text:
    A16A0168.
    ELDER v. HAYES et al.
    (788 SE2d 915)
   McMlLLIAN, Judge.

We granted Herman Elder’s motion for interlocutory appeal of the trial court’s order denying his motion for summary judgment in this action arising out of a fatal automobile collision. The wreck occurred when Wendell Hardigree’s truck rear-ended Tiffany Hayes’s sedan, causing it to spin and hit Elder’s SUV. Hayes and two other occupants of her car (collectively referred to herein as the “Plaintiffs”) sued Elder for negligence, and Elder argued in his motion for summary judgment that there was no evidence that his negligence, if any, proximately caused the Plaintiffs’ injuries. We reverse the trial court’s denial of Elder’s motion for the reasons set forth below.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, the evidence shows that the accident in this case occurred on July 7, 2010, on Georgia Highway 10 near Athens. At that location, Georgia Highway 10 is a four-lane divided highway with a 65-mph speed limit. Hayes was driving northbound in the outer, right-hand lane, with her mother’s boyfriend seated next to her in the front passenger seat; her mother, Gloria Watkins, seated behind her in the left rear passenger seat; and her 23-month-old son Tobias sitting in a baby seat located in the right rear passenger seat. Tobias was strapped into the baby seat, but Georgia State Patrol (“GSP”) investigators later determined that the baby seat was not properly secured to the car.

At the pertinent time, Hardigree was driving a truck pulling a trailer and was traveling directly behind Hayes. An ambulance responding to an emergency call approached in the inner, left-hand lane with its lights flashing and siren sounding. Elder had just entered the highway from an on-ramp and was merging into the outer lane behind Hardigree when he saw and heard the ambulance coming. After the ambulance passed him, Elder pulled into the inner lane behind it to pass Hardigree’s vehicle.

Meanwhile, Hayes heard the ambulance and braked to a stop. A factual issue exists as to whether she pulled completely onto the shoulder before stopping or whether at least a portion of her car remained in the lane of travel. Hardigree, still following Hayes, saw her vehicle stop and tried unsuccessfully to pull to the right to avoid hitting her car. Unable to stop or maneuver around Hayes’s sedan, he crashed into the rear of the car (the “First Collision”). This collision crushed the back of the sedan and pushed the trunk partially inside the rear passenger compartment.

As Elder passed Hardigree in the inner lane, he saw that Hayes’s car was slowing or stopped and realized that Hardigree was going to hit it. Elder steered into the median to avoid involvement in the crash, but when Hardigree hit Hayes, the impact of that collision pushed her car forward and spun it across the left, inner lane of traffic and into Elder’s SUV (the “Second Collision”). Hayes’s car came to a rest in the median.

The driver of the ambulance turned back to render aid. Hayes had a cut on her head. Watkins suffered a broken pelvis, a bruise to her aortic valve, and other injuries, which she said led to complications in her kidneys and which required one to two months of hospitalization. Tobias sustained multiple skull fractures and, tragically, died later that day at an Atlanta hospital.

After conducting an investigation, the GSP’s Specialized Collision Reconstruction Team (“SCRT”) concluded in a written report that the accident was caused by Hardigree following too closely behind Hayes (“SCRT Report”) without assigning any fault to Hayes or Elder.

Hayes, Watkins, Tobias (through Hayes as his next friend), and Tobias’s estate sued Hardigree and Elder for personal injury and wrongful death. The Plaintiffs assert that Elder’s “decision to closely trail the ambulance and not to move over and stop or slow down for the ambulance constituted negligence and resulted in his vehicle crashing into Tiffany Hayes’ vehicle.” The Plaintiffs also claim that Elder was negligent per se in committing a number of traffic violations, i.e., failing to yield to an emergency vehicle, following too closely, reckless driving, driving too fast for conditions, failure to exercise due care in the operation of a vehicle, and homicide by vehicle. Elder moved for summary judgment, arguing that there was no evidence that any negligence on his part — assuming any negligence existed — proximately caused the Plaintiffs’ injuries. The trial court denied the motion, finding that genuine issues of material fact remained on the issue of proximate cause, but the court certified its order for immediate review.

Causation is but one of four elements required to establish a claim of negligence in Georgia. “In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty.” (Citation and punctuation omitted.) Diamond v. Dept. of Transp., 326 Ga. App. 189, 193 (2) (756 SE2d 277) (2014). However, “[sjummary judgment is appropriate if there is a lack of evidence as to any one essential element of a party’s claim or affirmative defense. If one essential element cannot be proven, all of the other disputes of fact are rendered immaterial.” (Citations and punctuation omitted; emphasis in original.) Great Southwest Express Co., Inc. v. Great American Ins. Co. of New York, 292 Ga. App. 757, 760 (1) (665 SE2d 878) (2008).

Here, the Plaintiffs put forth two theories of causation. The first theory asserts that Elder followed the ambulance too closely, preventing Hardigree from moving to the left to avoid crashing into Hayes, thus proximately causing the First Collision. The Plaintiffs’ second theory of proximate cause posits that when

Hardigree’s truck struck . . . Hayes’s stopped vehicle[,] it pushed it from its stopped position into the path of... Elder’s SUV that was closely trailing the ambulance, with the impact from... Elder’s vehicle causing or contributing to the injuries and death complained of in the Plaintiffs’ Complaint.

Although questions of causation are generallyfor the jury, “[njever-theless, there must be sufficient evidence to create a jury question on the issue of causation.” Redmon v. Daniel, 335 Ga. App. 159, 166 (1) (779 SE2d 778) (2015). Proof of proximate cause requires a showing of “a legally attributable causal connection between the defendant’s conduct and the alleged injury” (Citation and punctuation omitted.) Grinold v. Farist, 284 Ga. App. 120, 121 (1) (643 SE2d 253) (2007). Therefore, “[tjhe plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.” (Citation and punctuation omitted.) Id. However, “[a] mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.” (Citation omitted.) Id. at 121-22 (1).

On appeal, Elder asserts that the trial court erred in denying his summary judgment motion because (1) the record is void of any evidence that any alleged negligent act on his part contributed to the First Collision, and (2) the record contains no evidence establishing that his conduct proximately caused any injuries to Watkins or Tobias in the Second Collision.

1. With regard to the first of these arguments, Elder denies that he was following the ambulance too closely, but he argues that even if he were following more closely than the law allows, the record contains no evidence that the location of his vehicle prevented Hardigree from moving into the left lane to avoid the collision.

Elder testified that he had passed Hardigree’s truck and was “enough in front of [Hayes’s car] to where [he] could not see the impact, because it occurred behind [him]Both Elder and Hardigree testified that Elder had moved over almost into the median when the First Collision occurred. Elder said that he thought he had cleared any danger until he felt the impact of the Second Collision. The Plaintiffs assert, however, that their expert’s testimony and measurements in the SCRT Report raise an issue as to whether Elder’s car had, in fact, passed Hardigree’s truck or whether it was close enough to have prevented Hardigree from moving to the left to avoid a collision with Hayes’s vehicle.

But Hardigree specifically testified that Elder’s SUV did not obstruct him from moving left to change lanes and that he never intended to move left. He stated that as he applied his brakes, they locked, pulling the truck to the right, and he decided to let his truck go onto the right shoulder, not into the left lane, in an attempt to avoid the wreck. He explained, “I didn’t have time to go to the left just like I didn’t have time to stop.” Hardigree further testified:

Q. Was there any time when Dr. Elder’s white SUV obstructed you from going to the left?
A. No.
Q. It’s my understanding that you didn’t go to the left, because you ran out of time? Is that right?
A. Yeah, I was going to the right. I was going to go around on the shoulder. But I couldn’t get stopped and slowed enough to get off the road.
Q. The position of his car had nothing to do with your not going left; did it?
A. No, because he was just about off the pavement when I spun [Hayes’s car] around[;] it ran into him.

Despite this testimony, the Plaintiffs argue that the evidence of record nevertheless raises an inference that the location of Elder’s car somehow influenced Hardigree’s decision to move right. In other words, the Plaintiffs argue that the jury could reject Hardigree’s explanation for why he moved right and instead speculate that he actually chose to move right because Elder’s car was blocking the left lane. However, “a witness’s uncontradicted testimony [cannot] simply be disbelieved in order to eliminate the evidence it provides.” Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010). Rather, on summary judgment,

what one witness says on a material point [must be] genuinely contradicted by some other evidence — what another witness says, a prior statement by the witness, or a document or other piece of physical evidence. Once the pleadings are pierced with actual evidence, the plaintiff must point to admissible evidence showing a genuine issue of fact as summary judgment cannot be avoided based on mere speculation or conjecture.

(Citation omitted.) Jobling v. Shelton, 334 Ga. App. 483, 488-89 (779 SE2d 705) (2015). See also Hill v. Jackson, 336 Ga. App. 679, 681 (783 SE2d 719) (2016) (“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”) (citation and punctuation omitted).

Accordingly, because the undisputed evidence shows that neither the location of Elder’s car nor any actions taken by him caused the First Collision, the trial court erred in failing to grant summary judgment under the Plaintiffs’ first theory of proximate cause.

2. Elder next argues that the trial court erred in denying his motion for summary judgment on the claims asserted by Watkins, Tobias, and Tobias’s estate because the record contains no evidence that Elder’s conduct, as opposed to Hardigree’s actions, caused their injuries. Stated another way, he asserts that the record contains no evidence demonstrating whether Watkins’s and Tobias’s injuries were received in the First Collision or the Second Collision.

