text:
    A10A2190.
    A11A0195.
    CHANEY v. HARRISON & LYNAM, LLC. CHANEY v. HARRISON & LYNAM, LLC et al.
    (708 SE2d 672)
   Adams, Judge.

In Case No. A10A2190, Justin Chaney asserts that the trial court erred in denying, on reconsideration, his motion for summary judgment on claims of defamation, tortious interference with business relations, conspiracy and punitive damages, filed against him by Harrison & Lynam, LLC (“H & L”). In Case No. A11A0195, Vanessa Chaney asserts that the trial court erred in denying, on reconsideration, her motion for summary judgment on similar counterclaims asserted by H & L in response to a suit she filed against Michael T. Lynam, Charles C. Harrison and H & L for breach of contract, breach of warranty, nuisance, negligent construction, negligence per se, and fraud in connection with the construction of the Chaneys’ home. For the reasons set forth below, we reverse the denial of the Chaneys’ motions for summary judgment and affirm the denial of Justin Chaney’s motion to join Harrison and Lynam as defendants in counterclaim.

On or about April 29, 2003, the Chaneys contracted to buy a house built by H & L in the City of Atlanta. In October 2003, prior to the closing on the house, H & L sent the Chaneys a property disclosure statement acknowledging that the property had “present drainage or flooding problems.” H & L asserts that it took some steps prior to the closing to direct rainwater away from the Chaneys’ property, and the Chaneys contend that they relied upon the company’s assurances that the problems had been fixed in deciding to close the transaction. At or around the time of the closing in January 2004, H & L personnel noticed that stormwater from an adjacent road was collecting on the Chaneys’ property. H & L undertook to correct the problem by building a catch basin at the company’s expense, although the company asserts that it was not contractually obligated to make the repairs.

These measures apparently did not solve the drainage problems, and later in 2004, H & L gave the Chaneys and their neighbors a written proposal to address the problem. H & L subsequently replaced a grating at the Chaneys’ catch basin and made adjustments to the basin. But the Chaneys remained dissatisfied with the company’s efforts. And at some point, they began to question whether the City of Atlanta also bore some responsibility for their drainage problems.

In September 2005, when the drainage issue remained unresolved, the Chaneys posted a sign in their yard reading, “ASK OUR OPINION WHY NOT TO BUY A HARRISON & LYNAM HOME.” A number of the Chaneys’ neighbors erected similar signs. Keith Sharp, a real estate agent who had sold a number of H & L homes in the neighborhood, assisted H & L in trying to resolve the situation. He scheduled a meeting attended by the Chaneys, their neighbors, Harrison, Lynam and an assistant to the City council. A short time later, the Chaneys and their neighbors removed their signs in exchange for what they considered to be a commitment from H & L to address the items remaining on their punch list and to take additional steps to address the drainage issues. Although H & L asserts that it took further action to remedy the drainage problems, the Chaneys and their neighbors remained dissatisfied.

Accordingly, on July 23, 2006, a day on which H & L had scheduled an open house in the neighborhood, the Chaneys and their neighbors re-erected their signs. Two days later, on July 25, Justin Chaney sent an e-mail to six City officials suggesting that the City had responsibility for the drainage problems and stating that he was preparing for litigation against H & L for “the obvious negligent construction concerning drainage on my property” and did not want to have to sue the City as well (the “July 25 E-Mail”). This e-mail also noted that “H & L ha[s] apparently damaged a preexisting storm drain that lies under the road,” an allegation H & L denies. On July 28, 2006, the Chaneys were cited for violating a City sign ordinance, and the next day, Justin Chaney sent an e-mail to his neighbors, stating “my first inclination is not to take your sign down until the work was complete and — but I am open to any ideas. I think [H & L is] feeling the pain with the two houses they’ve been sitting on across from us” (the “July 29 E-Mail”).

Then, on July 31, 2006, Justin Chaney sent a letter to the City of Atlanta to the attention of a City zoning inspector, with copies to four City officials, including the mayor and a councilwoman, in response to the sign ordinance citation. The letter stated that his neighbors and he had formed a political action committee (“PAC”) with the stated intention to “educate prospective home buyers of alleged negligent construction and breach of contract issues” involving H & L (the “July 31 Letter”). The letter argued that as a result, their signs should be considered more in the nature of campaign signs and thus subject to less stringent requirements. And on August 10, 2006, Justin Chaney sent a letter to real estate agent Sharp’s broker, seeking to ensure that Sharp disclose their claims of “negligent construction” and “pervasive shoddy workmanship” by H & L to prospective buyers (the “August 10 Letter”).

H & L filed suit against Justin Chaney that same day. Chaney counterclaimed asserting claims arising out of the construction of the house. Justin Chaney subsequently moved to add Harrison and Lynam, individually, as defendants to his counterclaim and also moved for summary judgment on H & L’s claims. Vanessa Chaney filed her complaint against H & L, Lynam and Harrison on January 3, 2008, and the defendants filed their counterclaim in response. Vanessa Chaney subsequently moved for summary judgment on the counterclaim.

The trial court initially granted both of the Chaneys’ motions for summary judgment, and denied Justin Chaney’s motion for joinder of parties. But in granting summary judgment to the Chaneys, the trial court limited its analysis to the Chaneys’ yard sign. H & L moved for reconsideration, noting that their claims also addressed allegedly defamatory e-mails and correspondence, in addition to the sign. The motion additionally asked for reconsideration of the finding that the sign was not defamatory. Justin Chaney also moved for reconsideration of the denial of his motion to add parties.

On reconsideration, the trial court again denied Justin Chaney’s motion for joinder but reversed its earlier position and denied both Chaneys’ motions for summary judgment without explanation. The trial court certified these orders for immediate review, and this Court granted the Chaneys’ applications for interlocutory appeal. The cases were later consolidated for appeal.

1. Defamation — The Chaneys assert that the trial court erred in denying their motions for summary judgment on H & L’s defamation claim. H & L asserts claims based upon the Chaneys’ yard sign and by extension their communications with prospective buyers in connection with the sign. H & L also asserts a claim for defamation based upon letters and e-mails sent by Justin Chaney.

To establish a cause of action for defamation, a plaintiff must submit evidence of (1) a false and defamatory statement about himself; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special damages or defamatory words “injurious on their face.” [Cit.]

Lewis v. Meredith Corp., 293 Ga. App. 747, 748 (1) (667 SE2d 716) (2008).

(a) Yard Sign — The Chaneys’ yard sign invited the public at large to ask the Chaneys’ “opinion why not to buy a Harrison & Lynam home.” The Chaneys contend the sign is not defamatory because it is simply a statement of their opinion. H & L counters that the sign is actionable because it implies “defamatory facts.” See Bellemeade, LLC v. Stoker, 280 Ga. 635, 638 (631 SE2d 693) (2006), citing Milkovich v. Lorain Journal Co., 497 U. S. 1, 18-21 (110 SC 2695, 111 LE2d 1) (1990).

As a general rule, a mere statement of opinion is not considered defamatory, and

a defamation action will lie only for a statement of fact. This is because a statement that reflects an opinion or subjective assessment, as to which reasonable minds could differ, cannot be proved false. As a result, a plaintiff who claims that a published opinion defamed him will generally be unable to carry his burden of proving the essential element of falsity.

(Footnote omitted.) Gettner v. Fitzgerald, 297 Ga. App. 258, 261 (1) (a) (677 SE2d 149) (2009). See also Kendrick v. Jaeger, 210 Ga. App. 376, 377 (436 SE2d 92) (1993) (“[T]he expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not libelous. An assertion that cannot be proved false cannot be held libelous.”) (citation and punctuation omitted); Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 747 (3) (337 SE2d 770) (1985) (“wholly subjective” statement “not capable of proof or disproof” does not constitute defamation). Nevertheless,

[t]here is ... no wholesale defamation exception for anything that might be labeled “opinion.” An opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or imply defamatory facts about the plaintiff that are capable of being proved false.

(Punctuation and footnotes omitted.) Gast v. Brittain, 277 Ga. 340, 341 (589 SE2d 63) (2003).

Applying these principles, we conclude that the Chaneys’ sign does not constitute defamation. The sign itself does not even express an opinion; rather, it is an invitation to ask the Chaneys for their opinion. At most, the sign implies that the Chaneys have a negative opinion of H & L homes, but it is too far of a stretch to interpret the sign as implying “defamatory facts” about H & L as nothing in the sign connotes anything that is “sufficiently factual to be susceptible of being proved true or false.” Bellemeade, LLC v. Stoker, 280 Ga. at 638.

