author: Barnes, Presiding Judge.

text:
    A17A1663.
    PARHAM v. THE STATE.
    (805 SE2d 264)
   Barnes, Presiding Judge.

A jury found Charles Frank Parham guilty of two counts of theft by deception, and the trial court sentenced him as a recidivist under OCGA § 17-10-7 (a) and (c) based on his prior felony convictions. The trial court thereafter denied Parham’s motion for new trial, as amended. On appeal, Parham argues that the trial court erred in sentencing him under the general recidivist statute, OCGA § 17-10-7 (a) and (c), because only the more specific recidivist provision for theft-by-deception convictions, OCGA § 16-8-12 (a) (1) (D), applied in this case. Parham also argues that his trial counsel rendered ineffective assistance by failing to object to the trial court sentencing him under the general recidivist statute. For the reasons discussed more fully below, we conclude that the trial court was authorized to sentence Parham under the general recidivist statute and therefore affirm.

The record reflects that Parham was indicted on two counts of theft by deception in violation of OCGA § 16-8-3 (a). The indictment alleged that Parham had two prior misdemeanor convictions for theft by deception, such that Parham was eligible for felony punishment under the specific recidivist provision applicable to certain theft offenses, OCGA § 16-8-12 (a) (1) (D). Before trial, the State also served Parham with notice of its intent to seek to punish him as a habitual felon under the general recidivist statute, OCGA § 17-10-7 (a) and (c), based on his prior convictions for several felony offenses.

Parham proceeded to trial and was found guilty on both counts of theft by deception. At the sentencing hearing, the State introduced evidence of Parham’s 27 prior convictions for various offenses, including the two prior misdemeanor convictions for theft by deception referenced in the indictment, five prior felony convictions for theft by shoplifting, and a prior felony conviction for financial transaction card fraud. The trial court elected to treat Parham’s current theft-by-deception convictions as felonies under OCGA § 16-8-12 (a) (1) (D) in light of his two prior misdemeanor convictions for that offense. Additionally, pursuant to OCGA § 17-10-7 (a) and (c), the trial court found that Parham was a habitual felon in light of his other multiple prior felony convictions, and the court sentenced him to a term of five years in prison on Count 1 and to a term of five years, to serve three years in prison on Count 2, with the sentences to run consecutively, for a total term of ten years, with the first eight years in prison. Because he was sentenced as a habitual felon under the general recidivist provisions of OCGA § 17-10-7 (a) and (c), Parham is ineligible for parole and thus will be required to serve the full eight years in prison. See Wynn v. State, 332 Ga. App. 429, 437 (5) (773 SE2d 393) (2015).

Parham filed a motion for new trial, as amended, in which he argued that the trial court erred in sentencing him pursuant to the general recidivist statute and contended that his trial counsel rendered ineffective assistance by failing to raise such an objection during the sentencing hearing. The trial court denied Parham’s amended motion, resulting in this appeal.

1. Parham maintains that the trial court erred in sentencing him under the general recidivist statute, OCGA § 17-10-7 (a) and (c), because OCGA § 16-8-12 (a) (1) (D) is the more specific recidivist provision applicable to his theft-by-deception convictions. According to Parham, the general and specific recidivist provisions are mutually exclusive and inconsistent with one another, and the trial court thus should have sentenced him as a recidivist only under the more specific provision of OCGA § 16-8-12 (a) (1) (D), which gave the court discretion to impose a sentence of between one and five years on each count if the trial court elected to sentence him as for a felony. Consequently, Parham argues, his sentence was void and should be vacated. We are unpersuaded.

In ascertaining the meaning of statutory provisions, the fundamental rules of statutory construction require us to construe statutes according to their terms, afford words their plain and ordinary meaning, and avoid constructions that make some language meaningless or mere surplusage. See State v. Mussman, 289 Ga. 586, 588 (1) (713 SE2d 822) (2011). Language in one provision of a statute must be construed in light of the other provisions of the same statute, Fair v. State, 288 Ga. 244, 252 (2) (702 SE2d 420) (2010), and “all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” (Citation and punctuation omitted.) Goldberg v. State, 282 Ga. 542, 546 (651 SE2d 667) (2007).

Mindful of these rules of construction, we turn to the pertinent statutory framework and the arguments raised in the present appeal. OCGA §§ 16-8-2 through 16-8-9 set forth a series of theft-related criminal offenses, including theft by deception, OCGA § 16-8-3 (a). OCGA § 16-8-12 then delineates the ranges of punishment for different types of theft committed under OCGA §§ 16-8-2 through 16-8-9. OCGA § 16-8-12 (a) provides that, as a general rule, a defendant convicted of a theft offense under OCGA §§ 16-8-2 through 16-8-9 should be punished as for a misdemeanor. However, OCGA § 16-8-12 (a) (1) (D), the specific recidivist provision at issue here, states:

If the defendant has two prior convictions for a violation of Code Sections 16-8-2 through 16-8-9, upon a third conviction or subsequent conviction, such defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years and, in the discretion of the trial judge, as for a misdemeanor[.]

Georgia’s general recidivist statute is codified at OCGA § 17-10-7. Pursuant to OCGA § 17-10-7 (a), a defendant convicted of a second felony offense “shall be sentenced to the longest period of time prescribed for punishment of the second offense, although the sentencing court may probate or suspend the maximum sentence.” Wynn, 332 Ga. App. at 437 (5). Pursuant to OCGA § 17-10-7 (c), a defendant convicted of a fourth felony offense “must serve the maximum time sentenced ‘and shall not be eligible for parole until the maximum sentence has been served.’ ” Wynn, 332 Ga. App. at 437 (5), quoting OCGA § 17-10-7 (c). Significantly, OCGA § 17-10-7 (e) of the general recidivist statute provides that the statute “is supplemental to other provisions relating to recidivous offenders.”