The record contains no direct evidence of causation with respect to the injuries suffered by Watkins and Tobias. Medical records attached to the Plaintiffs’ trial court briefing indicate only that their injuries occurred as a result of a motor vehicle collision, although the emergency room report shows that Watkins was complaining of pain in her left arm and hip and the EMT’s report indicates that “apparently the front seat head rest struck [Tobias] in the head.” (Emphasis supplied.) In support of the element of causation, the Plaintiffs cite to circumstantial evidence provided by their expert accident reconstruc-tionist, licensed professional engineer Craig Depken, opining how the accident occurred. Depken did not claim to have any training as a biomechanical engineer, and he stated that he could not comment on the passengers’ injuries, stating specifically that he did not know which of the two collisions caused the injuries to Tobias. However, he stated that he could testify about the inertial effect upon the occupants resulting from each collision. Depken opined that when Har-digree’s truck collided with Hayes’s car, the impact propelled her sedan into a forward spin, thrusting its occupants backward into their seats and breaking the front seats in the car. The Second Collision with Elder’s SUV, on the other hand, would have propelled the sedan’s occupants upward and forward, which as the Plaintiffs argued in the trial court below, “provided the opportunity for the occupants of [Hayes’s car] to be thrust forward and make contact with some portion of the interior of the [car].”

The Plaintiffs assert that the jury could rely on this testimony to determine which of the collisions resulted in the injuries to Watkins and Tobias. Nevertheless, even accepting Depken’s evidence that in the First Collision, the occupants were pushed backward and in the Second Collision, they were pushed upward and forward, we find that this evidence does not establish that the injuries were more likely to have occurred in the Second Collision than in the First Collision or that the Second Collision contributed to any of the injuries.

Watkins suffered a broken pelvis and a bruised aortic valve, injuries that also apparently affected her kidneys, but the record contains no evidence showing the location of the impact to Watkins (e.g., whether to Watkins’s front, back, or side) or demonstrating the kind of impact that could have resulted in her injuries. And we cannot say that the kind of impact required to create such injuries is within the common knowledge and experience of the average layperson so that a jury could determine, without further information, which of the two collisions was more likely to have caused her injuries. See Cowart, 287 Ga. at 628 (2) (b).

Further, the evidence showed that Tobias suffered head fractures, possibly caused by impact with the front headrest, and that Tobias’s car seat was not attached to the car. Depken testified that the front seat broke during the First Collision. Thus, it is unclear from the evidence whether Tobias’s head injuries could have occurred during the First Collision when the seat in front of him broke or whether it was more likely to have occurred during the Second Collision when the occupants were projected forward.

In the absence of clear evidence indicating which of the collisions caused, or was more likely to have caused, the injuries to Tobias or Watkins, we are guided by this Court’s earlier decision in Berry v. Hamilton, 246 Ga. App. 608 (541 SE2d 428) (2000). In Berry, a motorcyclist fell off her motorcycle on 1-285 and then was run over by Hamilton, who stopped and called 911. After police arrived but before they could stop traffic, they saw two other unknown drivers run over the motorcyclist, who was dead at the scene. Id. at 608. Doctors could not pinpoint which of multiple life-threatening injuries had killed her, or when. Thus, the doctor could not determine whether the motorcyclist had died when she fell off her motorcycle or when she was later run over by several automobiles. Id. at 609-10. In a subsequent suit filed by the victim’s survivors, this Court affirmed the grant of summary judgment to Hamilton, holding that there was no evidence that he had proximately caused her death, as it was also possible that she could have died in the initial fall from the motorcycle. Id. at 610. The Court held that “[wjhen a party is relying on inferences to prove a point, not only must those inferences tend in some proximate degree to establish the conclusion sought, but must also render less probable all inconsistent conclusions.” (Citation omitted.) Id. Thus, “[tjhe circumstantial evidence must be sufficient to establish a reasonable inference that [the defendant] caused [the injuries]. If it raises only a mere conjecture as to how [the injuries occurred], there can be no recovery.” Id.

Here, the evidence shows only that the Second Collision presented an “opportunity” for injury, as the Plaintiffs argued below, but the evidence also presents the possibility that Watkins and Tobias suffered their injuries in the First Collision. Because the circumstantial evidence of record leaves the jury to conjecture how and when the injuries to Watkins and Tobias occurred, the trial court erred in denying Elder’s motion for summary judgment as to their claims. See Redmon, 335 Ga. App. at 166-67 (1); Dawkins v. Doe, 263 Ga. App. 737, 740 (1) (589 SE2d 303) (2003); Berry, 246 Ga. App. at 610.

Decided July 8, 2016

Cowsert & Avery, M. Steven Heath, Matthew A. Moseley, for appellant.

The Cuffie Law Firm, Thomas F. Cuffie, Harold W. Spence, for appellees.

Judgment reversed.

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

       We note that in their briefs in the trial court and on appeal, the Plaintiffs cited to allegations in their unverified complaint to support certain of their factual statements without also providing a record citation demonstrating that the cited allegation had been admitted by Elder. We take this opportunity to remind counsel that “unsworn allegations in pleadings that have not been admitted by the opposing party are not evidence for purposes of summary judgment resolution.” (Citation and punctuation omitted.) Sirdah v. N. Springs Assoc., LLLP, 304 Ga. App. 348, 352 (3) (696 SE2d 391) (2010).

       Hardigree also testified that when he went to Hayes’s car after the accident, he observed that the baby seat was not strapped to the car.

       The record indicates that Watkins’s boyfriend was also injured and transported to the hospital, but he is not a party to this litigation. Elder and Hardigree apparently were not seriously injured.

       The claims against Hardigree were dismissed by consent judgment, but those against Elder remain pending.

       Elder testified that the ambulance was “moving away from [him] rapidly” and that at the time of the collision the ambulance was “long gone” and “quite a ways in front of” the collision site.

       Hardigree also testified that Elder was just trying to get out of the way and did not cause either the First or Second Collision.

       Although Elder originally also sought summary judgment as to Hayes’s claims for her own injuries, in his reply brief below, he withdrew the motion as to her claims, acknowledging that an issue of fact existed as to causation on such claims. We note that Hayes testified in her deposition that the injury to her head did not occur in the First Collision. She said that she received that injury when she hit the windshield during the Second Collision.


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A16A0374.
    NATEGHI v. BEAUFORD PROPERTIES, LLC et al.
    (788 SE2d 909)
   Ellington, Presiding Judge.

This appeal arises out of a declaratory judgment action by lessee Mehdi Nateghi, who sought to affirm the validity of an alleged agreement to extend the term of his lease for the premises located at 887 Marietta Street in Atlanta (the “Property”). The jury found for defendants Beauford Properties, LLC (“Beauford”), the original owner and lessor of the Property, and 887 Marietta, LLC (“Marietta”), the subsequent purchaser of the Property, on the issue of whether there was an agreement between Nateghi and Beauford to extend the terms of the lease. The jury, in a special verdict, also found for Beauford and Marietta on their counterclaims, and awarded Marietta, as pertinent to this appeal, $312,286.25 in damages for lost profits caused by Nateghi’s wrongful occupancy of the Property, and $97,319.64 in attorney fees. On appeal, Nateghi contends that the trial court erred in denying his motions in limine, for a directed verdict, and for a judgment notwithstanding the verdict. He also contends the court erred in awarding attorney fees. For the reasons set forth below, we find that the trial court erred in denying Nateghi’s motions for a directed verdict and for a judgment notwithstanding the verdict on the issue of Marietta’s damages for lost profits, and we direct that such damages be stricken from the judgment. However, we affirm the award of attorney fees. Accordingly, we reverse in part, affirm in part, and remand the case with direction.

Construed to uphold the jury’s verdict, the evidence shows that Beauford leased the Property to Nateghi under a Commercial Lease Agreement (the “Lease”) for a term which, as renewed, extended from October 10, 2007, through September 30, 2011. Nateghi negotiated the Lease with Howard Perling, a real estate broker. On September 30, 2010, Nateghi sent an e-mail to Perling asking that the rent be reduced to $1,800 per month. Perling, who was then managing the Property for Beauford, forwarded the e-mail to Beauford, which instructed Perling to “stay on [Nateghi] and try to get the money[.]”

According to Nateghi, he signed and personally hand-delivered a letter, dated October 18, 2010, to Perling in which he exercised a purported option, the terms of which had been orally communicated to him by Perling, to extend the Lease for an additional three years at $1,800 rent per month. Perling testified that he never received this letter, that he never communicated to Nateghi an offer to extend the Lease term, and that he was not authorized by Beauford to extend the Lease. Two officers of Beauford also testified that Beauford never offered to change the terms of the Lease.

From October 2010 through September 2012, Nateghi tendered rent checks to Beauford in the amount of $1,800. Beauford sold the Property to Marietta in September 2012. In early October 2012, Nateghi received a letter from Marietta which informed him that the Lease had expired on September 30, 2011, that he occupied the Property as a tenant at will, and that the letter served as 60 days’ notice of the termination of his tenancy. After receiving the letter from Marietta, Nateghi filed a petition for declaratory judgment against Beauford and Marietta seeking an order affirming the validity of the agreement outlined in Nateghi’s letter of October 18, 2010, and his good faith performance thereunder. Beauford answered and counterclaimed for past due rent and other charges under the Lease. Marietta answered and counterclaimed for, among other things, damages caused by Nateghi’s continued occupancy of the Property.

The trial court and the parties agreed to bifurcate the trial. Following the initial phase of the trial, the jury rejected Nateghi’s contention that there was an agreement between Beauford and Nateghi to extend the term of the Lease for three years beyond its specified expiration date of September 30, 2011.

F ollowing the second phase of the trial, the jury found in a special verdict that, among other things, Marietta suffered damages caused by Nateghi’s wrongful occupancy of the Property in the amount of $312,286.25 for lost profits. The jury also found that Marietta was entitled to recover attorney fees. The trial court entered final judgment in accordance with the jury’s verdict, as well as on Beauford’s post-trial motion for attorney fees, and Nateghi appeals.

1. In related claims of error, Nateghi contends that the trial court erred (a) in denying his motions for directed verdict on Marietta’s claim for damages for anticipated or lost profits and for judgment notwithstanding the verdict, and (b) in denying his motion in limine to exclude evidence of Marietta’s lost profits.

(a) After Marietta presented its evidence in the second phase of the trial, Nateghi moved for a directed verdict on the ground that the evidence was too speculative to support Marietta’s claim for damages for lost profits. Following the trial, Nateghi moved for judgment notwithstanding the verdict.