The case of Janet Ricker Builder, Inc. v. Gardner, 244 Ga. App. 753 (536 SE2d 777) (2000) is instructive. Gardner was unhappy with the construction of a home she purchased from Ricker. She asked Ricker to make immediate repairs, and if repairs were not made, Gardner stated that she could “mess up” the sale of other homes in the subdivision. Id. at 754. Gardner subsequently placed signs on her property expressing her dissatisfaction with the home’s construction, including a sign in her front window reading, “This lemon is for sale. Built by Janet Ricker Builder, Inc.” Id. Ricker sued Gardner for defamation and tortious interference with business relations. This Court concluded that Gardner’s statement that the house was a “lemon” was “a constitutionally protected expression of opinion” in affirming the trial court’s grant of summary judgment as to the claim of tortious interference. Id. at 756 (4). See also Elder v. Cardoso, 205 Ga. App. 144, 144-145 (1) (421 SE2d 753) (1992) (no viable claim for slander where appellees expressed opinion as to appellant’s professional abilities and “merely attempted to ‘dissuade’ or ‘discourage’ their patients” from selecting appellant). The Chaneys’ sign was even less explicit than Gardner’s and thus it, too, must be considered protected speech.

(b) Conversations with potential buyers — Although the Chaneys’ sign invited passers-by to ask their opinion, H & L presented no evidence from any individual who took them up on their offer or from any individual who otherwise spoke with the Chaneys about H & L. Instead, H & L relies upon the affidavit of real estate agent Sharp, who averred that prospective customers had remarked on the signs and indicated that their decision not to buy a home in the subdivision was influenced by the signs and “comments made by those who erected the signs.” He also cites one unidentified customer who supposedly terminated a purchase contract, in part because of the signs and comments.

But H & L failed to demonstrate that these unidentified customers ever spoke to the Chaneys and further failed to identify any defamatory statements the Chaneys supposedly said to them. In fact, Sharp stated in his deposition that he did not recall any person telling him that either Vanessa or Justin Chaney had said anything about H & L. “To establish a cause of action, the defamatory statement must be published[, and a] plaintiff cannot prove publication without introducing evidence of the specific statement used in an allegedly defamatory communication.” (Citations omitted.) Lewis v. Meredith Corp., 293 Ga. App. at 749 (1).

Rather, the only admissible evidence in that regard comes from the Chaneys themselves. Vanessa Chaney stated that she spoke with approximately five people, but only told them that they were having drainage issues. When she heard her husband talking to people, she only heard him say that they were having drainage issues. Justin Chaney averred that he had never approached any person about H & L homes other than his neighbors, who were originally named as co-defendants in this case. He advised his neighbors that he would confine any comments in response to the signs to the facts, without exaggeration, and advised them to do the same. He indicated he had individuals who approached his home in response to the sign, but he was careful to limit his conversation “to the fact that the property has a drainage problem, the house had unfinished punch list items and [H & L] built the house.” It is unclear from the record when these conversations occurred.

H & L apparently does not dispute that the Chaneys continue to have drainage issues on their property. Further, Justin Chaney testified that at the time they agreed to remove their sign in September 2005, they had a long punch list of items that remained to be completed. At his deposition, Chaney could only recall that H & L had never furnished an engineering letter and had never fixed a heat lamp in their bathroom. Vanessa Chaney also testified that they had unfinished punch list items, citing again the nonfunctioning bathroom lamp. H & L has pointed us to no evidence contradicting these statements. Accordingly, the Chaneys’ conversations arising from the sign cannot be considered defamatory as such conversations apparently addressed only factually true information. See OCGA § 51-5-6 (“The truth of the charge made may always be proved in justification of an alleged libel or slander.”).

(c) Justin Chaney’s Letters and E-Mail — H & L also alleges defamation in the following e-mail and letters from Justin Chaney: (i) the July 25 E-Mail to six City officials asserting that he was preparing for litigation against H & L for “obvious negligent construction concerning drainage on my property” and asserting that H & L “apparently” had damaged a storm drain; (ii) the July 31 Letter stating his PAC’s intention to educate prospective homeowners of “alleged negligent construction and breach of contract issues” ; and (iii) the August 10 Letter to the real estate broker complaining about the failure to disclose “negligent construction” and “pervasive shoddy workmanship.”

Justin Chaney claims privilege for these communications under OCGA § 51-5-7 (2), (3), and (4). Under subsection (2), “[statements made in good faith in the performance of a legal or moral private duty” are deemed privileged. Subsection (4) protects “[statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern. . . .” And under subsection (3) privilege cloaks “[statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned.”

Justin Chaney bears the burden of proving his claim of privilege, and

[i]n reviewing whether summary judgment was appropriate on this ground, we consider whether [Justin Chaney has] established as a matter of law that [he] made privileged statements. To do so, [he] must show good faith, an interest to be upheld, a statement properly limited in scope, a proper occasion and publication to proper persons.

(Punctuation and footnotes omitted.) Meadow Springs v. IH Riverdale, 307 Ga. App. 72, 75 (1) (b) (ii) (704 SE2d 239) (2010). See also Speedway Grading Corp. v. Gardner, 206 Ga. App. 439, 442 (2) (425 SE2d 676) (1992) (although questions of privilege and malice generally are for the jury, “complete privilege may be established as a matter of law” if defendant establishes “good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons”) (citation and punctuation omitted).

Nevertheless,

[pjroof that the defendant acted with actual malice in making the statement. . . defeats the defense of privilege. If the privilege is used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action. OCGA § 51-5-9. Malice to avoid qualified privilege must be actual and with evil intent.

(Citations and punctuation omitted.) Fine v. Communication Trends, 305 Ga. App. 298, 303-304 (1) (b) (699 SE2d 623) (2010). Here, H & L claims that Justin Chaney acted with actual malice and would bear the burden of proving such malice at trial. To carry his burden on summary judgment, however, Chaney need only demonstrate “by reference to the affidavits, depositions and other documents in the record” that there is an absence of evidence to support H & L’s claim of malice. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Justin Chaney testified in his deposition that his motivation in posting the sign and in his later communications with the City and others was to get his drainage problems resolved. When he first erected the sign, he did not believe that it would have any impact upon H & L because he did not believe that the sign would be up long. Chaney thought that H & L would remedy the problem. But he explained that “the longer it went on, . . . the less progress we were making and it became more and more apparent that . . . maybe [H & L] ... never intended to fix it. And so — when it became apparent that [H & L was not] going to do anything, ... I did contact the city.”

Chaney explained that he came to believe that the City of Atlanta might hear some responsibility for his drainage issues. He stated that at one point, for example, Lynam told him that the City was directing H & L regarding the steps to take to fix the drainage issues. Chaney stated in his affidavit that his communications with the City first focused upon “convincing the City to take action to correct the problem. Later, these discussions dealt with whether the measures taken by [H & L] to attempt to correct the problem had been permitted by the City.” Still later, he contacted the City after he was cited for violating the sign ordinance and learned that Lynam had filed a complaint in that regard. During that discussion, in response to a direct question, Chaney explained that his dispute with Lynam involved “unresolved drainage issues and punch list issues.”

(i) It is apparent from the face of Justin Chaney’s July 25 E-Mail that it was written with the intent of getting the City to address the drainage issues and that it was a follow-up to prior discussions regarding the situation. He asks the City to investigate the “negligent construction that has occurred at his residence,” and it is unclear whether that refers to H & L or the City’s own actions regarding drainage in the area. Although Chaney states in the letter that he may bring suit against H & L for “obvious negligence,” he attempts to use that information as an incentive to prod the City into action to avoid being added to the lawsuit. Thus Chaney was communicating with the proper people about a topic as to which he maintained an interest. Moreover, proper drainage of rain water from City roadways is a matter of public interest, and Chaney had a right to seek redress for any grievance in this regard. We find, therefore, that his statements about H & L were properly limited in scope and nothing in the record indicates that they were not made as part of a good faith effort to resolve the drainage issues. See Speedway Grading Corp. v. Gardner, 206 Ga. App. at 442 (2) (where appellee resided near landfill on public waterway that could materially affect others, privilege applied to appellee’s comment in letter to regulatory authority implying that owner of landfill bribed judge).

(ii) Similarly, his July 31 Letter to City officials concerned the citation he received in connection with posting the sign. Chaney disputed that he had violated any ordinance and indicated that he had formed a PAC along with his neighbors to hold homebuilders to the minimum standards set forth in the applicable building codes. Chaney states that the mission of the PAC is to educate prospective home buyers of “alleged negligent construction and breach of contract issues” as the result of actions by H & L. Chaney testified in his deposition that he did, in fact, register a PAC with the Secretary of State’s office, although he did not recall whether he took any further action with regard to the PAC.

Pretermitting whether a statement indicating that Justin Chaney is merely alleging negligence and breach of contract on the part of H & L can be considered defamatory, we find that nothing in the evidence indicates that the letter was not sent as a good faith response to the citation. The statement about H & L was properly limited in scope and submitted to appropriate recipients. H & L’s contention that neither the mayor nor the councilwoman were proper recipients is without merit, as both were City officials and the topic of the letter was Chaney’s alleged violation of a City ordinance. Accordingly, we find that Chaney has established privilege as a matter of law with regard to this letter.

(iii) We also conclude that the August 10 Letter to Sharp’s broker is privileged. The letter was written to put the broker on notice of the allegations made by the Chaneys and their neighbors of drainage issues caused by the “alleged negligent construction” and “shoddy workmanship” of H & L, and the prospect of impending litigation filed against H & L in this regard. The letter reminds the broker that Sharp has a legal duty to disclose these issues to any prospective buyers of homes in the neighborhood. The letter asserts that Sharp has been aware of these issues since at least September 2005 and questions whether he had been making the required disclosures. Enforcement of Georgia law is a matter of public interest, and it was a proper exercise of Chaney’s right of free speech to attempt to ensure that Sharp was complying with the law. The statements regarding H & L were properly limited in their scope as they were intended to put the Chaneys’ complaints on the record for the broker, who was the appropriate recipient.