“[A] specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” (Citation and punctuation omitted; emphasis supplied.) Williams v. State, 299 Ga. 632, 634 (791 SE2d 55) (2016). Based on the plain and unambiguous language of OCGA § 17-10-7 (e), our Supreme Court has held that “the General Assembly has expressly indicated its intent that OCGA § 17-10-7 and other recidivist sentencing provisions ... be construed harmoniously” rather than in conflict with one another whenever it is possible to do so. Goldberg, 282 Ga. at 544. See Butler v. State, 281 Ga. 310, 311-312 (637 SE2d 688) (2006). To that end, our Supreme Court has held that the general recidivist provisions of OCGA § 17-10-7 should be read as supplementing a specific recidivist provision found in another statutory sentencing scheme, so long as the specific recidivist provision does not contain language “blocking” the application of OCGA § 17-10-7. Goldberg, 282 Ga. at 544-547. See Butler, 281 Ga. at 311-312.

In Goldberg, 282 Ga. at 544-547, our Supreme Court illustrated the manner in which to harmonize the general recidivist statute with other specific recidivist provisions. The defendant in that case was convicted and sentenced for burglary, and it was his fifth felony conviction and his third for burglary Id. at 542. The specific recidivist statute for habitual burglars, OCGA § 16-7-1 (b), authorized a sentence of “imprisonment for not less than five nor more than 25 years” for a third burglary conviction and did not contain any language blocking the application of the general recidivist statute, OCGA § 17-10-7. Harmonizing those statutes, the Supreme Court held that the “specific recidivist statute [for burglary] applies when the defendant is a habitual burglar having only prior convictions for burglary, whereas the ... general recidivist statute applies when the defendant is a habitual felon with prior convictions for other crimes.” Goldberg, 282 Ga. at 547. Because the defendant’s conviction in Goldberg represented not only his third burglary conviction but his fifth felony conviction, the Supreme Court held that he was more than a habitual burglar under the specific recidivist provision of OCGA § 16-7-1 (b) and thus could be sentenced under the general recidivist statute. Goldberg, 282 Ga. at 545. The Supreme Court noted that “[a]ny other holding [would] fail[ ] to give effect to the General Assembly’s intent that subsection (e) of OCGA § 17-10-7 be given substantive consideration.” Id. at 547.

Applying the reasoning and methodology of Goldberg to the present case, we conclude that the trial court committed no error in sentencing Parham as a habitual felon under the general recidivist provisions of OCGA § 17-10-7 (a) and (c). The specific recidivist provision applicable to theft by deception and certain other theft convictions, OCGA § 16-8-12 (a) (1) (D), does not contain any language blocking the application of the general recidivist statute, and thus the general recidivist statute must be read as supplementing rather than conflicting with the specific recidivist provision in accordance with the mandate of OCGA § 17-10-7 (e). See Goldberg, 282 Ga. at 544-547; Butler, 281 Ga. at 311-312. Compare Mann v. State, 273 Ga. 366, 368-369 (1) (541 SE2d 645) (2001) (defendant properly sentenced under OCGA § 16-13-30 (d), the specific recidivist statute for certain drug offenses, rather than under the general recidivist statute, where the specific statute expressly stated that “[t]he provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence imposed for a second such offense”). When OCGA § 16-8-12 (a) (1) (D) and the general recidivist statute are harmonized, the former provision applies when a defendant is a repeat offender having only prior convictions for theft offenses under OCGA §§ 16-8-2 through 16-8-9, or when the trial court acts in its discretion to treat the current theft conviction as a misdemeanor. In contrast, the general recidivist statute applies when the trial court elects to treat the defendant’s current theft conviction as a felony, and the defendant has prior convictions for felony offenses other than those set forth in OCGA §§ 16-8-2 through 16-8-9.

In the present case, the trial court elected to treat Parham’s current theft-by-deception convictions as felonies. See OCGA § 16-8-12 (a) (1) (D). Furthermore, Parham had multiple prior convictions for felony offenses other than those found in OCGA §§ 16-8-2 through 16-8-9, including five prior felony convictions for theft by shoplifting (OCGA § 16-8-14) and a prior felony conviction for financial transaction card fraud (OCGA § 16-9-33). It follows that Parham was more than a repeat offender of theft offenses under OCGA § 16-8-12 (a) (1) (D), and thus the trial court was authorized to sentence him as a habitual felon under OCGA § 17-10-7 (a) and (c). See Goldberg, 282 Ga. at 544-547; Butler, 281 Ga. at 311-312; Kipple v. State, 329 Ga. App. 94, 95-96 (763 SE2d 752) (2017); Kennedy v. State, 302 Ga. App. 289, 290 (690 SE2d 255) (2010); Patrick v. State, 284 Ga. App. 472, 473-474 (644 SE2d 309) (2007). Compare Wester v. State, 294 Ga. App. 263, 266 (2) (668 SE2d 862) (2008) (trial court erred in sentencing defendant as a habitual felon under OCGA § 17-10-7 rather than under the specific recidivist provision for shoplifting offenses, where all of the defendant’s prior felony convictions were for shoplifting).