In determining whether the trial court erred by denying [Nateghi’s] motion for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Citation, punctuation and footnote omitted.) Wolf Camera v. Royter, 253 Ga. App. 254, 255 (1) (558 SE2d 797) (2002).

So viewed, the evidence showed that Marietta purchased the Property with the intent to operate a restaurant thereon. Marietta’s principals had previously opened a restaurant at another location. When Marietta acquired the Property, it also bought an adjacent tract because, as explained by John Amend, Marietta’s principal, “one wasn’t available without the other.” The Property had a building with heat, electricity, gas, and running water. The building on the adjacent tract had none of those things.

After it became clear to Marietta in December 2012 that it would not have access to the Property within a reasonable period of time, it decided to develop the adjacent building, rather than the Property Marietta opened its restaurant on the neighboring site on July 2, 2014. Amend testified that, but for Nateghi’s decision to hold over on the Property, it would have taken six months to develop the Property for purposes of opening its restaurant and not the almost two years that was required to develop the adjacent tract.

As to the damages Marietta claimed for lost profits, Amend testified:

I’ve looked at the revenue that we generated over the last year and I looked at the revenue that we generated at the location. I do have a lot of experience in what restaurants should be doing in terms of their profit, and I took that at 20 percent. I believe it’s over 15 months. Again, it’s in my notes which I think you have. From a simple standpoint, that’s about what we would have done in terms of profit during that time. Part of it is that I would have been six months in development. Instead of taking almost two years, it was a year and ten months. So that difference [in profit] is what I tried to capture.

As a general rule, “the expected profits of a commercial venture are not recoverable as they are too speculative, remote, and uncertain.” Johnson County School Dist. v. Greater Savannah Lawn Care, 278 Ga. App. 110, 112 (629 SE2d 271) (2006). See SMD, L.L.P. v. City of Roswell, 252 Ga. App. 438, 441 (2) (555 SE2d 813) (2001) (accord). As an exception to this rule, “when the type of business and history of profits make the calculation of profits reasonably ascertainable, lost profits may be recovered. Thus, generally speaking, lost profits may be recovered by a business only if the business has a proven track record of profitability” (Punctuation and footnotes omitted.) EZ Green Assocs. v. Georgia-Pacific Corp., 331 Ga. App. 183, 187-188 (2) (770 SE2d 273) (2015). Further,

[i]n order to establish lost profits, the jury must be provided with information or data sufficient to enable them to estimate the amount of the loss with reasonable certainty. Generally speaking, this means that they must be provided with figures establishing the business’s projected revenue as well as its projected expenses.

(Citation and punctuation omitted.) Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga. App. 598, 599 (1) (399 SE2d 92) (1990) (Exclusion of evidence of revenues could not have been harmful in light of plaintiff’s failure to prove his expenses, which precluded the determination of lost profits.). Compare Bennett v. Smith, 245 Ga. 725, 727 (267 SE2d 19) (1980) (Where expenses remained unchanged during a work stoppage, the jury would have been authorized to award lost revenues as damages without deducting production expenses therefrom.).

Here, the evidence showed that Marietta established a restaurant at essentially the same location as the Property, and that its principals had established another restaurant at a second location. In calculating the amount of lost profits attributable to Nateghi’s having held over on the Property, Amend assessed “revenues generated,” but he did not testify that there was a record of profits at either of the restaurant locations, or by Marietta’s business. Rather, according to Amend, he had “experience in what restaurants should be doing in terms of profits” and he “took that at 20 percent.” Nor did Marietta present evidence of projected revenues and expenses for a restaurant operating at the Property during the time period that Marietta contends that its profits were lost. Generally, “to recover lost profits one must show the probable gain with great specificity as well as expenses incurred in realizing such profits.” (Citation and punctuation omitted.) Bldg. Materials Wholesale v. Triad Drywall, 287 Ga. App. 772, 776 (2) (653 SE2d 115) (2007) (Where testimony showed the plaintiff’s history of profits, as a percentage of contract amounts, as well as the amount of revenues lost as a result of defendant’s breach of contract, the plaintiff was nevertheless required to put up evidence of its anticipated expenses to allow recovery of lost profits for a transaction that was never completed.). Marietta’s evidence, which failed to demonstrate that its business had a proven record of profitability and lacked a showing of anticipated revenues and expenses for the restaurant it had intended to operate on the Property, was legally insufficient for it to recover lost profits as an element of damages.

The speculations, guesses, estimates of witnesses, form no better basis of recovery than the speculations of the jury themselves. Facts must be proved, data must be given which form a rational basis for a reasonably correct estimate of the nature of the legal injury and of the amount of the damages which resulted from it, before a judgment of recovery can be lawfully rendered.

(Citation and punctuation omitted.) Tri-State Systems v. Village Outlet Stores, 135 Ga. App. 81, 85 (217 SE2d 399) (1975) (Witness’s assertion that his business was damaged in the amount of $40,000 was without value in the absence of statements or records reflecting the business’s previous and present profits or losses.). As the evidence of Marietta’s lost profits amounted to no more than speculation, the trial court erred in denying Nateghi’s motions for a directed verdict and for a judgment notwithstanding the verdict as to Marietta’s claim for damages for lost profits.

(b) Nateghi also contends that the trial court erred in denying his motion in limine to exclude lost profits evidence. We find this claim of error to be moot because we have ordered the award of damages for lost profits stricken from the judgment in Division 3, infra, and because there is no reasonable likelihood that the evidence of lost profits otherwise affected the jury’s verdict.

2. Nateghi further contends that, because the jury’s award of attorney fees was “derivative,” the trial court erred in awarding attorney fees. Nateghi has not cited to any legal authority to support this claim of error, and his argument does not set forth a cogent basis for reversal. Therefore, we deem it abandoned under our Rule 25 (c) (2). See Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (legal argument requires the application of the appropriate law to the relevant facts).

Decided July 8, 2016.

Smith, Collins & Fletcher, W. Anthony Collins, Jr., for appellant.

Arnall Golden Gregory, LLP, James A. Gober; Giacoma, Schleicher, Roberts & Daughdrill, Mary F. Giacoma, Kristofer R. Schleicher, Brian E. Daughdrill, for appellees.

3. Where a motion for directed verdict is erroneously denied, the appellate court “may direct that judgment be entered below in accordance with the motion or may order that a new trial be had, as the court may determine necessary to meet the ends of justice under the facts of the case.” OCGA § 9-11-50 (e). Further, “[t]he whole judgment will not be set aside because of error as to a part thereof, where it can be determined from the record how much is erroneous.” (Citation and punctuation omitted.) Scott v. Thompson, 193 Ga. App. 487, 488 (2) (388 SE2d 371) (1989). Because that portion of the jury’s award attributable to damages for lost profits is ascertainable from the special verdict form, we conclude that a new trial is not required. We direct that the award of damages for lost profits in the amount of $312,286.25 be stricken from the judgment, which otherwise stands affirmed. See, e.g., Norfolk & Dedham Mut. Fire Ins. Co. v. Cumbaa, 128 Ga. App. 196, 200 (3) (196 SE2d 167) (1973) (ordering that the award of attorney fees and penalties, the directed verdict as to which the trial court erroneously denied, be stricken from the judgment).

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

Mercier, J., concurs. Branch, J., concurs in judgment only.

       See Esprit Log and Timber Frame Homes v. Wilcox, 302 Ga. App. 550 (691 SE2d 344) (2010) (“[A]fter rendition of a verdict, all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict.”) (citation and punctuation omitted).

       Marietta later filed a motion for summary judgment, which the trial court denied. This Court granted Marietta’s application for an interlocutory appeal from the trial court’s order denying its motion for summary judgment in our Case No. A1410047. That appeal, Case No. A14A1488, was subsequently dismissed by this Court.

       The jury also found, as damages caused by Nateghi’s wrongful occupancy of the Property, $49,995.95 for unpaid rent and other contractual damages, $2,624.79 for interest on the unpaid rent and other contractual damages, and $218,309.92 for other development costs.

       The trial court entered an order designated as its final order and judgment on July 9, 2015, and entered an amended final order and judgment on July 10, 2015. Nateghi identified only the July 9, 2015 order in his notice of appeal. Marietta contends that, because the amended order entered July 10, 2015, is the final order in the case and is not referenced in Nateghi’s notice of appeal, this Court must dismiss this appeal. We disagree. “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from . . . , the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed!.]” OCGA § 5-6-48 (f). It is apparent from the notice of appeal and his enumeration of errors that Nateghi appeals from the final order entered below, and his reference to the order entered July 9, 2015, rather than the order entered July 10, 2015, does not subject his appeal to dismissal. See Bagwell v. Henson, 124 Ga. App. 92 (183 SE2d 485) (1971) (The incorrect designation of the date of the judgment in the notice of appeal did not render the appeal subject to dismissal.).

       Marietta contends that Nateghi’s claims that the trial court erred in denying his motions for a directed verdict and for a judgment notwithstanding the verdict should be deemed abandoned because, in his appellate brief, he argues as to these claims of error only that the evidence of lost profits was insufficient because the evidence was inadmissible. However, Nateghi presented his legal and factual contentions as to the speculative nature of the lost profits evidence in arguing that the trial court erred in denying his motion in limine, and we understand those arguments to also apply to his claim that the trial court erred in denying his motions for a directed verdict and for a judgment notwithstanding the verdict.

       Nateghi also references “insufficient evidence of lost profits and building costs” within his argument that the trial court erred in denying his motion for a judgment notwithstanding the verdict. Pretermitting whether this isolated reference to “building costs” might be interpreted as an argument that the evidence was insufficient to support the jury’s award of damages for development costs, such an argument, if intended, is unsupported by reference to the record or citation to legal authority, and is abandoned. See Court of Appeals Rule 25 (c) (2).