H & L contends, however, that evidence exists that Chaney was not acting in good faith when he made these communications, but rather acted maliciously in an attempt to negatively impact H & L. In support of this argument, H & L points to the events surrounding the re-posting of the signs in July 2006. Chaney testified that when he re-erected his sign in 2006, his intent once again was to get his drainage issues resolved, not to affect H & L’s business. He acknowledged that once everyone put up their signs, it was reasonable to assume that H & L’s sales probably would be affected, but as he indicated in the August 10 Letter, the signs also had a negative impact on his own property value. When he stated in his July 29 E-Mail to his neighbors that H & L was “feeling the pain” from the signs, he stated that he meant that the company had “incentive to remedy” the drainage issues “whether they thought it was the right thing to do or not.” H & L has not pointed us to any evidence to contradict this explanation. Moreover, we have found that the signs were a proper exercise of the Chaneys’ right to free speech.

Thus even though Chaney may have hoped that his sign would pressure H & L to respond by fixing the drainage on his property, the record indicates that such pressure was part of a “bona fide” effort to promote the object for which the applicable privileges were granted. Chaney had the right to seek resolution of his drainage issues, and his attempts to achieve that end do not evidence the “evil intent” required for actual malice. No evidence of actual malice exists in the record, and “[cjonclusory allegations by the plaintiff of conspiracy, malice, and defamation are insufficient in the absence of substantiating fact or circumstances ... to raise a material issue for trial.” (Citation and punctuation omitted.) Sherwood v. Boshears, 157 Ga. App. 542, 544 (278 SE2d 124) (1981).

Thus, the trial court erred in failing to find an absence of malice as a matter of law and in denying the Chaneys’ motion for summary judgment as to the defamation claims. See Fine v. Communication Trends, 305 Ga. App. at 305 (1) (b) (“Whether a showing of actual malice has been made is an issue to be determined by the trial judge in the first instance, and thus is particularly appropriate for summary resolution.”) (citations and punctuation omitted).

2. Interference with business relations — The Chaneys also assert that the trial court erred in denying their motions for summary judgment as to H & L’s claims of tortious interference with business relations.

Tortious interference claims, whether asserting interference with contractual relations, business relations, or potential business relations, share certain common essential elements: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.

(Citation omitted.) Kirkland v. Tamplin, 285 Ga. App. 241, 243 (1) (645 SE2d 653) (2007). See also Sommers Co. v. Moore, 275 Ga. App. 604, 605 (621 SE2d 789) (2005).

H & L argued in support of this claim that the Chaneys had no legitimate reason to solicit H & L’s prospective customers in order to express their “opinion” of the company’s work, but we held otherwise in Division 1 above. The Chaneys’ posting of the sign was not improper, and H & L failed to present evidence of any other improper communications or any other improper conduct by the Chaneys with regard to prospective customers. Additionally, we found that no evidence exists that the Chaneys acted maliciously in communicating with anyone about H & L. Accordingly, H & L cannot establish at least two of the essential elements of their tortious interference claim, and the Chaneys were entitled to summary judgment. Cf. Stefano Arts v. Sui, 301 Ga. App. 857, 862 (2) (690 SE2d 197) (2010) (persuading someone to break a contract insufficient to show tor-tious interference); Kirkland v. Tamplin, 285 Ga. App. at 244 (1) (b) (same).

3. And because H & L cannot establish these underlying torts, their claims for conspiracy and punitive damages were likewise subject to summary adjudication. See Mustaqeem-Graydon v. Sun-Trust Bank, 258 Ga. App. 200, 207 (6) (573 SE2d 455) (2002) (absent underlying tort no liability exists for civil conspiracy); Boeing Co. v. Blane Intl. Group, 276 Ga. App. 672, 676 (2) (624 SE2d 227) (2005) (derivative punitive damages claim cannot survive the absence of compensatory damages on underlying claim).

Accordingly, we reverse the trial court’s denial of the Chaneys’ motions for summary judgment.

4. Justin Chaney also asserts that the trial court erred in denying his motion to add Harrison and Lynam, individually, as parties to his counterclaim, under OCGA §§ 9-11-13 (h) and 9-11-19 (a) (1). That statute provides that “[w]hen the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim . . . , the court shall order them to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained.” “The foregoing is read in conjunction with OCGA § 9-11-19 (a) (1) which provides that ‘(a) person who is subject to service of process shall be joined as a party in the action if: (1) in his absence complete relief cannot be afforded among those who are already parties.’ ” Gardner v. Gardner, 276 Ga. 189, 190 (1) (576 SE2d 857) (2003).

At issue, therefore, is whether the joinder of Harrison and Lynam is required to afford Justin Chaney complete relief. “This provision ‘complete relief’ embraces the desirability of avoiding repetitive lawsuits on essentially the same facts or subject matter, as well as the desirability of joining those in whose absence there might be a grant of hollow or partial relief to the parties before the court.” (Citations and punctuation omitted.) Gardner v. Gardner, 276 Ga. at 190 (1). Chaney’s counterclaim asserts claims for breach of contract, breach of warranty, nuisance, negligent construction, negligence per se, and fraud in connection with building the house. He sought to join Harrison and Lynam to the counterclaim on the ground that they oversaw the allegedly negligent construction and individually made numerous fraudulent representations. He asserted that jurisdiction and venue were proper in the trial court because Harrison and Lynam were joint tortfeasors with H & L. Chaney does not assert, however, that Harrison and Lynam have any kind of vicarious liability for H & L or that H & L’s finances are commingled with theirs.

To the extent that the addition of Harrison and Lynam to the counterclaim is sought because they are joint tortfeasors with H & L, no joinder is required. “It is well settled that it is not required that all joint tortfeasors be joined together in an action against one, their liability being joint and several.” (Citations and punctuation omitted.) McCabe v. Lundell, 199 Ga. App. 639, 641 (2) (405 SE2d 693) (1991). And joinder certainly would not be required to the extent that Chaney alleges separate, independent torts or breaches on the part of Harrison and Lynam. See Searcy v. Searcy, 280 Ga. 311, 313 (2) (627 SE2d 572) (2006) (joinder not necessary where claims involved distinct from those asserted against party to litigation). Although

[i]t may be “desirable” that [Harrison and Lynam] be added as . . . defendant[s]-in-counterclaim[,] . . . OCGA § 9-11-13 (h) does not authorize the addition of a defendant-in-counterclaim merely because it may be “desirable.” The statute mandates the addition of a defendant-in-counterclaim whose presence “is required for the granting of complete relief. ...”

(Emphasis supplied.) McCabe v. Lundell, 199 Ga. App. at 641 (2). See also Searcy v. Searcy, 280 Ga. at 312-313 (2) (where no evidence of commingled funds, joinder not required). Compare Gardner v. Gardner, 276 Ga. at 190 (1) (approving joinder in divorce action of wholly-owned corporations with which husband may have commingled marital assets so as to facilitate resolution of marital claims); Co-op Mtg. Investments Assoc. v. Pendley, 134 Ga. App. 236, 239 (1) (214 SE2d 572) (1975) (joinder of general partner proper in counterclaim against limited partnership as general partner could become individually liable for all the debts of the partnership). Accordingly, the trial court did not err in denying the motion for joinder.

Decided March 25, 2011.

James C. Gaulden, Jr., for appellant.

Lamar, Archer & Cofrin, Robert C. Lamar, Keith A. Pittman, for appellees.

Judgment affirmed in part and reversed in part in Case No. A10A2190. Judgment reversed in Case No. A11A0195.

Smith, P J., and Mikell, J., concur.

       H & L also named as defendants a number of the Chaneys’ neighbors who had also erected signs, but H & L later settled those claims.

       Ricker apparently did not argue error in the grant of summary judgment on the defamation claim. Janet Ricker Builder v. Gardner, 244 Ga. App. at 754.

       Moreover, to the extent that H & L offers this affidavit for the truth of the prospective customers’ statements as to why they chose not to buy a house in the subdivision, it is hearsay and “wholly without probative value” for purposes of summary judgment. (Citation omitted.) Jones v. O’Day, 303 Ga. App. 159, 163 (692 SE2d 774) (2010). See also ULQ, LLC v. Meder, 293 Ga. App. 176, 183 (5) (666 SE2d 713) (2008) (“[HJearsay cannot be considered on summary judgment.”) (citation and punctuation omitted).

       Although Chaney also states in the letter that H & L “apparently damaged” a pre-existing storm drain, he testified in his deposition that someone who was contracted by the City to look into the situation showed him that a pipe had been damaged and suggested to Chaney that it was done by the builder during excavation on his home. Even though H & L denies damaging the pipe, there is nothing to indicate that Chaney did not make this statement in good faith.