Parham, however, points out that OCGA § 16-8-12 contains more than one recidivist sentencing provision for theft offenses, and he emphasizes that OCGA § 16-8-12 (a) (5), which addresses recidivist punishment for telemarketing-related thefts, expressly states that the general recidivist statute should be applied to that paragraph:

(A) The provisions of paragraph (1) of this subsection notwithstanding, if the theft or unlawful activity was committed in violation of subsection (b) of Code Section 10-1-393.5 or in violation of subsection (b) of Code Section 10-1-393.6 or while engaged in telemarketing conduct in violation of Chapter 5B of Title 10, by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor; provided, however, that any person who is convicted of a second or subsequent offense under this paragraph shall be punished by imprisonment for not less than one year nor more than 20 years.
(B) Subsequent offenses committed under this paragraph, including those which may have been committed after prior felony convictions unrelated to this paragraph, shall be pun ished as provided in Code Section 17-10- 7[.]

(Emphasis supplied.) Parham contends that because the General Assembly expressly stated in OCGA § 16-8-12 (a) (5) (B) that the general recidivist statute should apply to convictions under OCGA § 16-8-12 (a) (5) (A), but did not include similar language for convictions under OCGA § 16-8-12 (a) (1) (D), the general recidivist statute should not be applied to convictions under the latter provision. We disagree.

As previously noted, OCGA § 17-10-7 (e) provides that the general recidivist statute is supplemental to other specific recidivist statutes, and our Supreme Court has construed subsection (e) to mean that the general recidivist statute should be applied in sentencing a habitual felon unless the specific recidivist provision contains language blocking its application. See Goldberg, 282 Ga. at 544-547; Butler, 281 Ga. at 311-312. Our Supreme Court has further construed OCGA § 17-10-7 (e) to mean that the general recidivist statute does not apply if a defendant’s only prior convictions were for the same offense covered by the specific recidivist statute. See Goldberg, 282 Ga. at 544-547. See also Wester, 294 Ga. App. at 266 (2). The issue, therefore, is how to construe the statutory language found in OCGA § 16-8-12 (a) (5) (B) referencing the general recidivist statute in a manner that harmonizes with OCGA § 17-10-7 (e). See Goldberg, 282 Ga. at 546-547 (statutes covering the same subject matter should be construed together and harmonized whenever possible).

Mindful of the aforementioned interpretive principles, we conclude that pursuant to OCGA § 16-8-12 (a) (5) (B), the general recidivist statute applies to subsequent convictions for telemarketing-related thefts under OCGA § 16-8-12 (a) (5) (A), even if all of the recidivist defendant’s prior convictions were also for telemarketing-related thefts. Otherwise, the language referencing the general recidivist statute in OCGA § 16-8-12 (a) (5) (B) would be merely redundant of OCGA § 17-10-7 (e) as interpreted in Goldberg and its progeny, a result that should be avoided. See Wetzel v. State, 298 Ga. 20, 28 (3) (a) (779 SE2d 263) (2015) (courts must avoid “interpreting statutes in a manner that renders any portion of them surplusage or meaningless”) (citation and punctuation omitted). Accordingly, OCGA § 16-8-12 (a) (5) (B) expands the application of the general recidivist statute to telemarketing-related offenses beyond what would otherwise be contemplated by OCGA § 17-10-7 (e); it does not block the application of the general recidivist statute or have any bearing on whether that statute applies to other provisions of OCGA § 16-8-12 addressing recidivist punishment. Parham’s argument predicated on OCGA § 16-8-12 (a) (5) (B) thus is misplaced.

Lastly, Parham contends that even if the general recidivist statute can be applied to felony theft-by-deception convictions under OCGA § 16-8-12 (a) (1) (D), he did not have the requisite number of prior felony convictions to be sentenced as a habitual felon under OCGA § 17-10-7 (c). Specifically, relying on Wester, 294 Ga. App. at 266 (2), Parham argues that his multiple prior felony convictions for theft by shoplifting could not be used for sentencing under the general recidivist statute. His argument is without merit. Wester addressed whether a defendant presently convicted and sentenced for theft by shoplifting, whose prior convictions were all for theft by shoplifting, should be sentenced under the general recidivist statute or solely under OCGA § 16-8-14 (b) (1) (C), the specific recidivist statute for theft by shoplifting. See Wester, 294 Ga. App. at 266 (2). Here, of course, Parham was presently convicted and sentenced for theft by deception, not theft by shoplifting. Thus, the specific recidivist statute for theft by shoplifting was irrelevant to Parham’s sentencing, and Wester is simply inapposite.

Decided September 8, 2017

Strickland Webster, Leigh Ann Webster, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, Amelia G. Pray, Assistant District Attorneys, for appellee.

For these combined reasons, the trial court was authorized to sentence Parham under the general recidivist statute (OCGA § 17-10-7 (a) and (c)), rather than solely under the more specific recidivist provision applicable to theft-by-deception convictions (OCGA § 16-8-12 (a) (1) (D)). Parham therefore has failed to demonstrate that his sentence should be vacated as void.