       See Harris v. Tatum, 216 Ga. App. 607, 608 (1) (a) (455 SE2d 124) (1995) (finding grant of motion for directed verdict as to issue of informed consent rendered moot claim of error as to the trial court’s denial of appellant’s motion in limine because appellant failed to show “any fair risk exists that the jury’s subsequent verdict in favor of plaintiffs was contributed to by the denial of their motion in limine as to informed consent.”).

       It is unclear if Nateghi intends to challenge the award of attorney fees to both Marietta and Beauford. Nateghi does not identify the basis for either fee award. He also fails to specify the claims for which he contends the attorney fees are derivative.


author: DOYLE, Chief Judge.

text:
    A16A0041.
    MITCHELL v. THE STATE.
    (789 SE2d 797)
   DOYLE, Chief Judge.

After a jury trial, Keith Allen Mitchell was convicted of making harassing phone calls, burglary, two counts of aggravated assault, two counts of false imprisonment, three counts of aggravated sodomy, two counts of rape, and possession of a knife during the commission of a crime. The jury acquitted Mitchell of one count of theft by taking. After the trial court denied his motion for new trial, Mitchell filed this appeal, arguing that (1) the evidence was insufficient to support his conviction as to the two counts of false imprisonment; (2) the trial court erred by improperly instructing the jury as to venue; (3) the trial court erred by denying his motion for a mistrial following an officer’s testimony regarding Mitchell’s pre-trial detention; and (4) his sentence is void because the trial court failed to merge various counts for sentencing. For the reasons that follow, we affirm Mitchell’s conviction, vacate his sentence, and remand the case for resentencing.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.”

So viewed, the record shows that Mitchell and A. D. dated for approximately two months following a few months of phone and electronic communication, but A. D. eventually ended the relationship in March 2012. During April 2012, Mitchell repeatedly called A. D. attempting to reunite with her, threatening suicide or becoming irate, and on one such call he stated that A. D.’s father could stay with her as much as her father wanted, but at some point he would have to go home and then A. D. would be sorry

Thereafter, on April 29, 2012, around 5:00 p.m., A. D. returned home with her 12-year-old son, S. D., and went upstairs to her bedroom, where Mitchell accosted her, wielding a knife he had taken from her kitchen. A. D. was terrified and screamed, and Mitchell told her to be quiet, coming toward her with the knife in his hand and trying to put his other hand over her mouth to silence her. S. D. came to the bedroom after hearing his mother’s screams, and A. D. put herself between Mitchell (who put the knife out of sight when S. D. entered the room) and S. D. Mitchell stated that he needed to talk to A. D., but she had been refusing to do so.

S. D. stated he needed to use the restroom, and Mitchell took him into the attached bathroom and closed him into the separate toilet area, making sure that S. D. did not have his cell phone. Mitchell told S. D. to stay in the bathroom because he needed to talk to A. D.

At this point, Mitchell returned to the bedroom, took a pair of pantyhose from a drawer where A. D. had not put them, and cut a hole in the pantyhose crotch, telling A. D. to put them on and that he came for sex. A. D. removed her pants and put on the pantyhose, and Mitchell then demanded that she “suck [his] dick” and “whine.” The knife was on the bed while A. D. performed this act, and Mitchell told A. D. that as long as she complied with him, he would not hurt her. Mitchell then had forcible vaginal intercourse with A. D. A. D. testified that neither sex act was consensual, and she believed that Mitchell would kill her and S. D.

S. D. then knocked on the bathroom door from inside, asking if he could come out, and Mitchell finally allowed S. D. out of the bathroom upon A. D.’s suggestion that he might be hungry; Mitchell escorted them downstairs, still holding the knife, and A. D. prepared food that S. D. and Mitchell ate. S. D. asked if he could play a video game, and Mitchell said he could, but A. D. told S. D. to turn off a communication feature because she was afraid of what Mitchell might do if S. D. tried to call for help.

While S. D. was playing the game, Mitchell talked to A. D., accusing her of turning their friends against him, and she attempted to convince him otherwise; A. D. asked what Mitchell would do if someone was doing these acts to his niece. At that point, Mitchell became agitated again and told A. D. that he would “tell them they needed to do whatever they needed to do to stay alive and that’s what [she] need[ed] to do.” Mitchell directed A. D. with the knife to return to her bedroom, and she asked him what was going to happen to her. Mitchell explained that he was going to stay, they would have sex all night, and then he would leave.

Mitchell then made A. D. put on pantyhose and a nightie before making her perform intercourse. Mitchell then discovered a butcher knife from on top of A. D.’s bedside table, which she had started keeping there when Mitchell began making harassing calls to her. Mitchell confessed that he had slept in her back yard Thursday night, and came into her house on Friday and stayed in her attic and garage the Friday and Friday night before the Saturday in question.

A. D. attempted to talk to Mitchell to calm him down and suggested taking S. D. out to eat, so Mitchell allowed her to take them to a local fast food restaurant, where they ordered ice cream from the drive-through window. Mitchell had the knife in his pocket during this time, and he would pat his pocket during the trip.

S. D. attempted to stay in the vehicle when they arrived back home, but A. D. told him he needed to go back inside. Mitchell told A. D. the two of them needed to go back upstairs. Mitchell told her to “suck [his] dick,” and then he asked if he could perform oral sex on her. A. D. testified that she “did not feel like [she] was in a position that it was safe for [her] to say no.” Mitchell then performed vaginal intercourse on A. D. again.

At this point, around 11:00 p.m., A. D. attempted to get Mitchell to leave, telling him he was not raping her and that she would not contact police. Mitchell retrieved his shoes from A. D.’s attic, and she told him she would give him money and drive him to a bus station. Mitchell made her leave her cell phone at home, and she withdrew $200 from her bank for him on the way to the bus station; A. D. left Mitchell at the station, and then drove to a gas station where she called her father and told him about the events so he would meet her at her house. A. D. went home, where S. D. was sleeping, and she called police, who took her for a forensic evaluation at a local hospital.

After the evidence was presented to the jury, they found Mitchell guilty of all charges except theft by taking the knife from A. D.’s kitchen. Mitchell’s motion for new trial was denied, and this appeal followed.

1. Mitchell argues that the evidence was insufficient to support his conviction as to the two counts of false imprisonment because there was no evidence that Mitchell confined or detained the victims against their will.

OCGA § 16-5-41 (a) states that “[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority” While Mitchell contends that there is insufficient evidence to support his conviction on the two counts of false imprisonment, Mitchell actually attacks the credibility of A. D.’s testimony that the confinement was against her will because she cooked a meal for S. D. and took him and Mitchell to a local fast food restaurant. The record, however, established that Mitchell possessed a knife and threatened S. D. throughout the day-long encounter, including during the excursion from the house to the fast food restaurant. Moreover, evidence supported the jury’s conviction of Mitchell for the false imprisonment of S. D. despite Mitchell’s contention that S. D. (who was 12 at the time of trial) could not remember who made him stay in the home’s bathroom while Mitchell raped and sodomized A. D. at knife-point in the adjoining bedroom.

This court does not weigh the evidence or determine witness credibility; rather, we determine only whether the evidence was sufficient to enable a rational trier of fact to convict the defendant under the standard set forth in Jackson v. Virginia.[ ] As long as there is some competent evidence to support each fact necessary to make out the [Sjtate’s case, we will uphold the jury’s verdict.

In this case, the jury’s verdict was supported by A. D.’s testimony that the two victims were held by Mitchell in the home for approximately six hours, and she did not attempt to escape because she was afraid that Mitchell would harm her or S. D., as well as the testimony of both victims that Mitchell told S. D. to stay in the bathroom and patted him down for a cell phone. Accordingly, this enumeration is without merit.

2. Mitchell next argues that the trial court violated OCGA § 17-8-57 by commenting on the evidence when charging the jury on venue. During the jury charge, the trial court instructed:

The law provides that criminal actions shall be tried in the County in which the crime was committed. Venue, that is, the crime was committed in Cherokee County, is a jurisdictional fact that must be proved by the State beyond a reasonable doubt as to each crime charged in the accusation just as any element of the offenses. Venue must be proved by direct or circumstantial evidence, or both.

Mitchell argues that the language italicized above was an impermissible comment that venue had been proven. At the time of Mitchell’s trial, OCGA § 17-8-57 provided that “[i]t 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.” Nevertheless, a trial court’s jury charge violates the statute “only when [its] instruction, considered as a whole, assumes certain things as facts and intimates to the jury what the [court] believes the evidence to be.”

In this case, the trial court’s challenged statement did not reflect an opinion as to what had been proved; rather, it was an instruction of the specific fact that the State was required to prove venue beyond a reasonable doubt. The trial court’s charge, as a whole, was a correct statement of the law — in order for the jury to convict Mitchell of the charged crimes, the jury was required first to determine that the State properly tried him in the county in which the alleged crimes had to have occurred. It was not an impermissible statement by the trial court that the crimes actually occurred in Cherokee County or that the State properly indicted Mitchell therein. Thus, there is no merit to Mitchell’s claim that the trial court violated former OCGA § 17-8-57 by giving the standard pattern jury instruction on venue. Accordingly, this enumeration is without merit.

3. Next, Mitchell contends that the trial court erred by denying his motion for mistrial following an officer’s testimony regarding Mitchell’s pre-trial detention.

At trial, an officer testified as follows regarding the collection of saliva from Mitchell: “It was on May 8,2012, we met with Mr. Mitchell at the Cherokee County Jail[,] and I obtained a — four swabs of his — excuse me — four swabs of his saliva.” At this point, Mitchell objected, contending that the State had introduced bad character evidence and requesting a mistrial. The trial court denied the motion.

Pretermitting whether the jury would have understood this comment to mean that Mitchell was housed in the jail at that time rather than understanding that Mitchell met with the officer at the jail, this was a passing reference to Mitchell’s pre-trial incarceration for the charged offenses, and thus, there was no error in the trial court’s denial of the motion for mistrial.

4. Finally, Mitchell argues that his sentence is void because the trial court failed to merge various counts for sentencing purposes.

