The Brand Banking Company’s principal office and manipulated those entities to defraud the Appellants. The Appellees moved to dismiss on the ground that the dismissal of the counterclaim constituted a second voluntary dismissal that operated as an adjudication upon the merits under OCGA § 9-11-41 (a) (3), that it involved the same claims as those in the instant action, and consequently the doctrine of res judicata, set forth in OCGA § 9-12-40, barred the action.

The trial court granted the Appellees’ motion to dismiss on the ground that the action was barred under OCGA § 9-12-40. The trial court found, among other things, “that one or all of the [Appellants] filed claims and subsequently dismissed those claims [raised in the action] in two previous actions ... against one or all of the [Appellees] and/or their privies.” We review this ruling de novo. Dove v. Ty Cobb Healthcare Systems, 316 Ga. App. 7, 9 (729 SE2d 58) (2012).

2. The dismissal of the counterclaim did not operate as res judicata because it was not an adjudication on the merits.

OCGA § 9-12-40 represents a codification of the common law doctrine of res judicata. Crowe v. Elder, 290 Ga. 686, 687-688 (723 SE2d 428) (2012). It provides:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

OCGA § 9-12-40. For this provision to apply, however, the prior judgment must be an adjudication upon the merits. See Rafizadeh v. KR Snellville, 280 Ga. App. 613, 617-618 (3) (634 SE2d 406) (2006).

There are circumstances under which a voluntary dismissal by a plaintiff may operate as an adjudication upon the merits. OCGA § 9-11-41 (a) addresses a plaintiff’s right to voluntarily dismiss an action and the effects of such a dismissal. OCGA § 9-11-41 (a) (1) (A) pertinently provides that “an action may be dismissed by the plaintiff, without order or permission of the court. . . [b]y filing a written notice of dismissal at any time before the first witness is sworn[.]” And OCGA § 9-11-41 (a) (3) provides that a dismissal under subsection (a) “is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.” The provisions of this Code section apply to the dismissal of a counterclaim. OCGA § 9-11-41 (c); T. V. Tempo v. T.V. Venture, 182 Ga. App. 198, 199 (1) (355 SE2d 76) (1987).

For a second notice of dismissal to operate as an adjudication upon the merits, however, it must have been filed by the same plaintiff who filed the first notice of dismissal. “The plain meaning of [OCGA § 9-11-41] is that a plaintiffs second voluntary dismissal of a case operates as an adjudication on the merits against the plaintiff.” (Citations omitted; emphasis supplied.) Troup v. Chambers, 280 Ga. App. 392 (634 SE2d 191) (2006). Compare Walker v. Mecca, 320 Ga. App. 142 (739 SE2d 450) (2013) (plaintiffs second voluntary dismissal can act as adjudication on merits under OCGA § 9-11-41 although actions were brought against different defendants). And, unlike OCGA § 9-12-40, which expressly states that a prior action can have a conclusive effect upon the parties or their privies, the General Assembly made no provision in OCGA § 9-11-41 to consider the prior voluntary dismissal of a plaintiff’s privy in determining the effect of a subsequent voluntary dismissal by that plaintiff. See generally OCGA § 1-3-1 (a) (in all interpretations of statutes, courts shall look diligently for the intention of the General Assembly); Innovative Clinical & Consulting Svcs. v. First Nat. Bank of Ames, 279 Ga. 672, 675 (620 SE2d 352) (2005) (courts cannot reject plain language of statute unless it will lead to unreasonable consequences or absurd results not contemplated by legislature). Compare Belco Elec. v. Bush, 204 Ga. App. 811, 814 (420 SE2d 602) (1992) (considering voluntary dismissal filed by divorced parent in parent’s action for child’s wrongful death in determining application of OCGA § 9-11-41 (a) (3) to subsequent voluntary dismissal of action brought by other parent, based on specific statutory rule that “[w]here one parent undertakes to prosecute the [wrongful death] cause, the other is nevertheless bound by such action”) (citation and punctuation omitted).

Consequently, the trial court’s finding in this case that prior actions were filed and then dismissed by “one or all” of the Appellants is not determinative. Rather, we must consider whether any of the Appellants was a plaintiff who voluntarily dismissed both actions. The record makes clear that the answer to this question is no.

Dillard Land was the only plaintiff in the action that resulted in the first voluntary dismissal, on May 3, 2011. But Dillard Land was not a party to the counterclaim that Duck Point and Drury voluntarily dismissed on June 13, 2011. Although Duck Point and Drury sought to join Dillard Land as a plaintiff to that counterclaim, the trial court had not yet ruled on their joinder motion or otherwise allowed Dillard Land to intervene as a plaintiff in the counterclaim at the time of its dismissal, and the only two parties who filed the notice of dismissal of the counterclaim were Duck Point and Drury. See generally OCGA § 9-11-21 (“Parties may be dropped or added by order of the court on motion of any party or of its own initiative____”); Mail & Media v. Rotenberry, 213 Ga. App. 826, 831 (446 SE2d 517) (1994) (addressing trial court’s refusal to allow third party to intervene as counterclaim plaintiff).

Decided March 8, 2013.

Hall, Booth, Smith & Slover, Dargan S. Cole, for appellants.

Mahaffey, Pickens & Tucker, Matthew P. Benson, for appellees.

The Appellees cite Zohoury v. Zohouri, 218 Ga. App. 748, 749 (2) (463 SE2d 141) (1995), for the proposition that even if a third-party action is improperly filed its dismissal may be considered in determining the effect of a subsequent dismissal under OCGA §9-11-41 (a) (3). But Zohoury merely held that the improperly-filed claim was not void or a nullity but was subject to a defense (and thus was capable ofbeing dismissed voluntarily within the meaning of OCGA § 9-11-41 (a)). Zohoury, supra. Zohoury did not address whether a voluntary dismissal could be attributed to a putative third-party plaintiff whom the trial court had not yet given leave to join the claim.

Given our determination that none of the Appellants voluntarily dismissed both actions, we need not consider the parties’ arguments regarding similarities between the claims in those actions and the claims brought by the Appellants in the instant action. The voluntary dismissal of the prior counterclaim by Duck Point and Drury was not a second notice of dismissal and did not operate as an adjudication upon the merits under OCGA § 9-11-41 (a) (3), and consequently it had no preclusive effects upon the instant action under OCGA § 9-12-40. The trial court erred in dismissing the action under OCGA § 9-12-40. See Shy v. Faniel, 292 Ga. App. 253, 255 (2) (663 SE2d 841) (2008) (where voluntary dismissal did not operate as adjudication upon merits under version of OCGA § 9-11-41 in effect at time, trial court erred in dismissing subsequent action on res judicata grounds).

Judgment reversed.

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