2. Parham also contends that his trial counsel rendered ineffective assistance by failing to object to the trial court sentencing him under the general recidivist statute. However, as explained supra in Division 1, Parham was properly sentenced under that statute, and the “[fjailure to make a meritless objection cannot be evidence of ineffective assistance.” (Citation and punctuation omitted.) Fults v. State, 274 Ga. 82, 87 (7) (548 SE2d 315) (2001). Consequently, Parham cannot succeed on his ineffective assistance claim. See id.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       Parham did not object at the sentencing hearing to the imposition of a recidivist sentence under OCGA § 17-10-7 (a) and (c). However, “[a] sentence is void if the court imposes punishment that the law does not allow,” and “a challenge to [a] void sentence cannot be waived by the failure to object.” (Citations and punctuation omitted.) Robbins v. State, 326 Ga. App. 812, 813 (757 SE2d 452) (2014). Because a sentence imposed under the wrong recidivist provision is void and Parham has raised a cognizable claim to that effect, we will review Parham’s claim despite his failure to object, even though we ultimately conclude, as discussed infra, that his sentence was not in fact void. See Kipple v. State, 329 Ga. App. 94, 95 (763 SE2d 752) (2014) (concluding that defendant’s claim that he was sentenced under wrong recidivist statute raised cognizable void sentence claim but ultimately determining that defendant was sentenced under proper recidivist statute); Robbins, 326 Ga. App. at 813-814 (concluding that defendant’s claim that he could not be sentenced under general recidivist statute raised cognizable void sentence claim but ultimately agreeing with trial court that sentence was not in fact void). See generally von Thomas v. State, 293 Ga. 569, 572-575 (2) (748 SE2d 446) (2013) (discussing different types of challenges to prior convictions used for recidivist sentencing that can and cannot be waived by failing to object in trial court).

       OCGA § 17-10-7 (a) provides:
      Except as otherwise provided in subsection (b) or (b.l) of this Code section, any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

       OCGA § 17-10-7 (c) provides:
      Except as otherwise provided in subsection (b) or (b.l) of this Code section and subsection (b) of Code Section 42-9-45, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

       OCGA § 16-7-1 (b) has been amended since the Goldberg decision, Ga. L. 2012, p. 899, § 3-1/HB 1176, but not in a manner that affects the analysis or the result reached in that case.

       Compare OCGA § 16-13-30 (d) (“Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to a controlled substance in Schedule I or Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he or she shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment. The provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence imposed for a second such offense; provided, however, that the remaining provisions of Code Section 17-10-7 shall apply for any subsequent offense.”); OCGA § 17-10-7 (b.l) (“Subsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a), paragraph (1) of subsection (i), or subsection (j) of Code Section 16-13-30.”).

       Parham also argues that the statutory frame work is ambiguous as to whether the general recidivist statute applies in this case and that, under the rule of lenity, the ambiguity should be construed in his favor. But, the rule of lenity applies only in circumstances where a statutory ambiguity exists and it cannot be resolved through the other traditional rules of statutory construction. See McNair v. State, 293 Ga. 282, 284 (745 SE2d 646) (2013). And, for all of the reasons previously discussed, Parham has failed to show that the statutory framework was ambiguous or that any alleged ambiguity could not be resolved through traditional statutory construction rules.


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A17A1735.
    100 LAKESIDE TRAIL TRUST et al. v. BANK OF AMERICA, N.A.
    (804 SE2d 719)
   Ellington, Presiding Judge.

In 2013, Bank of America, N.A., filed this action in the Superior Court of Fayette County against 100 Lakeside Trail Trust and Jum U. Ra’Oof (collectively, “the appellants”), seeking, inter alia, equitable reformation of a 2007 security deed based on mutual mistake. The bank alleged that the security deed mistakenly identified Ra’Oof individually as the grantor, when the actual owner of the subject property and intended grantor was the trust, which Ra’Oof served as trustee. In addition, the bank sought a declaratory judgment that the security deed remains in full force and effect and evidences a perfected, valid, enforceable, first-priority security interest in the property. The appellants asserted a counterclaim for wrongful attempted foreclosure. The parties filed cross-motions for summary judgment. After a hearing, the trial court granted the bank’s motion for summary judgment on affirmative defenses asserted by the appellants. The trial court granted the bank’s claim for equitable reformation of the security deed to identify the trust as the grantor and to correctly reflect that Ra’Oof executed the security deed in his capacity as trustee of the trust, rather than in his individual capacity The trial court also granted the bank’s motion for summary judgment on its claim for declaratory judgment and declared that the security deed has not been extinguished, as the appellants alleged. Finally, the trial court denied the appellants’ cross-motion for summary judgment.

On appeal, the appellants contend that the bank’s action is barred by the doctrine of laches and the doctrine of unclean hands and, therefore, that the trial court erred in reforming the deed. In addition, the appellants contend that the trial court erred in declaring that the security deed has not been extinguished, arguing specifically that the 2007 security deed in favor of a different lender was not assigned to the bank in a manner that makes the interest enforceable against them under the Statute of Frauds, that the evidence establishes that the bank is not a holder in due course, and that the bank wrongfully refused to accept the appellants’ tender of funds to pay off the debt secured by the subject property The appellants also contend that the evidence shows that the bank sought foreclosure in bad faith and, therefore, that the trial court erred in granting summary judgment in favor of the bank on their counterclaim for wrongful attempted foreclosure. Finding no merit in any of the appellants’ arguments on appeal, as explained below, we affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). When a plaintiff moves for summary judgment, it “has the burden of establishing the absence or non-existence of any defense raised by the defendant.” (Citation and punctuation omitted.) Vance v. FD 2011-C1 Grove Rd., 340 Ga. App. 36 (795 SE2d 747) (2016).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). The relevant facts that follow are undisputed unless otherwise noted.