(a) Mitchell contends that Count 3, alleging aggravated assault with a deadly weapon, should have merged with Count 8, alleging rape, because both counts gave rise to the same conduct occurring on the same day.

When a defendant is convicted of multiple crimes based upon the same act, the principle of factual merger operates to avoid the injustice [of multiple sentences for the same offense]. In Drinkard v. [Walker],[ ] [the] Supreme Court of Georgia adopted the “required evidence” test set forth by the Supreme Court of the United States to resolve these situations. Thus, to determine whether convictions for multiple crimes merge for purposes of sentencing, the applicable rule is that 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 [statutory] provision requires proof of a fact which the other does not. The test focuses on the evidence required to establish the statutory elements of each criminal offense, not the actual evidence presented at trial.

Mitchell points to the trial court’s merger of Count 4, alleging aggravated assault with intent to rape, with Count 8, alleging rape, in support of his contention that Count 3 should also have merged with Count 8. We agree with the trial court, however, that the indictment did not allege in Count 3 that the assault with a deadly weapon occurred at the time of the rape, and the facts presented at trial show that Mitchell initially assaulted A. D. with the knife prior to falsely imprisoning A. D. and S. D. in A. D.’s bedroom, demanding to “talk” with her. Accordingly, the trial court did not err by separately sentencing Mitchell on Count 3.

(b) Mitchell also contends that the trial court erred by failing to merge two aggravated sodomy counts (7 and 12) and the two counts alleging rape (8 and 13) because the averments in the two counts in each group are indistinguishable from each other.

The evidence adduced at trial established at least two separate incidents of rape and two separate incidents of aggravated sodomy as alleged in Counts 7 and 12. Nevertheless, if “two charges are indistinguishable because all of the averments, including... victim[ ] and description of defendant’s conduct constituting the offense were identical, only one sentence may be imposed.” In this case, Counts 7 and 12 both charged that Mitchell “did place his sex organ in the mouth of [A. D.], said act being done with force and against the will of said other person, the allegations of this count of the indictment being separate and distinct from the allegations of any other count in this indictment.” Counts 8 and 13 both charged that Mitchell “did have carnal knowledge with [A. D.], a female, forcibly and against her will, the allegations of this count of the indictment being separate and distinct from the allegations contained in any other count in this indictment.” Although the indictments included the phrase “the allegations of this count of the indictment being separate and distinct from the allegations contained in any other count in this indictment,” this phrase was not charged to the jury nor stated in the indictment as being a material averment distinguishing the two counts. For instance, in Bloodworth v. State, the State made material the normally immaterial date averred within the indictment by stating that “the date herein alleged being a material averment as to this count.” Accordingly, because the trial court erred by failing to merge Count 7 with 12 and Count 8 with 13, we vacate the sentence and remand for resentencing.

Decided June 16, 2016

Reconsideration denied July 11, 2016

Law Office of Gregory Hicks, Amanda G. Speights, for appellant.

Shannon G. Wallace, District Attorney, Wallace W. Rogers, Jr., Cliff Head, Assistant District Attorneys, for appellee.

(c) Mitchell also contends that two counts of aggravated sodomy should have merged into the third count. Count 11 charged Mitchell with forcibly placing his mouth on the sex organ of A. D., and therefore, it charged different, conduct than Counts 7 and 12, which charged Mitchell with forcing his sex organ into A. D.’s mouth. Accordingly, it was not erroneous for the trial court to sentence Mitchell separately on Count 11.

Judgment affirmed, sentence vacated and case remanded for resentencing.

Andrews, P. J., and Ray, J., concur.

       OCGA § 16-11-39.1 (a) (1).

       OCGA § 16-7-1 (b).

       OCGA §§ 16-5-21 (b) (1) (“Count 4”), (b) (2) (“Count 3”).

       OCGA § 16-5-41 (a).

       OCGA § 16-6-2 (a) (2).

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-11-106 (b) (1).

       (Citation and punctuation omitted.) Ellis v. State, 316 Ga. App. 352, 353 (729 SE2d 492) (2012).

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       (Footnotes omitted.) Hammonds v. State, 263 Ga. App. 5, 6 (1) (587 SE2d 161) (2003).

       See Ellis, 316 Ga. App. at 356 (1) (d) (testimony that the victim went with the defendant because she fearedfor the safety of her mother and did what defendant told her because she had no choice was sufficient to support his conviction for false imprisonment).

        See Rehberger v. State, 235 Ga. App. 827, 828 (1) (510 SE2d 594) (1998) (explaining that there is no specific length of time for a detention to constitute false imprisonment). Cf. Lewis v. State, 215 Ga. App. 161, 163 (2) (450 SE2d 448) (1994) (“The state of mind of the victim . . . is a question of fact, which may be established by circumstantial evidence.”).

       (Emphasis supplied.)

       (Citations and punctuation omitted.) Simmons v. State, 291 Ga. 705, 708 (5) (733 SE2d 280) (2012).

       See State v. Dixon, 286 Ga. 706, 707 (2) (691 SE2d 207) (2010); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.51.10 (2007).

       See Hargett v. State, 285 Ga. 82, 87-88 (4) (674 SE2d 261) (2009) (no OCGA § 17-8-57 violation where trial court gave pattern jury charge on prior consistent statements).

       See, e.g., Johnson v. State, 256 Ga. 604, 605 (2) (351 SE2d 623) (1987).

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

       (Punctuation and footnotes omitted.) Gordon v. State, 337 Ga. App. 64, 68-69 (2) (785 SE2d 900) (2016), quoting Nolley v. State, 335 Ga. App. 539 (2) (782 SE2d 446) (2016) and Gordon v. State, 334 Ga.App. 633, 636 (780 SE2d 376) (2015) (quoting Drinkard, 281 Ga. at 215, and citing Blockburger v. United States, 284 U. S. 299 (52 SCt 180, 76 LE 306) (1932)). See also OCGA § 16-1-6 (1).

        See Bolden v. State, 335 Ga.App. 653, 654-655 (1) (782 SE2d 708) (2016) (“In considering whether [offenses merge], the court first considers whether the same conduct establishes the commission of both offenses.”).

       (Punctuation omitted.) Hunt v. State, 336 Ga.App. 821, 825 (1) (b) (783 SE2d 456) (2016). See also Taylor v. State, 292 Ga. App. 846, 848-849 (2) (666 SE2d 85) (2008), overruled on other grounds, Adams v. State, 299 Ga. App. 39, 41-42 (1) (681 SE2d 725) (2009). Compare with Copeland v. State, 160 Ga.App. 786, 789 (11) (287 SE2d 120) (1982) (“The indictments were drawn in such a fashion as to authorize convictions (if supported by the evidence) for incest during one period of time, statutory rape on another occasion during that same period, and another count of statutory rape on a later date. The evidence did support a finding that at least two acts of intercourse occurred during the period covered by the incest charge and one of the statutory rape charges, and that another act of intercourse occurred on the date alleged in the second statutory rape count. It is clear, therefore, that the trial court committed no error in sentencing appellant on all three offenses.”) (emphasis supplied).

       See Hunt, 336 Ga. App. at 825 (holding insufficient to result in separate sentences averments contained in identical counts stating that the defendant “committ[ed] one of these crimes against K. B. within a certain range of dates, the exact date being unknown to the Grand Jury, with the only difference between the two counts in each pair being that the second count specified that the second occurrence of the same crime occurred on an occasion different or on a different date than the first occurrence”) (punctuation omitted).

       128 Ga. App. 657 (1) (197 SE2d 423) (1973).

       Id. at 657 (1).

       Id.

       See Copeland, 160 Ga. App. at 789 (11).


text:
    A16A0271.
    CAPITOL MATERIALS, INC. v. JLB BUCKHEAD, LLC.
    (789 SE2d 803)
   DOYLE, Chief Judge.

This appeal arises from the trial court’s grant of summary judgment in favor of property owner, JLB Buckhead, LLC. The trial court found that Appellant Capitol Materials, Inc. (“Capitol”), failed to timely file its Notice to Contractor in order to preserve its right to enforce a materialman’s lien against JLB Buckhead’s property and that the tardy filing was not excused by errors contained in JLB Buckhead’s Notice of Commencement. Because the Notice of Commencement did not substantially comply with OCGA § 44-14-361.5 (b), Capitol’s failure to file its Notice to Contractor within the prescribed time was excused under OCGA § 44-14-361.5 (d) and Consolidated Pipe & Supply Co. v. Genoa Constr. Svcs. Thus, we reverse.

“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

Viewed in this light, the record shows that JLB Buckhead planned to construct a 375-unit multi-family residence on 6.53 acres in the Buckhead neighborhood of Fulton County, which tract previously consisted of four separate parcels — 211, 225, and 235 Pharr Road and 18 Peachtree Avenue. JLB Builders, LLC, was the contractor for the project. On September 13,2011, JLB Builders filed a Notice of Commencement with the Clerk of the Superior Court of Fulton County The Notice of Commencement stated that the owner of the property was JLB Buckhead at 909 Lake Carolyn Parkway, Suite 960, Irving, Texas 75039. The Notice of Commencement listed JLB Builders as the contractor and provided the address therefor, and it listed the property as the land “located at 211 Pharr Road, Atlanta[,] Georgia, more particularly described as follows: See [attached legal description]” (“the Pharr Road property”). Prior to this time, however, the City of Atlanta had assigned to the combined parcel the address of 235 Pharr Road. The Notice of Commencement listed a commencement date of August 8, 2011, and listed as the project “improvements” consisting of “375-unit multi-family residences, 585 spaces of associated structured parking on 6.53 acres.” The improvement was known in various documents by different names, including “Buck-head Village/Pharr Road,” and “Village at Buckhead.”

Beginning in April 2012, Capitol provided drywall to Nationwide Drywall, Inc., a subcontractor for JLB Builders, and Nationwide in turn delivered the drywall to the Pharr Road property. Capitol filed a Notice to Contractor on October 11,2012, and Capitol admitted that this was not within the statutory 30-day period following the day it first supplied materials to the Pharr Road property as required pursuant to OCGA § 44-14-361.1 (a) (4).