       Although the letter shows copies going to the interested neighbors and the Georgia Real Estate Commission, Justin Chaney stated that he did not believe he ever sent the letter to the commission. And H & L has not presented any evidence to establish “publication” to the commission.

       The trial court denied the motion on the ground that there was no evidence that Harrison and Lynam had commingled the corporate accounts.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A10A2301.
    PENDLEY v. THE STATE.
    (709 SE2d 18)
   PHIPPS, Presiding Judge.

Daniel Pendley was convicted of and sentenced for aggravated child molestation, rape, attempted child molestation, and first degree cruelty to children for acts committed against J. D., the daughter of Pendley’s girlfriend. He appeals, asserting that the evidence was insufficient to support his convictions and that the court erred in admitting similar transaction evidence, giving an improper jury charge, and failing to merge two of the counts for purposes of sentencing. Finding no error, we affirm.

The indictment alleged that the crimes occurred between December 2000 and January 2002 in Gilmer County. At that time, J. D. lived with her mother, her brother, and Pendley. In January 2002, the Department of Family and Children Services (DFCS) obtained custody of J. D. because of her mother’s neglect. In 2003, when she was twelve years old, J. D. made a disclosure to a caseworker about incidents involving Pendley that had occurred when she was between the ages of seven and ten.

J. D. gave a forensic interview in 2003 about the incidents. She stated in that interview that, beginning when she was seven, Pendley would come into her room when her mother was out of the house or asleep, then touch and put his mouth on her genitals. He would tell her to take her clothes off and become angry if she did not do so. On one occasion, Pendley asked J. D. to masturbate him, but she did not comply. On three consecutive nights when J. D. was ten, Pendley came into her room, removed some of their clothing, and put his penis partly inside her vagina. J. D. stated that during at least one of these episodes Pendley’s actions hurt her. On those three nights, J. D. was afraid, she told Pendley to stop and to leave her alone, and she tried to push him away. Pendley told J. D. that her mother would doubt Pendley’s love if she learned what had happened; this thought frightened J. D., who did not want her mother to be unhappy. J. D. also was afraid that her mother might dislike her if her mother learned what had happened. A videotape of J. D.’s forensic interview was shown to the jury. J. D. also testified at trial about the abuse.

A pediatric nurse who examined J. D. found no injuries to her hymen; she testified that this was not inconsistent with J. D.’s description of the incidents and the amount of time that had passed since the incidents occurred.

The state introduced evidence of similar transactions. Pendley’s son testified to having seen Pendley pinch J. D. in the area of her breast. Pendley’s daughter testified that, in 1989, when she was 15 years old, Pendley asked her to lie naked on a couch in their residence, but she did not comply.

Another similar transaction witness recounted an incident that occurred in 1970 or 1971, when she was nine years old and her aunt was married to Pendley. The witness was alone with Pendley when he tried to touch her vagina and tried to push his hand beneath her shorts. He asked to kiss her and, when she refused, got on top of her. The witness pushed and slapped Pendley, making him angry. Pendley made threats against the witness’s mother and grandmother when she threatened to tell them what had occurred.

1. When an appellant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

(a) Pendley asserts that the evidence was insufficient to show venue in Gilmer County. Specifically, he argues that J. D.’s testimony was unclear concerning where the specific acts of abuse alleged in the indictment had occurred. We disagree.

As to the counts for which Pendley was convicted, J. D. testified at trial that the acts alleged in the indictment occurred at a particular residence, and that the residence was located in Gilmer County. Although Pendley’s counsel attempted on cross-examination to cast doubt on J. D.’s memory of where these acts had occurred, any conflict in this evidence merely presented an issue of credibility for the jury’s consideration. J. D.’s testimony that the acts had occurred in Gilmer County authorized the jury to find that venue was proper in that county.

(b) Pendley asserts that the evidence was insufficient to show the element of force required to convict him of forcible rape. He cites the lack of evidence of a physical injury to J. D. But the state need not show that a victim was physically injured to prove rape. “Lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.”

J. D. stated in the forensic interview that it hurt when Pendley pushed his penis partly into her vagina; that she did not want him to do that; that she told him to stop and tried to push him away; and that she was afraid to tell her mother about it because Pendley had threatened that this information would hurt her mother. This evidence was sufficient for a rational trier of fact to find Pendley guilty, beyond a reasonable doubt, of forcible rape.

(c) Pendley asserts (and the state concedes) that the evidence was insufficient to support a conviction for child molestation, which the indictment alleged Pendley committed by having J. D. “place her hand on his penis and masturbate him.” The jury, however, did not find Pendley guilty of child molestation; it found him guilty of the lesser included offense of attempted child molestation. The evidence that Pendley raised the subject of masturbation with J. D. and asked her to perform that act upon him was sufficient to support his conviction for this offense.

2. Pendley contends that the court erred in allowing the state to introduce, as similar transaction evidence, the testimony of his daughter and his former wife’s niece.

[F]or evidence of a similar transaction to be admissible, the [s]tate must demonstrate the following: (1) the evidence is admitted for a proper purpose; (2) sufficient evidence exists to establish the accused committed the independent act; and (3) a sufficient connection or similarity exists between the independent offense and the crime charged so that proof of the former tends to prove the latter.

After the state proffered the testimony of the two witnesses at a pretrial hearing for the purpose of showing Pendley’s “lustful disposition for young children,” the court found the similar transaction evidence admissible. We will uphold a trial court’s decision to admit evidence of a similar transaction unless it was clearly erroneous.

Pendley argues that these prior acts were so remote in time from the charged offenses (11 years in the case of the daughter, and 30 years in the case of the niece) that the prejudicial impact of the evidence substantially outweighed its probative value. He cites Gilstrap v. State in support of his argument. In Gilstrap, the Supreme Court of Georgia stated that “[i]t should be clear . . . that an event 31 years in the past is too remote” to be admitted as similar transaction evidence.

In Pareja v. State, however, the Supreme Court of Georgia explained that Gilstrap did not create a bright-line rule regarding the admissibility of remote similar transaction evidence. Instead, the Court instructed:

[T]he lapse of time generally goes to the weight and credibility of the evidence, not to its admissibility. Nonetheless, where similar transactions are particularly remote because they were committed decades in the past, the passage of time is one of the more important factors to weigh in considering the admissibility of the evidence in question, although it is not wholly determinative.

Thus, the prejudicial impact of similar transactions that are remote in time may be outweighed by their probative value depending on the particular facts of each case and the purpose for which the similar transactions are being offered. And when considering the admissibility of similar transaction evidence,

the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. This rule is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.

Applying these principles, the Court in Pareja found no abuse of discretion in the trial court’s admission of evidence of a similar transaction that had occurred 26 years before the defendant’s alleged act of child molestation.

This court has reached similar conclusions in cases involving significant lapses of time between the crime charged and similar transactions involving sexual acts against children. Under these circumstances, we find no abuse of discretion in the trial court’s decision to admit the similar transaction evidence.

3. Pendley contends that the trial court erred by giving the following jury charge:

I charge you that every person is presumed to be of sound mind and discretion, but this presumption may be rebutted. You may infer, if you wish to do so, that the acts of a person of sound mind and discretion are the product of that person’s will and that a person of sound mind and discretion intends the natural and probable consequences of those acts. Whether or not you make such inference or inferences is such a matter solely within the discretion of the jury.

This charge, taken directly from the pattern jury instructions, has been upheld by the Supreme Court of Georgia as a correct statement of the law. Nevertheless, Pendley argues that, pursuant to Francis v. Franklin, this charge impermissibly shifted the burden of persuasion to him on the element of intent. The Supreme Court of Georgia has rejected Pendley’s argument, distinguishing the language used by the trial court in this case from that addressed in Francis. We find no merit in this claim of error.

4. Pendley contends that the trial court erred when it failed, for sentencing purposes, to merge his conviction for cruelty to children into his conviction for rape. At issue is whether the act of cruelty to children constituted a lesser included offense to the rape. One may not be “convicted of more than one crime where one crime is included in another.” OCGA § 16-1-6 (1) states that a crime is “included in a crime charged in the indictment or accusation” when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [the other crime].” Under Drinkard v. Walker, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

The offenses with which Pendley was charged each required proof of a fact that the other did not. The offense of cruelty to children required, among other things, a showing that Pendley maliciously caused J. D. cruel or excessive mental pain. The offense of rape required, among other things, a showing that Pendley had carnal knowledge of J. D. forcibly and against her will. As such, the trial court did not err in declining to merge the two offenses for purposes of sentencing.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

Decided March 25, 2011.

Jennifer A. Trieshmann, for appellant.

Joe W. Hendricks, Jr., District Attorney, Darrell E. Wilson, Assistant District Attorney, for appellee.

       OCGA § 16-6-4 (c).

       OCGA § 16-6-1 (a) (1).

       OCGA §§ 16-4-1 (criminal attempt); 16-6-4 (child molestation).

       OCGA § 16-5-70 (b).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (citation omitted).

       See Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000) (state must prove venue beyond a reasonable doubt).

       See Chavez v. State, 306 Ga. App. 272, 274 (701 SE2d 902) (2010) (jury is solely responsible forjudging witnesses’ credibility, even on issue of venue).