In March 2003, Ra’Oof purchased 100 Lakeside Trail, a residence in Fayette County For estate planning purposes, Ra’Oof, as grantor, executed a quitclaim deed on April 19, 2005, conveying the property to “100 Lakeside Trail Trust, Jum U. Ra’Oof, as Trustee.” In 2007, he refinanced the debt secured by the property On November 16, 2007, he executed a promissory note to the new lender, Countrywide Bank, FSB, and also executed a security deed to secure the debt. His signature line on both documents identified him as “Jum U. Ra’Oof-Borrower” and made no reference to his capacity as trustee. Ra’Oof deposed, however, that he knew that the trust owned the property at that time and that his intention in executing the documents was to do so in his capacity as the trustee. After this transaction, the bank acquired Countrywide and its assets, including its interest in the 2007 security deed and promissory note at issue in this case.

Ra’Oof deposed that he stopped making payments on the promissory note in 2010, based on employees of the bank telling him that, in order to get a loan modification as he desired, he had to be three months behind on his payments. The bank did not approve the loan modification and soon thereafter published a notice of foreclosure. The appellants resisted foreclosure by initiating litigation that unsuccessfully challenged the bank’s standing. This action followed in 2013.

On October 5,2015, while this case was pending in the trial court, Ra’Oofrequested a payoff letter from the bank’s loan servicer, Seterus, Inc. The same day, Seterus faxed a payoff statement to Ra’Oof’s attorney. The letter gave instructions for tendering the payoff amount due as of October 9, 2015, calculated as $607,563.67, and stated that the payoff statement would expire on that date. The letter gave two options under the heading “Payment Instructions”: one labeled “Wiring Instructions,” and one labeled “Overnight Address.” The letter stated, “If you do not pay prior to [October 9, 2015], please request an updated payoff prior to sending any funds.” The letter also stated, “Funds received after October 09, 2015 will require an additional $66.89 interest per day.” Ra’Oof did not tender payment before the payoff statement expired.

On December 18, 2015, Ra’Oof’s attorney sent a letter to Seterus, stating that Ra’Oof had authorized her to accept Seterus’s payoff demand and tender full payment due in regard to the promissory note on his behalf. The attorney’s letter stated:

Your correspondence indicates that the tender must be made at your location in Roswell. Please have a representative of your company available to make the exchange. We will be making full presentment of the certified funds in person at your offices located at 14523 S.W. Millikan Way, Suite 200 Beaverton, OR 97005 on or after December 18, 2015. Please understand that under the contractual agreement, and in accordance with Georgia law, you must obtain the funds by closing the account out and exchanging the original Note marked “Paid In Full” for the funds in person. Due to the above listed discrepancies, we will not accept a separate receipt as evidence of your right to the funds. Tendered funds will not be surrendered without immediate exchange for the original Note. You have until the date the funds are tendered in person to produce and surrender the original promissory Note in exchange for the tendered funds. Failure to surrender the original Note and accept the tendered funds will result in the discharge of the Security Deed instantly. At that point, all foreclosure action must cease immediately and forever. Any attempt to foreclose after the tender has been made will be deemed as an act of fraud and will be prosecuted to the fullest extent of the law.

Later on December 18, Ra’Oof’s representative called and spoke with a Seterus employee in the Beaverton, Oregon office about the intended personal delivery of a cashier’s check in the amount of $630,000. The Seterus employee told Ra’Oof’s representative that the Beaverton office would not accept the funds in person. Ra’Oof’s representative went to the Beaverton office with the check on December 18 and on December 19 but was not admitted to the office.

1. The appellants contend that the bank’s action is barred by the doctrine of laches and, therefore, that the trial court erred in reforming the deed. OCGA § 23-1-25 provides: “Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, even when no legal limitation bars the right.” See also OCGA § 9-3-3 (“[C]ourts of equity may interpose an equitable bar whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights.”). “Of course, laches does not arise from delay alone. To prevail on a plea of laches, prejudice, too, must be shown.” Stone v. Williams, 265 Ga. 480 (458 SE2d 343) (1995).

Prejudice may arise from a change in conditions such as will “preclude the court from arriving at a safe conclusion as to the truth of matters in controversy, and which makes the doing of equity doubtful or impossible,” such as the death of a key witness. Whitfield v. Whitfield, 204 Ga. 64, 67 (2) (48 SE2d 852) (1948). In this case, the appellants have not identified any unavailable witness or other evidence that would make it difficult for the trial court to arrive at the truth of any material fact. To the contrary, Ra’Oof himself supplied the essential evidence in favor of reforming the security deed when he testified that, when he executed the security deed to secure his promissory note to Countrywide, he knew that the trust owned the property and that both he and Countrywide intended for him to execute the security deed in his capacity as trustee, rather than in his individual capacity See Salas v. JP Morgan Chase Bank, 334 Ga. App. 274, 281 (3) (779 SE2d 48) (2015). (“A written instrument can be reformed under equity if there is a mutual mistake between the parties. A‘mutual mistake’in an action for reformation means one in which both parties had agreed on the terms of the contract, but by mistake of the scrivener the true terms of the agreement were not set forth.”) (citation and punctuation omitted).