Nationwide subsequently failed to pay Capitol for the materials, and on February 13, 2013, Nationwide declared bankruptcy Capitol thereafter sought to bring an in rem action against the construction project for the $443,635.49 principal amount of the materials. On February 26, 2013, Capitol filed its claim of lien against the project in the principal amount, and in its complaint, Capitol contended that the last day it provided materials for the project was February 8, 2013.

In response to Capitol’s in rem action against the Pharr Road property, JLB Buckhead moved for summary judgment, arguing that Capitol failed to timely file its Notice to Contractor within the 30-day period required by law, and thus, Capitol could not enforce its lien. Capitol, on the other hand, maintained that JLB Buckhead’s Notice of Commencement was defective, and therefore, Capitol was excused from filing its Notice to Contractor. JLB Buckhead argued that none of the errors or omissions in the Notice of Commencement was an essential element of the notice, and therefore, Capitol’s tardy filing was not excused nor could it enforce its lien. Based on the record and brief, the trial court granted JLB Buckhead’s motion for summary judgment without explanation.

On appeal, Capitol argues that the trial court erred by granting summary judgment to JLB Buckhead because the Notice of Commencement contained “fatal defects” or, alternatively, genuine issues of material fact exist as to whether the Notice of Commencement contained “fatal defects” such that its tardy filing of its Notice to Contractor was excused.

Pursuant to OCGA § 44-14-361.5 (b):

Not later than 15 days after the contractor physically commences work on the property, a notice of commencement shall be filed by the owner, the agent of the owner, or by the contractor with the clerk of the superior court in the county in which the project is located. A copy of the notice of commencement shall be posted on the project site. The notice of commencement shall include: (1) The name, address, and telephone number of the contractor; (2) The name and location of the project being constructed and the legal description of the property upon which the improvements are being made; (3) The name and address of the true owner of the property; (4) The name and address of the person other than the owner at whose instance the improvements are being made, if not the true owner of the property; (5) The name and the address of the surety for the performance and payment bonds, if any; and (6) The name and address of the construction lender, if any. . . .

It is undisputed that Capitol did not have privity of contract with JLB Buckhead. Pursuant to OCGA § 44-14-361.5 (a):

To make good the liens [applicable here],[] any person having a right to a lien who does not have privity of contract with the contractor and is providing labor, services, or materials for the improvement of property shall, within 30 days from the filing of the notice of commencement or 30 days following the first delivery of labor, services, or materials to the property, whichever is later, give a written notice to contractor as set out in subsection (c) of this Code section to the owner or the agent of the owner and to the contractor for a project on which there has been filed with the clerk of the superior court a notice of commencement setting forth therein the information required in subsection (b) of this Code section.

Accordingly, in order for Capitol to assert a lien for the drywall it provided to the Pharr Road property, it was necessary for Capitol to file a Notice to Contractor within 30 days of its first delivery of goods, which it undisputedly failed to do. Capitol asserts that under OCGA § 44-14-361.5(d) and Consolidated Pipe & Supply Co., it was absolved of its tardy filing because the notice of commencement contained a “fatal defect” rendering the requirement to file its notice to contractor unnecessary Capital contends that the Notice of Commencement did not contain (1) the project name; (2) the correct project address; (3) the correct location of the project; (4) the name of the person other than the owner at whose instance the improvements were being made, which Capitol contends is the Atlanta Development Authority (“ADA”); or (5) the name and address of the construction lender, which constitute fatal defects or present questions of fact as to whether they are fatal defects.

To determine whether these are “fatal defects,” this Court must determine whether JLB Buckhead substantially complied with the statutory requirements.

As stated by our Supreme Court, substantial compliance does not require that the language should be exactly as prescribed by the statute but that all the essential requirements of the form be prescribed. To this end, in General Elec. Co. v. North Point Ministries, Inc., [] this Court held that the name of the true owner and a legal description of the subject property were essential requirements of a Notice of Commencement such that their omissions triggered OCGA § 44-14-361.5 (d), because the failure to include that information vitiated one of the primary purposes of the statute — namely, to ensure that a lien claimant could identify the property owner and receive compensation for contributions to a given project.

In determining whether a portion of the statute is an essential element, we construe the lien statutes in favor of the landowner and against the materialman.

Pretermitting whether the lack of certain other information contained in the Notice of Commencement or any potentially incorrect information constitute fatal defects, JLB Buckhead failed to identify or provide contact information for its construction lender in its Notice of Commencement, rendering it fatally defective under OCGA § 44-14-361.5 (d). JLB Buckhead contends that because Wells Fargo is listed in the legal description, it substantially complied with the statute. The legal description, however, does not identify Wells Fargo as the construction lender and does not provide contact information for Wells Fargo as required by OCGA § 44-14-361.5 (b) (6). This is not a mere “variation[ ] in the mode of expression.”

And while failure to include this information may not have prevented the timely filing of the Notice to Contractor by Capitol, or prevented Capitol from including in its Notice to Contractor the information required of it by OCGA § 44-14-361.5 (c), we decline to hold that the wholesale failure to include the construction lender’s identity or contact information in the Notice of Commencement constitutes substantial compliance with the statute. Accordingly, the trial court erred by granting summary judgment to JLB Buck-head.

Judgment reversed. Andrews,

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

Decided June 16, 2016

Reconsideration denied July 11, 2016

Rachelson & White, Ira L. Rachelson, Benjamin M. Rachelson, for appellant.

Smith, Gambrell & Russell, Scott D. Cabalan, Darren G. Rowles, for appellee.

       279 Ga. App. 894, 896 (633 SE2d 59) (2006).

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See OCGA § 44-14-361 (a) (6).

       “The failure to file a notice of commencement shall render the provisions of this Code section inapplicable.”

       279 Ga. App. at 896.

       289 Ga. App. 382 (657 SE2d 297) (2008).

       (Punctuation and footnotes omitted.) Fidelity & Deposit Co. v. LaFarge Bldg. Materials, 312 Ga. App. 821, 825 (720 SE2d 288) (2011) (holding that omission of contractor’s telephone number was not a fatal defect).

       See id. at 826.

       See Gen. Elec. Co., 289 Ga. App. at 385, quoting Sierra Craft, Inc. v. T. D. Farrell Constr., 282 Ga. App. 377, 384 (3) (638 SE2d 815) (2006).

       Compare with Fidelity & Deposit Co., 312 Ga. App. at 825; Gen. Elec. Co., 289 Ga. App. at 385-386. See also Harris Ventures v. Mallory & Evans, 291 Ga. App. 843, 845 (1) (662 SE2d 874) (2008) (holding that the failure to comply with the basic requirements of OCGA § 44-14-361.5 (b) relieved the appellant of its obligation to provide a Notice to Contractor).


author: McFADDEN, Judge.

text:
    A13A1662.
    BOSTICK v. CMM PROPERTIES, INC. et al.
    (789 SE2d 211)
   McFADDEN, Judge.

In Bostick v. CMM Properties, 297 Ga. 55 (772 SE2d 671) (2015), the Supreme Court of Georgia reversed Division 2 of our opinion in Bostick v. CMM Properties, 327 Ga. App. 137 (755 SE2d 895) (2014), in which we had affirmed the trial court’s grant of summary judgment to appellees CMM Properties, Inc., and others (collectively “the CMM parties”) on the ground of res judicata. In reversing, the Supreme Court found that there was not sufficient identity of the parties or their privies to permit application of res judicata. 297 Ga. at 55, 59. Accordingly, we vacate Division 2 of our prior opinion, adopt the Supreme Court’s judgment as our own, and hold that the trial court erred in granting summary judgment on the ground of res judicata.

However, the trial court also granted summary judgment to the CMM parties on the alternative ground that a liquidated damages clause which appellant James Bostick sought to enforce was an unenforceable penalty We did not review that alternative ground in our prior opinion, but we now consider it and conclude that the trial court correctly found that the liquidated damages clause was an unenforceable penalty. Accordingly, we affirm the trial court’s grant of summary judgment on that basis. See Duke Galish, LLC v. Manton, 291 Ga. App. 827, 828 (662 SE2d 880) (2008) (grant of summary judgment must be affirmed if right for any reason, whether stated or unstated).

This appeal arises from a third-party complaint filed by Bostick against the CMM parties, seeking to enforce a liquidated damages provision set forth in a lease. Paragraph 22 of the lease provides that upon the occurrence of a default by the lessee, including the nonpayment of rent, the lessor may pursue any of several remedies, separately or concurrently, as set forth in sections (a) through (e) of the paragraph. Sections (a) and (b) provide that the lessor may terminate the lease and, upon such termination, shall be entitled to recover from the lessee liquidated damages in an amount equal to all rent which was then due and which would otherwise have become due throughout the remaining term of the lease as if it had not been terminated. Section (c) provides that the lessor may give the lessee ten days notice to cure the default, after which the entire amount of rent due under the remainder of the lease term shall become immediately due and payable without further notice. Section (d) allows the lessor to terminate the lease, enter the property and re-let it for any term the lessor deems proper, with the lessee being liable for any deficiency. And section (e) provides that the lessor may

declare the entire amount of... [r]ent and other sums which in [l]essor’s reasonable determination would be due and payable during the remainder of the [l]ease [t]erm, discounted to present value by using a reasonable discount rate selected by [l]essor, to be due and payable immediately. Upon such acceleration of such amounts, [l]essee agrees to pay the same at once, . . . provided, however, that such payment shall not constitute a penalty or forfeiture but shall constitute liquidated damages for [l]essee’s failure to comply with the terms and provisions of this [l]ease. . . . Upon making such payment, [l]essee shall receive from [l]essor all rents received by [l]essor from other [l]essees renting the [p]remises during the remainder of the [l]ease [t]erm, provided that the monies to which [l]essee shall so become entitled shall in no event exceed the entire amount actually paid by [l]essee to [l]essor pursuant to the preceding sentence, less all of [l]essor’s costs and expenses . . . incurred in connection with or in any way related to the reletting of the [p]remises.