       See Brown v. State, 287 Ga. App. 857, 858-859 (2) (652 SE2d 807) (2007).

       See OCGA § 16-6-1 (a) (1) (a person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will; carnal knowledge in rape occurs when there is any penetration of the female organ by the male sex organ).

        Watson v. State, 304 Ga. App. 128, 130 (1) (695 SE2d 416) (2010).

        Matlock v. State, 302 Ga. App. 173, 174 (690 SE2d 489) (2010) (citation omitted).

       See OCGA § 16-6-1 (a) (1); Matlock, supra at 174-175 (victim’s testimony that “it hurt” when defendant pushed his penis in her vagina and that he threatened to put her out of the house if she told her parents or refused sexual contact was sufficient evidence of force to support rape conviction); Casey v. State, 237 Ga. App. 461, 462-463 (3) (515 SE2d 429) (1999) (evidence that ten-year-old victim repeatedly told defendant to stop before he complied was sufficient to show that intercourse was forcible and to support rape conviction).

        See Johnson v. State, 284 Ga. App. 147, 148-149 (1) (b) (643 SE2d 556) (2007); Carey v. State, 281 Ga. App. 816, 817-818 (1) (637 SE2d 757) (2006).

        Collins v. State, 273 Ga. 93, 94 (2) (538 SE2d 47) (2000), citing Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       See Leaptrot v. State, 272 Ga. App. 587, 597 (3) (a) (612 SE2d 887) (2005) (demonstrating defendant’s lustful disposition toward young girls was an appropriate purpose for similar transaction evidence).

        Payne v. State, 285 Ga. 137, 138 (674 SE2d 298) (2009).

       261 Ga. 798 (410 SE2d 423) (1991).

       Id. at 799 (1) (b).

       286 Ga. 117 (686 SE2d 232) (2009).

       Id. at 121.

       Id. at 119 (citations, punctuation and emphasis omitted).

       Id. at 119-120.

       Id. at 121 (citation omitted).

       Id.

       See, e.g., Shorter v. State, 271 Ga. App. 528, 530 (2) (610 SE2d 162) (2005); Wright v. State, 259 Ga. App. 74, 75 (1) (576 SE2d 64) (2003).

       See Pareja, supra.

       See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Fourth Ed., Vbl. II, § 1.41.12 (2008).

        Rivera v. State, 282 Ga. 355, 364 (9) (647 SE2d 70) (2007) (considering identical charge contained in Council of Superior Court Judges, Suggested Pattern Jury Instructions, Third Ed., Vol. II, § 1.41.12 (2004)).

       471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985).

       See Flynn v. State, 255 Ga. 415, 416 (2) (b) (339 SE2d 259) (1986); see also Rivera, supra.

       See Rivera, supra; Flynn, supra.

        Bell v. State, 284 Ga. 790, 792 (1) (671 SE2d 815) (2009), citing OCGA § 16-1-7 (a) (1).

       281 Ga. 211 (636 SE2d 530) (2006).

       Id. at 215.

       OCGA § 16-5-70 (b).

       OCGA § 16-6-1 (a) (1).

       See Drinkard, supra.


author: MlKELL, Judge.

text:
    A10A1670.
    BONNER v. THE STATE.
    (709 SE2d 358)
   MlKELL, Judge.

After a jury trial, Brandon Bonner was convicted of three counts of simple battery, false imprisonment, and robbery. Bonner was sentenced to an aggregate of ten years to serve and five years on probation. On appeal, Bonner argues that his trial counsel was ineffective and that the trial court should have merged the simple battery and false imprisonment charges into the robbery charge. We affirm Bonner’s conviction and sentence for robbery and false imprisonment but vacate his sentences for battery and remand for resentencing.

1. In his first and second enumerations of error, respectively, Bonner argues that his convictions should be reversed because trial counsel was ineffective when he failed to cross-examine the co-defendant and when he did not poll the jury. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must show two things: (1) that counsel’s performance was deficient, and (2) that the deficiency prejudiced the defense to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous.

Since appellant must show both that counsel performed deficiently and that actual prejudice stemmed from the deficient performance, an insufficient showing on either prong relieves the reviewing court of the need to address the other prong.

(a) Failure to cross-examine the co-defendant. Prior to trial, Bonner’s co-defendant, Clayton Singletary, pled guilty to the same charges brought against Bonner. The record shows that Singletary also pled guilty to offenses charged in two other indictments, and that Bonner was named as one of the co-defendants in those cases as well. The maximum possible sentence for Singletary’s offenses was two consecutive life sentences plus 55 years, but Singletary negotiated a plea deal in exchange for his agreement to testify truthfully at all trials involving any of his co-defendants. After testifying in Bonner’s trial, Singletary was sentenced to twenty-five years, ten of which he would serve in custody.

Bonner argues that trial counsel should have cross-examined Singletary about his plea deal in order to inform the jury of the favorable treatment given to Singletary in exchange for his testimony At the hearing on the motion for new trial, trial counsel testified that he did not inquire into Singletary’s plea because Bonner and Singletary were friends; that he thought the jury would infer that Bonner was a co-defendant in the other cases against Singletary; and that he only wanted the jury to hear about the facts of the instant case.

“[T]he scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” Even though counsel is permitted to cross-examine thoroughly a testifying co-defendant about the terms of his plea agreement, it does not necessarily follow that counsel is ineffective for failing to do so. In the instant case, trial counsel’s decision not to question Singletary because of the potential harm to Bonner was a tactical and strategic decision. “When ruling on a claim of ineffective assistance, this Court does not evaluate counsel’s trial tactics and strategic decisions in hindsight.” Furthermore, “tactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.” Here, we cannot say that trial counsel’s failure to cross-examine Singletary about his plea was patently unreasonable, particularly in light of the potential prejudice to Bonner that trial counsel was trying to avoid.

Even if we assume, however, that trial counsel performed deficiently in this regard, Bonner cannot show that he was prejudiced thereby in light of the overwhelming evidence against him. The victim, a taxi cab driver, testified that at approximately 1:00 a.m. on January 20, 2007, he picked up Bonner and Singletary and asked them to pay the fare before driving to their destination; that they directed him into an apartment complex; that Bonner punched him in the face with a cell phone, then they dragged him over the front seat of his car onto the floor of the rear seat, restrained and beat him, and that both men took his cell phone, wallet, and his money. Additionally, there was a camera in the victim’s taxi that took a picture of Bonner that was introduced into evidence. Bonner testified that he was in Singletary’s company on the night in question; that they rode in the taxi cab driven by the victim, who told him they had to pay $30 up front and the remainder after they reached their destination; that the victim prolonged the cab ride unnecessarily then asked for more money; that he punched the victim as he exited the cab; and that the victim exited the cab and charged him.

Even in the absence of Bonner’s testimony placing him at the scene and acknowledging that he hit the victim, however, the victim’s testimony alone is sufficient to establish the facts necessary to support Bonner’s convictions. Consequently, Bonner cannot show that there was a reasonable probability that the outcome of the trial would have been different if his trial counsel had cross-examined Singletary about his plea deal. Accordingly, this claim of ineffectiveness fails.

(b) Failure to poll the jury. Bonner argues that the failure to conduct the poll of the jury rendered trial counsel deficient because the verdict may not have been unanimous. In support of his contention, Bonner relies on the fact that the jury reported that it was deadlocked on Count 3 (false imprisonment) and that a pregnant juror was upset, then returned a verdict of guilty on all counts 30 minutes later. Bonner’s argument requires that we make the assumption that the pregnant juror was the holdout juror and was coerced into voting guilty on Count 3 to conclude the deliberations. But there is no evidence in the record to support this assumption. As Bonner has cited no authority to support his position that a poll of the jury was required under these circumstances to provide effective representation, this ground of ineffectiveness also fails as “[o]ur courts have consistently rejected ineffective assistance claims based on the failure to conduct a poll.”

2. In his final enumeration of error, Bonner argues that the trial court erred when it failed to merge the battery and false imprisonment charges into the robbery charge. We agree that under the circumstances of this case, the simple batteries merge as a matter of fact.

The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.

Counts 1,2, and 4 of the indictment charged Bonner with simple battery by “grabbing” the victim, “holding him down,” and “hitting” him, respectively. Count 3 charged Bonner with false imprisonment for “unlawfully confining] and detain[ing] . . . and “arresting] ” the victim. Count 5 charged that Bonner committed robbery when he “with intent to commit theft, did take the wallet, the property of [the victim] from the person and immediate presence of [the victim] by use of force by hitting him.”

Simple battery, as charged in this case, occurs when someone “[intentionally makes physical contact of an insulting or provoking nature with the person of another.” A review of the evidence reveals that the conviction on Count 4 was based on the same act of physical violence, i.e. “hitting” the victim, used to effectuate the robbery. Similarly, the crimes alleged in Counts 2 and 3 were ongoing during the robbery. In this regard, the evidence adduced at trial, viewed favorably to the verdict, shows that Bonner was beating the victim during the struggle to get the victim’s money. The victim testified that after he stopped the mini-van/cab at the destination to which Bonner and Singletary had directed him, the following occurred:

The guy who was behind me punched my face with something he had in his hand. I believe it was a cell phone. . . . Then they pulled me from the front seat into the back seat and hold me in the floor and keep beating me up and asking me, give me the money, give me the money. I give them all the money I had and they still keep beating me up.