Furthermore, the appellants cannot otherwise show prejudice. A party “will not be prejudiced by the reformation of [a] deed so as to make it speak the truth.” McCollum v. Loveless, 187 Ga. 262, 267 (3) (200 SE 115) (1938). See also Hill v. Agnew, 199 Ga. 644, 646 (34 SE2d 702) (1945) (“If [a buyer] gets what he bought, then he cannot be hurt by reforming the instrument, so as to keep him from getting what he did not buy.”) (citation and punctuation omitted). The appellants’ laches argument lacks merit.

2. The appellants contend that the bank’s action is barred by the doctrine of unclean hands and, therefore, that the trial court erred in reforming the deed.

“Unclean hands” is a shorthand reference to OCGA § 23-1-10, which states, “He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.” However, relief is precluded only if the inequity so infects the cause of action that to entertain it would be violative of conscience.

(Citations and punctuation omitted.) Goodson v. Ford, 290 Ga. 662, 666 (5) (725 SE2d 229) (2012).

In terms of the bank’s conduct, the appellants allege that in 2009, when the bank acquired Countrywide’s assets in bulk through a corporate merger, the bank “failed to perform a title search and recklessly purchased [the note and security deed executed by Ra’Oof] in hopes of finding a way to overcome defective title.” In addition, they allege that, in 2010, the bank “induced Ra’Oof to stop making payments on a mortgage in order to qualify for a loan modification” and then “willfully pursued a foreclosure of the Subject Property knowing that its purported rights were defective.” Regardless whether it may have been imprudent for the bank to fail to perform a title search with regard to each of the notes and security deeds it acquired as the successor to Countrywide’s interests, it can hardly be deemed inequitable toward obligors like the appellants for the bank to fail to protect itself in this way In addition, the bank maintains that it “remains ready and willing to accept the outstanding balance of the loan from Ra’Oof if he wishes to pay it” and eliminate the need for the foreclosure that this litigation would facilitate.

More importantly, under the unclean hands doctrine, the alleged “wrongdoing must be directly related to the claim against which unclean hands is asserted.” Higdon v. Higdon, 321 Ga. App. 260, 263 (1) (a) (739 SE2d 498) (2013). See West v. Equifax Credit Information Svcs., 230 Ga. App. 41, 44 (2) (495 SE2d 300) (1997). Because none of the bank’s alleged wrongful acts relate in any way to the material question in the bank’s reformation claim, that is, whether in 2007 Ra’Oof (as the trustee for the grantor), and Countrywide (as the grantee) intended for the trust (as the grantor) to convey a security interest in its property to Countrywide, this argument lacks merit.

3. The appellants contend that the trial court erred in declaring that the security deed has not been extinguished, in that the 2007 security deed in favor of a different, lender was not assigned to the bank in a manner that makes the interest enforceable against them under the Statute of Frauds. As the bank contends, the appellants did not raise the Statute of Frauds defense in their answer, in response to the bank’s motion for summary judgment, or in their cross-motion for summary judgment. Accordingly, the appellants waived the defense, and it is not properly before this Court on appeal. OCGA § 9-11-8 (c) (requiring defendant to set forth affirmatively defense of statute of frauds); Jobling v. Shelton, 334 Ga. App. 483, 489 (2) (c) (779 SE2d 705) (2015) (“It is well settled that this Court will not consider arguments asserted for the first time on appeal and thus neither raised nor ruled upon in the trial court. The trial court cannot be reversed on any ground or argument not presented for or against a motion for summary judgment.”) (citations and punctuation omitted); Early v. MiMedx Group, 330 Ga. App. 652, 655-656 (1) (a) (768 SE2d 823) (2015) (Affirmative defenses are waived unless raised in a responsive pleading or by motion.).

4. The appellants contend that the trial court erred in declaring that the security deed has not been extinguished in that the evidence establishes that the bank is not a holder in due course. They argue that, because Ra’Oof executed the security deed in his personal capacity rather than in his capacity as trustee, the documents “show on their face a defective transaction with defective capacity and thus defective instruments” which are “wholly voidable and unenforceable” and can impose no obligation upon the trust. They argue that the bank’s failure, when it acquired Countrywide’s interest in the promissory note and security deed, to inspect the chain of title and detect the break prevents it from being a holder in due course. As the bank contends, however, the appellants base this argument solely on Article 3 of the Commercial Code, Negotiable Instruments, which has no application to the bank’s petition for equitable reformation of the security deed based on mutual mistake because a security deed is not a negotiable instrument. See OCGA § 11-3-104 (definition of a negotiable instrument); You v. JP Morgan Chase Bank, 293 Ga. 67, 73 (1) (743 SE2d 428) (2013) (A security deed, “is not a negotiable instrument and is therefore not governed by Article 3” of the Commercial Code.). Because the trust would receive a windfall if this Court countenanced this argument, equity requires reformation of the security deed. See Cotton States Mut. Ins. Co. v. Woodruff, 215 Ga. App. 511, 512 (2) (451 SE2d 106) (1994) (Where an insured added a vehicle to an existing policy just after the vehicle was involved in an accident, the record did not show a mutual mistake regarding the parties’ intent that the policy be in effect at the time of the accident. Despite the insurer’s unilateral mistake, however, equity required reformation of the policy because the insured stood to obtain a windfall of insurance coverage not bargained for.).