On appeal, Bostick argues that the trial court failed to consider all of paragraph 22 of the lease and that if it had properly considered the entire paragraph, specifically section (e), it would have found that the paragraph constitutes a valid liquidated damages provision. However, we do not accept Bostick’s premise that the trial court failed to consider all of paragraph 22 since the trial court’s order, although it indicates that the initial remedy pursued was under section (a) of the lease, further indicates that the court made its legal conclusions as to the remedy provisions set forth therein after a review of the entire lease. Moreover, contrary to Bostick’s argument, it is apparent from a review of paragraph 22 in its entirety, including section (e), that it does not constitute a valid liquidated damages provision.

[W]hile a tenant generally is not responsible for rent accruing after the landlord resumes possession, the parties may contract otherwise, provided that the lease agreement contains an explicit and detailed provision which clearly and unequivocally expresses the parties’ intention to hold the tenant responsible for after-accrued rent. Such accelerated rent provisions are enforceable as valid liquidated damages clauses if (1) the injury caused by breach of the lease is difficult, or impossible to estimate accurately; (2) the parties intend to provide for damages rather than a penalty; and (3) the stipulated sum is a reasonable pre-estimate of the landlord’s probable loss. If these requirements are not met, then the accelerated rent provision fails as a penalty Whether an accelerated rent provision is enforceable is a question of law for the court.

Nobles v. Jiffy Market Food Store Corp., 260 Ga. App. 18, 20 (1) (579 SE2d 63) (2003) (citations and punctuation omitted).

In this case, even if we assume that the first two requirements for a valid liquidated damages provision were met by paragraph 22, the third requirement that it be a reasonable pre-estimate was not met. Indeed, section (e) of the paragraph, upon which Bostick relies, is materially indistinguishable from the accelerated rent provision at issue in Peterson v. P. C. Towers, 206 Ga. App. 591 (426 SE2d 243) (1992). We found that provision, which is set out below, to be an unenforceable penalty since it did not provide a reasonable estimate of actual damages. As stated in Peterson:

To qualify as enforceable liquidated damages, the sums sought as accelerated rent under the lease must be a reasonable estimate of actual damages. Under the lease provisions, the landlord was entitled to terminate the lease, evict the tenant, and then collect in advance rent reduced to present value which would have been payable to the end of the lease term. These provisions give the landlord the benefit of both present possession of the premises, and the present value of all future rent. Reduction of the accelerated rent to present value is a factor tending to establish that the accelerated rent sum is a reasonable estimate of probable loss. However, both possession of the premises and a present lump sum award of future rent without any calculation of damages based on the future rental value of the premises, and the likelihood of reletting, provides [the landlord] with payment potentially bearing no reasonable relation to actual damages. Actual damages at the time of the breach may be stated as the difference between the rent which would have been payable by the tenant under the lease, and the market value of the premises for the remainder of the original lease term. Accordingly, in order to make a reasonable estimate of the difference between the rent due in the lease and the actual rental value of the premises for the remaining term, this calculation must be conditioned on an assessment of future market conditions for the premises to account for future rental value, and the probability of reletting the premises for all or part of the remaining term. The present lease fails to account for these factors in determining the sum sought as liquidated damages.

Id. at 593-594 (3) (citations omitted).

Likewise, in this case, paragraph 22 fails to account for the required factors in determining the sum sought as liquidated damages. The paragraph, when considered in its entirety, allowed the lessor to take possession of the premises and obtain a lump sum award of future rent without providing for an assessment of future market conditions for the premises to account for future rental value and the probability of reletting the premises. Because there was no reasonable estimate of the difference between the rent due under the lease and the actual rental value of the premises for the remaining term, “the acceleration provision was in the nature of an unenforceable penalty, rather than a [valid] provision for liquidated damages.” Peterson, 206 Ga. App. at 594 (3) (citation omitted). Accordingly, the trial court did not err in granting summary judgment on this ground.

Decided July 11, 2016.

Anderson, Walker & Reichert, Jonathan A. Alderman, Donyale N. Leslie, for appellant.

Spurlin & McCorvey, John C. Spurlin, for appellees.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

       A more detailed statement of facts can be found in both our prior opinion and the opinion of the Supreme Court cited above.

       The provision at issue in Peterson provided:
      “Landlord may, at its option, declare the entire amount of the rent which would become due and payable during the remainder of the term of this lease to be due and payable immediately upon ten days written notice to Tenant of Landlord’s intent to accelerate said payments for the unexpired term; and with reduction to present cash value of said payments based upon a discount rate of twelve percent (12%) as the present value factor, in which event Tenant agrees to pay the same at once, together with all rents theretofore due, at the office of the Landlord, Atlanta, Georgia, provided, however, that such payments shall not constitute a penalty or forfeiture or liquidated damages, but shall merely constitute payment in advance of the rent for the remainder of the said term. Upon making such payment, Tenant shall receive from Landlord all rents received by Landlord from other tenants on account of said Premises during the term of this Lease, provided, however, that the monies to which the Tenant shall so become entitled shall in no event exceed the entire amount payable by Tenant to Landlord under the preceding sentence of this subparagraph.”

        Peterson, 206 Ga.App. at 592 (2).


author: Ray, Judge.

text:
    A16A0386.
    JOHNSON et al. v. THOMAS.
    (788 SE2d 124)
   Ray, Judge.

This appeal involves a dispute over church property between the national Christian Methodist Episcopal Church (“CME”) and the trustees, pastor, and former members of Bethel Christian Methodist Episcopal Church (jointly hereinafter referred to as “Bethel Church”), a local subordinate church of CME that has sought to disaffiliate from CME and has retained control over the church property. At issue is whether the church property is impressed with a trust in favor of CME. After an evidentiary final hearing, the trial court ruled that, under the terms of the Book of Discipline of the Christian Methodist Episcopal Church (“Book of Discipline”), the property and church building claimed by Bethel Church was held in trust on behalf of CME. Bethel Church appeals from that order, arguing that the trial court did not properly consider the language of the deed that transferred the church property to Bethel Church in relation to other specific facts. We affirm the trial court.

In its petition, CME asserts that it is a hierarchical “religious denomination^ which] is organized and functions solely as a connec-tional church with subordinate governing districts and location church[es,]” and it alleged that for over 100 years, Bethel Church has been “a subordinated, connectional member of the national CME church,” which is “subject to the mode of church government set forth in the CME Book of Discipline.”

Evidence presented at the final hearing shows that Bethel Church has been affiliated with CME since at least the 1960s; abided by CME policies and customs; accepted the pastorate and literature of CME ministers; paid conference assessments and dues to CME; and participated as a subordinate member of CME at annual and quarterly conferences.

On March 13, 1996, a quitclaim deed was executed by C. C. Ranch, Inc., a Florida corporation, which conveyed the property upon which Bethel Church and its cemetery resides to “Beulah Johnson, Solomon McCrary, Marion Shannon, Lucille Ezell, and Thomas Howard as the Trustees of Bethel Church and to their successors in office (Bethel Church being an unincorporated religious association) of Crawford County, Georgia, their successors, heirs, executors, administrators!)] and assigns[.]” Cynthia Howard, Bethel Church’s former secretary, testified that Bethel Church existed on that property prior to the execution of the 1996 deed and that the congregation had sought to acquire a deed to the property because they needed it to secure financing from a local bank to repair the church building. Howard explained that the Bethel Church congregation had requested that the lawyers drafting the deed use language indicating that the property would remain with Bethel Church and that they did not want the church property “to go back into the hands of the CME organization because . . . we were the purchasers of the land [and CME] didn’t give us money towards purchasing it.’’After the deed was executed, Bethel Church then secured bank financing to construct an attached fellowship hall, paint the church, and to purchase additional pews and furniture. Oscar Hall, a former minister of Bethel Church, testified that the 1996 deed was drafted because the presiding elder of CME had asked the church to do so upon discovering that no deed to the property existed. After the execution of the 1996 deed, Bethel Church continued to operate as a member church of the national CME.

In January 2011, the majority of the Bethel Church congregation voted to adopt a resolution severing Bethel Church’s affiliation with the national CME. The resolution was to be retroactive to January 1, 2011. J. W. Vincent Jefferson, a member of Bethel Church, explained that the congregation voted to do so because its congregation, consisting of only 30 members, simply could not afford to pay the biannual CME assessment fees and that the congregation felt like CME “didn’t know who we were, [and] have never done anything for the church.” He further noted that the pastors provided by CME for Bethel Church were not adequate and, despite this, the congregation still had to pay each pastor’s salary Jefferson explained that the Bethel Church building was “deteriorating” and that they did not have the funds to repair the building, meet the church’s financial obligations and pay CME assessments. Because of these issues, Jefferson believed that Bethel Church would no longer exist if it had remained a member of CME. Subsequent to the resolution terminating their affiliation with CME, Bethel Church passed a separate resolution changing its name to Bethel Independent Church of Crawford County

On January 9, 2013, CME filed its petition for declaratory judgment and injunctive relief, alleging that pursuant to the Book of Discipline that the Bethel Church property was held in trust for CME, which is “the legal and equitable owner” of the property The petition alleged that, regardless of the names of the grantees on the 1996 deed conveying the property to Bethel Church, the Bethel Church members were wrongfully exercising control over the property because it was held in trust for CME by the church members as trustees according to CME’s Book of Discipline.

After the evidentiary hearing, the trial court ruled in favor of CME. In its order, the trial court noted that it relied upon the “neutral principles of law” that govern the dispute, including the CME Book of Discipline, to determine that local churches, such as Bethel Church, hold title to any property, real or personal, in an implied trust for the national CME. As a result, the trial court held that Bethel Church had only “ ‘permissive use’ of the property, and its trustees have continually held the property in trust for the benefit of the National CME.” The trial court then held that the members of Bethel Church were banned from, inter alia, interfering with CME’s use of the Bethel Church property, threatening or harassing CME church members, or using the properties or money of CME in violation of its rules and disciplines.