When asked “how were they beating you up?” the victim testified:

They pulled me from [the] front seat and I was in the back seat and the front seat laying down on the floor, and the light skin guy was on me and beating me up and the other guy was going through my pockets and took my jacket from me.

He clarified that he did not give anybody the money, “they just took it from my pockets. I told them, all the money I have, you guys keep it, and they just keep beating me up.” He also testified that one man was taking his money while the other was hitting him in the face. He added that he did not have time to get away from the two men. Bonner testified that he was fighting with the victim and “couldn’t let him go because if I let him go he would run out of the taxi. He could have got away.” Singletary testified that the “cab driver was trying to get loose . . . and [Bonner] would not let him.” During this time, Singletary was taking the victim’s money out of his jacket.

The three batteries were part of a continuous criminal act and thus merged into one. The “use of force” charged in connection with the robbery was “hitting,” which is the same type of force used in the continuous battery. The single continuous act of simple battery was the evidence required to show the “force” used to accomplish the robbery, and, therefore, the battery convictions merged with the robbery conviction.

The trial court did not err in failing to merge the false imprisonment with the robbery, however. A defendant’s conduct “may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution . . . under the other.” Robbery does not require proof that the victim was confined and detained without legal authority, and false imprisonment does not require a theft. As such, the offenses do not merge.

Decided March 28, 2011.

David C. Butler, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, Christopher W. Timmons, Assistant District Attorneys, for appellee.

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

Smith, P. J., and Adams, J., concur.

       (Footnotes omitted.) Clowers v. State, 299 Ga. App. 576, 577 (2) (683 SE2d 46) (2009).

        Allen v. State, 286 Ga. 392, 398 (5) (687 SE2d 799) (2010).

       For the crimes against the victim in the instant case, Singletary received a sentence of ten years to serve on probation on the false imprisonment and robbery charges, respectively, to run concurrently with each other but consecutive to his sentence in one of his other cases, and the simple battery charges were merged into the robbery count.

       (Citation and punctuation omitted.) Cooper v. State, 281 Ga. 760, 762 (4) (a) (642 SE2d 817) (2007). See also McDaniel v. State, 279 Ga. 801, 803 (2) (c) (621 SE2d 424) (2005) (“decisions on . . . whether and how to conduct cross examinations, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client”) (citation and punctuation omitted).

       See Daugherty v. State, 291 Ga. App. 541, 544 (3) (a) (662 SE2d 318) (2008).

       (Citation and punctuation omitted.) Hall v. Terrell, 285 Ga. 448, 455 (II) (E) (679 SE2d 17) (2009).

       (Punctuation and footnote omitted.) Serrate v. State, 268 Ga. App. 276, 278 (2) (c) (601 SE2d 766) (2004).

       See OCGA § 24-4-8.

       (Punctuation omitted.) Marshall v. State, 285 Ga. 351, 353 (4) (c) (676 SE2d 201) (2009), citing Hodge v. State, 287 Ga. App. 750, 753 (2) (a) (652 SE2d 634) (2007).

       (Citation and punctuation omitted.) Lancaster v. State, 281 Ga. App. 752, 754 (2) (637 SE2d 131) (2006). See OCGA § 16-1-6 (1).

       (Emphasis supplied.) See OCGA § 16-8-40 (a) (1) (“A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y use of force.”).

       OCGA § 16-5-23 (a) (1).

       See, e.g., Kinney v. State, 234 Ga. App. 5, 6-8 (2) (505 SE2d 553) (1998) (Aggravated battery merged with robbery by force where defendant and the victim struggled over her purse and the victim was injured during the struggle.).

       See Thompson v. State, 291 Ga. App. 355, 361 (5) (662 SE2d 135) (2008) (Two counts of battery, one for hitting the victim in the mouth and one for hitting her in the eye, merged into one where there was no evidence of “two completed exchanges separated by a meaningful interval of time or with distinct intentions.”).

       See id.; Davis v. State, 186 Ga. App. 491, 492 (2) (367 SE2d 884) (1988) (evidence did not authorize conclusion that assault with pistol was “completed” between time appellant fired shots while on the run and time when he caught up with victim and attempted to fire additional shots). Compare Hug v. State, 205 Ga. App. 746, 747 (1) (423 SE2d 700) (1992) (act of assaulting victim with hammer was completed before shooting occurred); Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978) (no merger where aggravated assault conviction was based on violent acts that were “gratuitous and unconnected” with the theft of the victim’s money).

       (Punctuation and footnote omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006).

       See id. at 217 (“Although each of the crimes shared [an] essential element. . . , and the crimes occurred during a single act by the defendant, each crime was established by proof of a fact not required to establish the other crimes.”). Cf. Ingram v. State, 279 Ga. 132, 133-134 (2) (610 SE2d 21) (2005) (Conviction of aggravated assault for the first attempt to strangle the victim was part of continuous criminal act of choking the victim to death, and, therefore, it merged with conviction of malice murder.).


author: MILLER, Presiding Judge.

text:
    A10A1830.
    BRANNON et al. v. PERRYMAN CEMETERY, LTD.
    (709 SE2d 33)
   MILLER, Presiding Judge.

This case arises out of a dispute among Haralson County residents concerning the operation of a local cemetery. Appellee Perryman Cemetery, Ltd. (“Perryman”), an entity created exclusively for charitable and religious purposes and for the ownership maintenance and operation of the cemetery, filed the underlying action seeking injunctive relief against Frank Brannon, Frances Harrison, Alice Oldroyd, and Joyce Dobbs (collectively, the “Appellants”), alleging that Appellants disrupted the peace and tranquility of the cemetery by interfering with its operation and maintenance, and by digging up and removing grave markers. Following a bench trial, and without entering a ruling as to the ownership thereof, the trial court found that the land in issue had been dedicated for use as a cemetery for that class of persons defined as “members of the Mt. Vernon Baptist Church, members of the Buchanan Branch of the Church of Latter Day Saints, members of the local community, and by family and friends of individuals previously interred in said cemetery.” The trial court also entered a permanent injunction against “all parties, their agents, designees and alter egos,” proscribing conduct that would interfere with the use and maintenance of the cemetery.

Appellants appeal, contending that the trial court erred (i) in denying their motion for judgment as a matter of law on the ground that Perryman lacked standing to sue, and (ii) in impliedly finding that the cemetery had been dedicated for a public use. Initially, Appellants also enumerated that the trial court erred in failing to issue findings of fact and conclusions of law pursuant to OCGA § 9-11-52. By their reply brief, however, Appellants later conceded that any issue as to the sufficiency of the trial court’s findings of fact has been waived. See Hathaway Dev. Co. v. Advantage Fire Sprinkler Co., 290 Ga. App. 374, 377 (2) (659 SE2d 778) (2008) (“An appellant who intends to argue that the trial court’s findings are inadequate or incomplete waives that argument by failing to make the post-judgment motion referenced in OCGA § 9-11-52 (c). ... In such cases, this Court does not remand for additional findings but simply affirms.”) (citations omitted). Discerning no error, we affirm.

While we apply a de novo standard of review to any questions of law decided by the trial court, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. . . . [The] appellate courts will not disturb fact findings of a trial court if there is any evidence to sustain them.

(Citations and punctuation omitted.) Lifestyle Home Rentals v. Rahman, 290 Ga. App. 585 (660 SE2d 409) (2008).

The evidence shows that the cemetery, consisting of 2.45 acres, is located in Haralson County and has numerous marked grave sites, including one dating back to 1862 belonging to a Perryman, and others dated in the 1880s. The first reference to a cemetery is found in a warranty deed to the Mt. Vernon Baptist Church, dated February 25, 1902, wherein the property conveyed was described as “being the lot now used as a cemetery having been first used to bury those dying from smallpox and having lately been selected as a graveyard by said church . . . .” Extensive evidence regarding record ownership of the cemetery through the ensuing years was presented, culminating in the testimony of Perryman’s expert witness who opined that Perryman held marketable title to the cemetery. Among the deeds showing record ownership, however, were two in 1965. By the first, executed in March 1965, the Estate of Mrs. WC.F. Brannon conveyed the land surrounding the cemetery to Brannon family members “except the cemetery lot. ...” By the second, executed in April 1965, Brannon family members conveyed the land surrounding the cemetery to Richard Leonard Holcombe, “excepting two acres more or less... reserved for the cemetery lot of the Buchanan Branch of the Church of the Latter Day Saints” (“Mormon Church”).

For most of its history, the cemetery enjoyed a peaceful coexistence in the community. Joint services were conducted there between people in the local community, members of the Mt. Vernon Baptist Church, and members of the Buchanan Branch of the Mormon Church. An 85-year-old who had been familiar with the cemetery since 1942 testified that when maintenance was required, “the neighborhood just went in and kept everything up” and that nobody had exclusive control over the cemetery. Another witness testified that she remembered the cemetery as “just for the community . . . .” No permission was required to be buried in the cemetery; markers could be placed anywhere you chose for relatives; there were no written or oral rules for the use of the cemetery; no one complained as to how graves were maintained; there was no fee for burial; and there was no requirement to work in the cemetery.