5. The appellants contend that the trial court erred in declaring that the security deed has not been extinguished, in that the bank wrongfully refused to accept the appellants’ tender of funds to pay off the debt secured by the subject property Under Georgia law, a tender to be effective must be unconditional “except for a receipt in full or delivery of the obligation,” and, therefore a borrower is authorized to couple a cash tender with a demand for surrender of the promissory note at issue and for cancellation of an associated security deed. Lanier v. Romm, 131 Ga. App. 531, 534 (2) (206 SE2d 588) (1974). “The refusal of a creditor to accept a proper tender in payment of a debt does not extinguish the debt, but the creditor loses the collateral benefits under the deed given to secure the debt.” Ward v. McGuire, 213 Ga. 563, 565 (100 SE2d 276) (1957). In modern banking practice, of course, surrender of the note is generally not a simultaneous hand-to-hand transaction, with a lender physically placing the original note in the hands of the borrower, and time is allowed for cancellation of the deed.

More importantly, the record contains no evidence that Ra’Oof⅛ lawyer had any basis for believing that the 2007 promissory note at issue was physically located at the office of Seterus, the company under contract to service the note, designated for making payments by “Overnight” mail delivery. A letter giving a few hours’ notice that funds would be tendered to the lender’s agent, but only with an immediate exchange for the original note, which the agent did not possess, cannot be deemed a genuine unconditional tender. As the bank points out, the lending industry in Georgia would be doomed if any borrower could extinguish a security interest simply by tendering a payoff while demanding that “delivery of the obligation” by the secured lender be done in a way that was impossible. Because the tender was not unconditional, the bank’s refusal to accept it in the manner dictated by Ra’Oof’s lawyer did not extinguish the security deed. See Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 193 (1) (489 SE2d 53) (1997).

Decided September 8, 2017.

Mzekewe Legal, Nubiyn M. Mzekewe; Ed Downs & Associates, Edward R. Downs, Jr., for appellants.

Burr & Forman, Ashby K. Fox, Charles W. Ruffin, Amanda E. Wilson, John O. Sullivan, for appellee.

6. The appellants contend that the evidence shows that the bank sought foreclosure in bad faith and, therefore, that the trial court erred in granting summary judgment in favor of the bank on their counterclaim for wrongful attempted foreclosure.

Under Georgia law,

[a]n attempted wrongful foreclosure claim exists when, in the course of a foreclosure action that was not completed, a defendant makes a knowing and intentional publication of untrue and derogatory information concerning the debtor’s financial condition, and damages were sustained as a direct result of the publication.

(Citation and punctuation omitted.) Sparra v. Deutsche Bank Nat. Trust Co., 336 Ga. App. 418, 421 (1) (c) (785 SE2d 78) (2016). See also Aetna Finance Co. v. Culpepper, 171 Ga. App. 315, 319 (1) (320 SE2d 228) (1984) (accord). The basis of the appellants’ position that the attempted foreclosure was wrongful is that the bank attempted to foreclose on the subject property knowing it lacked a security interest in the property They alleged that the publication of the notice of foreclosure in the legal organ, “where all [of Ra’Oof’s] neighbors, friends and acquaintances could see said notice,” caused him embarrassment and humiliation. Any untrue information about the bank’s security interest in the subject property, however, manifestly could not constitute untrue and derogatory information concerning Ra’Oof’s financial condition. Moreover, it is undisputed that the promissory note is in default. Therefore, this claim lacks merit. Sparra v. Deutsche Bank Nat. Trust Co., 336 Ga. App. at 421 (1) (c); Aetna Finance Co. v. Culpepper, 171 Ga. App. at 319 (1).

Judgment affirmed.

Andrews and Rickman, JJ., concur.

       The appellants asserted as defenses (1) failure to state a claim upon which relief can be granted; (2) lack of privity between the parties; (3) unclean hands; (4) res judicata; (5) judicial estoppel; (6) laches; and (7) lack of proper service and lack of proper process.

       The appellants did not respond to the bank’s waiver argument in their reply brief.

       Indeed, during his deposition, Ra’Oof expressly conceded the bank’s right to step into Countrywide’s shoes and enforce the note.

       OCGA § 11-3-101 et seq.

       OCGA § 13-4-24.

       OCGA § 44-14-3 (b) provides:
      Whenever the indebtedness secured by any instrument is paid in full, the grantee or holder of the instrument, within 60 days of the date of the full payment, shall cause to be mailed to the grantor, at the grantor’s last known address as shown on the records of the grantee or holder of the instrument, written notice of the grantee’s or holder of the instrument’s transmittal of notice of satisfaction or cancellation).] . . . Whenever the indebtedness secured by any instrument is paid in full, the grantee or holder of the instrument, within 60 days of the date of the full payment, shall cause to be furnished to the clerk of the superior court of the county or counties in which the instrument is recorded a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record.


author: Andrews, Judge.

text:
    A17A0910.
    D’ANTIGNAC v. DEERE & COMPANY.
    (804 SE2d 688)
   Andrews, Judge.

This appeal arises from Veronica D’Antignac’s suit against her employer, Deere & Company d/b/a John Deere Commercial Products, Inc. (“John Deere”), for intentional infliction of emotional distress and negligent retention. The superior court granted summary judgment to John Deere, finding that, inter alia, D’Antignac’s claims were barred by the doctrine of judicial estoppel because of her failure to disclose these claims in a prior Chapter 13 bankruptcy case. We agree and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. 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 record shows that beginning in 2004, D’Antignac was employed at a John Deere factory in Grovetown as an assembly technician. On June 25, 2008, D’Antignac’s co-worker Alfredo Renzi showed her a noose he had made and tried to place it around her neck. D’Antignac immediately reported the incident to a manager, and Renzi was terminated within hours. However, two days later, another “lasso-type noose rope” was sent down the assembly line to D’Antignac’s work station. D’Antignac left work and remained out on disability until the end of June 2010.