On appeal, Bethel Church argues that the trial court’s judgment was in error because it did not consider the fact that the language of the 1996 deed conveyed the property to Bethel Church trustees only and sought to exclude the national CME.

We certainly are mindful that a civil court is not allowed to intervene in doctrinal disputes within a church. However, where a dispute regarding church property can be resolved without regard to doctrinal disputes, a civil court is authorized to render a decision that enforces the legal rights of the parties. Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Ga., 305 Ga. App. 87, 88 (699 SE2d 45) (2010). A hierarchical church, such as CME, is “organized as a body with other churches having similar faith and doctrine with a common ruling convocation or ecclesiastical head.” (Punctuation and footnote omitted.) Id. When resolving property disputes between a national hierarchical church and a local church,

we must use neutral principles of law to determine whether the local church or parent church has the right to control local property. Neutral principles of law include state statutes, corporate charters, relevant deeds, and the organizational constitutions and bylaws of the denomination.

(Punctuation and footnotes omitted.) Id.

We review all of these materials, keeping in mind that the outcome of these church property disputes usually turns on the specific facts presented in the record, that the neutral principle factors are interrelated, and that our ultimate goal is to determine “the intentions of the parties” at the local and national level[s] regarding beneficial ownership of the property at issue as expressed before the dispute erupted in a legally cognizable form.

(Citations and punctuation omitted.) Presbytery of Greater Atlanta v. Timberridge Presbyterian Church, 290 Ga. 272, 276-277 (2) (719 SE2d 446) (2011). “A trust in favor of the [national] church can be created by the deed on the property, can be implied under state statutes, or can be required by the constitution of the [national] church.” (Citation omitted.) Kemp v. Neal, 288 Ga. 324, 326 (2) (704 SE2d 175) (2010) (per curiam).

Because there is no dispute that CME is hierarchical, we must apply the neutral principles of law applicable to this case, which include the 1996 deed conveying the property to Bethel Church and the governing church documents of CME, including the Book of Discipline. A thorough review of these records and documents leads us to conclude that the trial court correctly held that the Bethel Church property was held in trust for CME.

1. Church Governing Documents. The CME Church was organized in 1870. The CME is governed by the Book of Discipline “which prescribes the mode of church government applicable to all the subordinate local churches.” The Book of Discipline is revised every four years. Since it is uncontroverted that Bethel Church was a connectional member of CME since at least the 1960s until it sought to end its affiliation with CME in 2011, there is no question that the trustees held the Bethel Church property subject to the Book of Discipline. Indeed, at the time of the 1996 deed conveying the Bethel Church property to the trustees of Bethel Church, Bethel Church was still holding itself out as a member of CME. In support of its argument that the Book of Discipline mandates that local churches hold their properties in trust for the parent CME church, CME points to ¶ 602 of the Book of Discipline captioned “All Titles in Trust.” Paragraph 602 provides:

The [CME] is organized and operates as a Connectional Structure. Titles to all properties held at General, Episcopal District, Annual or District Conference levels, local churches, or an agency or institution of the church shall be held in trust for the [CME] Church and subject to the provisions of its Discipline. Titles not actually held by the General Conference of the [CME] Church, but instead are held by local churches, Districts, Annual Conferences, Episcopal Districts, agencies or organizations of the denomination or unincorporated bodies of the denomination are held in trust by Boards of Trustee established for the purpose of holding or administering properties.

(Emphasis supplied.)

The Book of Discipline at ¶ 602.2 § 5 additionally provides that when a deed, such as the 1996 deed conveying the Bethel Church property, does not contain a trust clause in favor of CME,

the absence of a trust clause . . . shall in no way exclude a local church . . . from or relieve it of its connectional responsibilities to the [CME]. Nor shall it absolve a local congregation or church agency or Board of Trustees of its responsibility and accountability to the [CME]; provided that the intent and desires of the congregations or Boards of Trustees . . . are shown by any or all of the following indications: (a) The conveyance of the property to the trustees of a local church or agency of the [CME]; (b) The use of the name, customs and polity of the [CME] in such a way as to be thus known to the community as a part of the [CME][;] (c) The acceptance of the pastorate of ordained ministers appointed by the Presiding Bishop, or use of the tax exempt privileges of the [CME][; and] (d) Title to all properties of the local church . . . shall be held subject to the provisions of the Discipline, whether title to the same is taken in the name of the local church trustees, Episcopal District trustees, Departments, agencies or in the name of a corporation organized for the purpose, or otherwise.

(Emphasis supplied.)

The evidence presented at the final hearing shows that, despite the testimony that Bethel Church sought to draft the 1996 deed in such a manner as to prohibit CME from retaining ownership of the property, Bethel Church demonstrated its intent to be bound by the Book of Discipline and to be a participating member of CME through at least three of the above enumerated indications in ¶ 602.2 § 5. Accordingly, we find that the terms of the CME Book of Discipline weigh in favor of a finding that the property was held in trust for CME. See Holiness Baptist Assn. v. Barber, 274 Ga. 357, 357-358 (552 SE2d 90) (2001) (church discipline provision that Association “shall hold all church property” implies a trust for the benefit of the Association) (punctuation omitted); Crumbley v. Solomon, 243 Ga. 343, 343-346 (254 SE2d 330) (1979) (even though local church, by majority vote of its members, attempted to withdraw from the parent church, control of the church property properly belonged with parent church under the requirements of the church discipline, which implied a trust of the real property in favor of the parent church). See also OCGA §§ 14-5-46; 14-5-47.

2. Deed. The parcel of real estate in dispute has been used by Bethel Church operating as a member of CME for several decades before the 1996 deed that memorialized the transfer. Whether the purpose of the 1996 deed was to secure financing for repairs or to comply with the request of a CME Presiding Elder, the deed conveyed the property upon which Bethel Church and its cemetery resides to “Beulah Johnson, Solomon McCrary, Marion Shannon, Lucille Ezell, and Thomas Howard as the Trustees of Bethel Church and to their successors in office (Bethel Church being an unincorporated religious association) of Crawford County, Georgia, their successors, heirs, executors, administrators[,] and assigns[.]” Bethel Church points to evidence that its congregation sought to draft the terms of the deed to exclude CME and its belief that it was a “de facto” member of CME that did not benefit from its relationship with CME as factors that should be weighed in its favor. However, at the time of the 1996 deed, Bethel Church was bound by the Book of Discipline which held that all deeds and properties are to be held in trust for CME. Further, even though Bethel Church was dissatisfied with its relationship with CME, it continued to operate as a member for several years after the execution of the 1996 deed by paying assessments to CME, attending annual and quarterly CME conferences as well as accepting pastors appointed by CME. It was not until the Bethel Church congregation voted to adopt a resolution denouncing its affiliation with CME in 2011 that it sought to disassociate itself from CME.

We are unpersuaded by Bethel Church’s argument that the terms of the 1996 deed circumvented the applicable rules of the Book of Discipline regarding the ownership of church property at the time the deed was executed.

A local church, if it desires to remain independent of the influence of a parent church body, must maintain this independence in the important aspects of its operation, — e.g., polity, name, finances. It cannot, as here, enter a binding relationship with a parent church which has provisions of implied trust in its [governing documents], yet deny the existence of such relationship.

Carnes v. Smith, 236 Ga. 30, 39 (1) (222 SE2d 322) (1976). See also Kemp, supra at 329 (2) (“When a local church has a relationship with a national church and accepts the benefits afforded to it as a result of that relationship, the local church cannot deny the existence of a trust for the national church as recited in the [governing documents] of the national church”) (citations and footnote omitted).

In this case, it is undisputed that CME is a hierarchical church, that Bethel Church was an active member of CME from at least the 1960s until 2011, and that Bethel Church was subject to CME’s Book of Discipline. The Book of Discipline provides that Bethel Church, as a local church, shall hold its properties in trust for CME. See Barber, supra. This requirement is “irrespective of [Bethel] Church’s continuing membership in” CME. Id.

Decided June 23, 2016

Reconsideration denied July 12, 2016

Rodney E. Davis, for appellants.

Edwards & Youmas, Brenda C. Youmas, for appellee.

Judgment affirmed.

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

       The named plaintiff is Jane Thomas, who filed the instant suit in her capacity as the presiding elder of the Sixth Episcopal District of Georgia of the Christian Methodist Episcopal Church. Thomas filed the petition on behalf of CME for declaratory judgment and injunctive relief, alleging that pursuant to the Book of Discipline the Bethel Church property was held in trust for CME, which is “the legal and equitable owner” of the property.

       Title is in dispute as to the parcel of real estate located at 2475 Pope Road in Crawford County. The dispute also involves the ownership and possession of personal property of Bethel Church.

       This is the second appearance of this case before this Court. In Thomas v. Johnson, 329 Ga. App. 601 (765 SE2d 748) (2014), this Court vacated the trial court’s judgment in favor of the defendants on the grounds that the trial court deprived CME of its right to due process because it failed to allow CME to present witnesses and evidence to support its claims at the final hearing. Upon remand, this Court instructed the trial court to conduct a proper evidentiary hearing. This appeal ensued from the trial court’s final order issued after the conclusion of the subsequent evidentiary hearing. We note that there was a different presiding judge in this case upon its remand for an evidentiary hearing.

       Bethel Church does not dispute that CME is a hierarchical church.

       At the final hearing, Bethel argued that it had been a member of CME only since the 1950s or 1960s.

       Our appellate record only contains a few select pages from the 1994 and 2010 versions of the Book of Discipline.

       The final hearing transcript only contains the2010 version of ¶ 602 and a fragment of the 1994 version of ¶ 602 of the Book of Discipline. The trial court’s final order acknowledges the missing portion of the 1994 version, but notes that it appears that it is “essentially the same” as the 2010 version. Neither party disputes this finding on appeal.