In 2005, however, relationships deteriorated when members of the Brannon family declared to those attending decoration services “that they were going to take back . . . the cemetery.” Relationships collapsed in 2007 when certain grave markers in the cemetery were dug up and moved — this also by members of the Brannon family. The instant action followed.

1. The Appellants contend that the trial court erred in denying their motion for judgment as a matter of law on the ground that Perryman lacked standing to sue. We disagree.

“[A]t a bench trial, the trial court’s ruling on an OCGA § 9-11-41 (b) motion for involuntary dismissal will not be disturbed if there is any evidence to support it.” (Punctuation and footnote omitted.) Magnus Homes v. Derosa, 248 Ga. App. 31, 32 (1) (545 SE2d 166) (2001).

The record shows that Perryman introduced, without objection, the testimony of its expert witness to the effect that Perryman held marketable title to the property based upon the evidence of record title before the court. Clearly, therefore, there was evidence before the trial court that Perryman had a legal interest in the cemetery. See Equitable Life Assurance &c. v. Tinsley Mill Village, 249 Ga. 769, 772 (2) (294 SE2d 495) (1982) (even if not a real party in interest, a party may have the capacity to sue upon demonstrating a right to possession of the property claimed to have been damaged). Accordingly, Perryman had standing to request injunctive relief to prohibit digging up or moving grave markers, interfering with individuals desiring to be buried with family members interred in the cemetery, and interfering with the operation and maintenance of the cemetery. Bethel Farm Bureau v. Anderson, 217 Ga. 529, 531 (1) (123 SE2d 754) (1962).

2. The Appellants also contend that the trial court erred in impliedly finding that the cemetery had been dedicated for a public use, rather than declaring it a private cemetery controlled by the Brannon heirs. This claim of error is also without merit.

The law recognizes two kinds of cemeteries, public and private.

A public cemetery is one which has been “dedicated” to the community at large. In contrast, a private cemetery is one where the land has been used for burial by the landowner, or with the landowner’s permission, and use has been restricted by the landowner to relatives or some other portion of the public (e.g., neighbors and friends) but not the community at large.

(Citation and footnote omitted.) Hughes v. Cobb County, 264 Ga. 128, 129 (1) (441 SE2d 406) (1994). Essential to a valid dedication of land for public use is satisfaction of the following elements:

(1) an intention on the part of the owner to dedicate the property to a public use; (2) an acceptance thereof by the public; and (3) where implied dedication is relied upon, [as here,] it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift.

(Citations omitted.) Haslerig v. Watson, 205 Ga. 668, 678 (9) (54 SE2d 413) (1949). Significantly,

[a]fter an owner dedicates land to public use either expressly or by his actions and the land is used by the public for such a length of time that accommodation of the public or private rights may be materially affected by interruption of the right to use such land, the owner may not afterwards appropriate the land to private purposes.

OCGA § 44-5-230; Haslerig, supra, 205 Ga. at 679.

Here, given the 1965 deeds from the Estate of Mrs. WC.F. Brannon to other Brannon family members and from Brannon family members to Holcombe excepting therefrom the cemetery, as above, the Appellants are estopped to deny by the deed recitals that there has been no dedication of the cemetery. “[A] 11 parties to a deed are bound by the recitals in it legitimately appertaining to the subject matter.” (Citation and punctuation omitted.) Lovell v. Rea, 278 Ga. App. 740, 743 (4) (629 SE2d 459) (2006).

Further, the record shows that the cemetery had been in existence for more than 40 years before the Brannon family acquired the property which surrounded the cemetery in 1924. There also was evidence that the public had long regarded the cemetery as a community cemetery and that the Brannon family had done nothing to suggest otherwise until 2005, 81 years later, when the family announced its intention to take control thereof. The duration of the land’s use as a cemetery in such circumstances constitutes “presumptive evidence of its dedication as a public cemetery . . . .” See Haslerig, supra, 205 Ga. at 683 (9) (“The notorious use of property as a burial ground for upwards of twenty years, with the knowledge and acquiescence of the owner, affords presumptive evidence of its dedication as a public cemetery, but no particular time during which the land is used for burial purposes is necessary to prove dedication.”) (Citation, punctuation and emphasis omitted.)

Under these circumstances, the trial court did not err in finding an implied dedication of the cemetery for public use. Haslerig, supra, 205 Ga. at 683 (9). Thus, having been dedicated, any authority over the cemetery which the Appellants might have had as “owners” was lost (OCGA § 44-5-230), and injunctive relief properly was entered against them.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Decided March 28, 2011.

Jack F. Witcher, Daniel B. Greenfield, for appellants.

Timothy A. McCreary, for appellee.

       Before the trial in the case, Frank Brannon died. Thereafter, Perryman dismissed him from the case without prejudice.

       During the bench trial, the trial court dismissed Dobbs from the action, based on a lack of evidence that she participated in any of the alleged acts.

       When used in this sense, “dedicated” is a term of art which describes the act of setting apart land for public use. See Hutchinson v. Clark, 169 Ga. 511 (150 SE 905) (1929).

       The briefs on appeal indicate that title to the cemetery is disputed between the parties. Given our conclusion that the cemetery was dedicated for public use, the trial court did not err in failing to render a finding as to ownership, such issue being immaterial in these circumstances. OCGA § 44-5-230; Haslerig, supra, 205 Ga. at 683 (9).


text:
    A10A1850.
    GREENE COUNTY SCHOOL DISTRICT v. CIRCLE Y CONSTRUCTION, INC.
    (708 SE2d 692)
   MILLER, Presiding Judge.

Circle Y Construction, Inc. filed the instant suit against the Greene County School District, seeking damages for breach of contract and restitution. The school district filed a motion to dismiss the suit for failure to state a claim upon which relief could be granted under OCGA § 9-11-12 (b) (6). The trial court denied the motion. We granted the school district’s application for interlocutory appeal to review the trial court’s decision. The school district contends that the trial court erred in denying its motion to dismiss since (i) the multi-year contract was void due to its failure to comply with the provisions of OCGA § 20-2-506 (b) and (ii) the restitution claim was barred by the doctrine of sovereign immunity. For the reasons set forth below, we affirm the trial court’s denial of the motion to dismiss as to the breach of contract claim. We also affirm as to the restitution claim seeking compensation for work performed under the contract. To the extent that the restitution claim also seeks compensation for work that was not contemplated by the contract, however, we must reverse.

“In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff. We review the trial court’s ruling de novo.” (Citation, punctuation and footnote omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010).

So viewed, the complaint, as amended, alleged that on or about April 16, 2008, the school district and Circle Y entered into a contract whereby Circle Y was to provide construction management services for projects to renovate, repair, improve, and add to the school district’s facilities. Circle Y’s services were to be performed on projects that the county’s voters had approved in a referendum for “ELOST” (Educational Local Option Sales Tax) funding. The contract set forth extensive duties that Circle Y was required to perform, including the preparation of daily and monthly reports reflecting the progress and costs of the projects. The contract did not contain an explicit termination date, but provided that either party could terminate the contract for cause upon seven days’ written notice. Approximately 11 months after the contract was formed, the school district sent Circle Y a letter terminating the contract.

Circle Y filed suit against the school district, seeking damages for breach of contract and restitution. Circle Y alleged that the school district’s termination of the contract was without cause. Circle Y further alleged that the school district had failed to tender compensation for work that had been performed under the contract and for additional work that was not contemplated by the contract. The school district filed an answer that denied the material allegations of the complaint. The school district also filed a motion to dismiss the complaint for failure to state a valid claim, contending that the multi-year contract was void under OCGA § 20-2-506 and that the claims for restitution, sounding in quantum meruit, were barred by sovereign immunity. Following a hearing, the trial court denied the school district’s motion.

1. The school district contends that the trial court erred in failing to find that the multi-year contract was void as a matter of law. We disagree.

The Georgia Constitution provides that no political subdivision of the state “shall incur any new debt without the assent of a majority of the qualified voters voting in an election held for that purpose as provided by law.” Ga. Constitution [of] 1983, Art. IX, Sec. Y Par. I. . . . [I]f a municipality undertakes an obligation that extends beyond a single fiscal year, then a new “debt” has been incurred within the meaning of the Georgia Constitution and requires voter approval.

(Punctuation omitted.) Barkley v. City of Rome, 259 Ga. 355 (381 SE2d 34) (1989). When voter approval is obtained for a multi-year contract, the contract is constitutionally valid and enforceable. See Burns v. Decatur County, 178 Ga. 275 (173 SE 127) (1934) (concluding that the county’s voters had approved the issuance of bonds for paving highways, and thus, the bond indebtedness was enforceable). Here, the complaint, as amended, alleged that Circle Y’s services under the contract were for projects that the county’s voters had approved in a referendum for ELOST funding. Based upon this allegation, the parties’ multi-year contract was enforceable and constitutionally valid. Id.

Otherwise, the contract was governed by the provisions of OCGA § 20-2-506, specifically applying to multi-year contracts entered into by school systems in this state. That statute provides, in part, as follows:

(b) Except as otherwise provided in this Code section, each county, independent, or area school system in this state shall be authorized to enter into multi[-]year lease, purchase, or lease purchase contracts of all kinds for the acquisition of goods, materials, real and personal property, services, and supplies, provided that any such contract shall contain provisions for the following:
(1) The contract shall terminate absolutely and without further obligation on the part of the school system at the close of the calendar year in which it was executed and at the close of each succeeding calendar year for which it may be renewed as provided in this Code section;
(2) The contract may provide for automatic renewal unless positive action is taken by the school system to terminate such contract, and the nature of such action shall be determined by the school system and specified in the contract;
(3) The contract shall state the total obligation of the school system for the calendar year of execution and shall further state the total obligation which will be incurred in each calendar year renewal term, if renewed[.]

OCGA § 20-2-506 (b). Significantly, subsection (h) of the statute further provides that “[njothing in this Code section shall restrict school systems from executing reasonable contracts arising out of their proprietary functions.” OCGA § 20-2-506 (h).

It is undisputed that the instant multi-year contract did not contain the termination provisions specified in subsection (b) of the statute, as set forth above. In an oral pronouncement of its ruling denying the motion to dismiss, the trial court nevertheless determined the contract was proprietary in nature, and thus, was not restricted by the requirements of subsection (b). See OCGA § 20-2-506 (h). Therefore, the question presented is whether a multi-year contract arising out of a school district’s proprietary functions is exempt from the requirements of OCGA § 20-2-506 (b). This particular issue is a matter of first impression before our Georgia state courts and requires a construction of OCGA § 20-2-506 (h).

[T]he cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. . . . [WJhere a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.

(Citations and punctuation omitted.) Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). Here, the plain language of OCGA § 20-2-506 (h) provides an exception to the statutory mandates for multi-year contracts by directing that “[njothing in this Code section shall restrict school systems from executing reasonable contracts arising out of their proprietary functions.'” (Emphasis supplied.) Construing subsection (h) according to its plain terms, it follows that the validity and execution of a reasonable proprietary contract is not restricted by the provisions of subsection (b). Id. This construction is reasonable in light of prior precedents reflecting that our state courts generally have allowed more flexibility for contracts made in the exercise of a municipality’s proprietary functions. See Brown v. City of East Point, 246 Ga. 144, 145 (268 SE2d 912) (1980) (noting that “cases have made a distinction between contracts made by a municipality in the exercise of its proprietary function as opposed to its governmental function, the courts allowing more flexibility in contracting in connection with the proprietary functions of a municipality”); Unified Govt. of Athens-Clarke County v. North, 250 Ga. App. 432, 435 (1) (551 SE2d 798) (2001) (same). See also City of Powder Springs v. WMM Properties, 253 Ga. 753, 756 (2) (325 SE2d 155) (1985) (concluding that the statutory prohibition of OCGA § 36-30-3 (a), preventing one council from binding its successors, is not applicable to a municipality’s proprietary functions).

We recognize, however, that the provisions of OCGA § 20-2-506 do not define the term “proprietary” for a determination of which types of contracts fall within its exception. Notwithstanding the absence of a statutory definition, the term “proprietary function” has been generally defined as “[a] municipality’s conduct that is performed for the profit or benefit of the municipality, rather than for the benefit of the general public.” See Black’s Law Dictionary 1256 (8th ed. 2004). Case law reflects that the determination of whether a contract falls within the government’s proprietary function depends upon the subject matter or the nature of the services to be provided under the contract. See City of Powder Springs, supra, 253 Ga. at 757-758 (2) (a municipality’s multi-year agreement to provide access to its sewer system was a proprietary function, and therefore, was not statutorily prohibited); Brown, supra, 246 Ga. at 145 (an ordinance to give pay increases to police officers clearly involved a governmental function); Unified Govt. of Athens-Clarke County, supra, 250 Ga. App. at 436 (1) (the county’s decision to construct an access road was a governmental function, but the subsequent steps to complete the project were within its proprietary function). The execution of a contract may involve a mix of both governmental functions and proprietary functions. See Unified Govt. of Athens-Clarke County, supra, 250 Ga. App. at 436 (1).

In Unified Govt. of Athens-Clarke County, we held that although the county’s decision to commit to the construction of an access road was governmental, the subsequent steps employed to complete the project were proprietary in nature. Id. The allegations in the instant case likewise indicate that the school district’s decision to engage in the construction projects may have been governmental, but its solicitation of private assistance from Circle Y to perform the subsequent steps necessary to complete the projects was proprietary in nature. To the extent that the contract was within the school district’s proprietary function, the exception under OCGA § 20-2-506 (h) applied and compliance with the provision of subsection (b) of the statute was not required.

The school district argues to the contrary that this Court should follow the decision in Wasilkoff v. Douglas County, 227 Ga. App. 232 (488 SE2d 722) (1997), which interpreted a different, but substantially similar, provision under OCGA § 36-60-13 (a) and concluded that a multi-year computer lease purchase agreement was void due to its failure to comply with the termination provision of the statute. Significantly, however, the Wasilkoff decision did not determine whether the multi-year contract was proprietary, as opposed to governmental, and did not issue an interpretation of the exception for proprietary contracts. See Wasilkoff, supra, 227 Ga. App. at 233-234. Accordingly, Wasilkoff is distinguishable and does not control the issue here.

In this case, because the allegations indicated that the multi-year contract pertained to projects that the county’s voters had approved in ELOST referendums or was otherwise within the school district’s proprietary functions, the trial court was authorized to conclude that the contract was not void. See Burns, supra, 178 Ga. at 281. See also OCGA § 20-2-506 (h); Unified Govt. of Athens-Clarke County, supra, 250 Ga. App. at 436 (1).

2. The school district also contends that the trial court erred in denying its motion to dismiss Circle Y’s restitution claim. It argues that the claim was barred by the doctrine of sovereign immunity.

The Georgia Constitution of 1983, Art. I, Sec. II, Par. IX (c), waives the defense of sovereign immunity “as to any action ex contractu for the breach of any written contract” entered into by a county or a school district. See generally Kaylor v. Rome City School Dist., 267 Ga. App. 647, 650 (2) (600 SE2d 723) (2004); Merk v. DeKalb County, 226 Ga. App. 191 (1) (486 SE2d 66) (1997). To recover for breach of contract, an express contract with the school district must be shown. See PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 872 (2) (257 SE2d 285) (1979). There can be no recovery against the school district for an implied contract. Id.

Accordingly, to the extent that Circle Y’s restitution claim sought to recover the reasonable value of its services rendered under the written contract, the claim was not barred. See PMS Constr. Co., supra, 243 Ga. at 872-873 (2). However, to the extent that the restitution claim also sought compensation for work that was not contemplated by the written contract, a recovery on that ground was precluded and dismissal was required. See Merk, supra, 226 Ga. App. at 193 (1) (“an implied contract will not support a waiver of sovereign immunity”). Accordingly, the trial court’s denial of the motion to dismiss the restitution claim is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and McFadden, J., concur.

Decided March 28, 2011

Harben, Hartley & Hawkins, J. Stanley Hawkins, Reagan G. Sauls, for appellant.

Brenda H. Trammell, for appellee.

       In its brief, Circle Y contends that the contract was prepared by the school district’s counsel. The school district does not refute this contention, but rather, asserts that the contract reflected the terms that both parties wanted at the time of its execution. Ironically, the school district now takes the position that the contract that it prepared was void ab initio.

       The original complaint alleged a claim for quantum meruit. The complaint was later amended to substitute the restitution claim in lieu of the quantum meruit claim.

       In ruling on a motion to dismiss, the allegations of the complaint must be accepted as true. See Roberson, supra, 302 Ga. App. at 405. If there was evidence otherwise establishing that Circle Y’s services were not covered by the ELOST funding, the school district needed to pursue a motion for summary judgment under OCGA § 9-11-56 (c).

         An unpublished federal district court decision involving a school district’s alleged breach of photocopier leases included a discussion of the provisions of OCGA § 20-2-506 (b) and (h). See Xerox Corp. v. Long County Bd. of Ed., No. CV205-175, 2006 U. S. Dist. LEXIS 23286, at *12-17 (I) (A) (S.D. Ga. Mar. 21, 2006). The court noted that the distinction between governmental and proprietary contracts has been unclear and inconsistent under Georgia case law. Id. at *17 (I) (A). The court nevertheless concluded that the photocopier leases did not impair the school district’s legislative functions and that the leases were enforceable to the extent that there was some evidence that they had been ratified by the county. Id. at *17-18, 20-22 (I) (A), (C). The federal court’s decision, however, is not binding on this court. See Porter v. Food Giant, 198 Ga. App. 736, 738 (1), n. 2 (402 SE2d 766) (1991).

       The adjective “proprietary” is also commonly defined as “privately owned and managed and run as a profit-making organization.” See Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/dictionarv/proprietarv.