Previously, in February 2005, D’Antignac and her then-husband had filed for Chapter 13 bankruptcy. In the bankruptcy petition, D’Antignac was required to disclose all personal property, including “[o] ther contingent and unliquidated claims of every nature[.]” Abank-ruptcy plan to repay D’Antignac’s creditors was confirmed on August 8, 2005, but she was not discharged from bankruptcy until November 5, 2008. Thereafter, on February 5, 2009, the bankruptcy court issued a final decree, discharged the trustee, and closed D’Antignac’s case. D’Antignac never listed her claims against John Deere as an asset in her bankruptcy filings.

Meanwhile, by August 2008, D’Antignac had obtained legal counsel to pursue her claims against John Deere. And on August 22, 2008, she filed a complaint with the Equal Employment Opportunity Commission (EEOC). Between August and November 2008, D’Antignac, through counsel, communicated with John Deere about the possibility of settling the case before she filed suit. During these negotiations, she offered to settle her claims for $2,000,000.

On June 1, 2010, the EEOC issued a right-to-sue letter, and that month, D’Antignac filed a complaint in state court against John Deere and Renzi, asserting claims for intentional infliction of emotional distress, assault, aggravated assault, and negligent retention. And on August 31, 2010, D’Antignac also filed suit in federal court against John Deere and Renzi, alleging sexual and racial harassment in violation of Title VII of the Civil Rights Act of 1964.

In March 2012, in the federal case, John Deere moved for summary judgment, which the district court granted, finding that D’Antignac’s federal claim was barred by judicial estoppel because she failed to disclose it during her bankruptcy proceedings. The federal district court also found that D’Antignac’s unsecured creditors were paid only 38.5 percent of the amount of their respective claims. The Eleventh Circuit affirmed the district court decision, and the Supreme Court of the United States denied D’Antignac’s petition for certiorari. D’Antignac v. Deere & Co., 604 Fed. Appx. 875 (11th Cir. 2015), cert. denied, _ U. S. _ (136 SCt 808, 193 LE2d 713) (2016). In June 2012, after John Deere filed its motion for summary judgment in federal court, D’Antignac moved to reopen her bankruptcy case, but the bankruptcy court denied her motion because more than five years had passed since she had filed for bankruptcy and the court could no longer modify her plan or provide for additional payments.

Thereafter in April 2014, D’Antignac dismissed without prejudice her first state court suit against John Deere. In October 2014, D’Antignac refiled the instant suit against John Deere, setting forth claims for intentional infliction of emotional distress and negligent retention, and seeking general and punitive damages. John Deere again filed a motion for summary judgment asserting that D’Antignac’s claims for intentional infliction of emotional distress and negligent retention failed as a matter of law and were barred by res judicata and judicial estoppel. Following a hearing, the trial court granted summary judgment to John Deere, finding that D’Antignac’s claims were barred by res judicata because the claims had already been adjudicated or could have been adjudicated in federal court. The trial court also found that, under federal and state law, D’Antignac’s claims were barred by judicial estoppel. Finally, the trial court determined that, even if her claims were not barred, they failed as a matter of law. Finding no just reason for delay, the trial court entered final judgment in favor of John Deere. D’Antignac appeals, contending that the trial court erred in granting summary judgment (1) on the basis of judicial estoppel, (2) on the basis of res judicata, (3) as to her claim for intentional infliction of emotional distress, and (4) as to her claim for negligent retention.

1. D’Antignac asserts that the trial court erred in granting summary judgment on the basis of judicial estoppel. We disagree.

(a) In her brief, D’Antignac enumerated four claims of error, as set forth above. However, in the argument section of her brief, she begins, not with any of her enumerated errors, but with an un-enumerated claim that no court (either federal or state) has had jurisdiction to consider John Deere’s motions asserting judicial estop-pel or enter judgment based on the doctrine of judicial estoppel because those motions and judgments violate the automatic stay of the bankruptcy case and are therefore void. But this Court “has jurisdiction to decide only those issues fairly raised by an enumeration of error[.]” Coweta County v. Simmons, 269 Ga. 694, 695 (507 SE2d 440) (1998); accord Williams v. State, 320 Ga. App. 831, 837 (5) n. 23 (740 SE2d 766) (2013). Even if this issue were fairly raised by an enumeration of error, D’Antignac’s argument is without merit. An automatic stay only continues until the bankruptcy case is closed, the case is dismissed, or the case is discharged, whichever occurs first. See 11 USC § 362 (c) (2); Bullard v. Blue Hills Bank, _ U. S. _ (II) (135 SCt 1686, 1693, 191 LE2d 621) (2015) (noting that “[dismissal lifts the automatic stay entered at the start of bankruptcy”). D’Antignac was discharged from bankruptcy in 2008. Because the stay was lifted in 2008, there was no stay to violate at the time that John Deere filed its motions for summary judgment or the courts granted the motions, as D’Antignac’s suits were not even filed until 2010.

(b) D’Antignac also asserts that judicial estoppel does not apply because she had no continuing duty to notify the bankruptcy court of her claims against John Deere.

Since 1994, Georgia courts have applied the federal doctrine of judicial estoppel. See Nat. Bldg. Maintenance Specialists v. Hayes, 288 Ga. App. 25, 26 (653 SE2d 772) (2007). “The purpose of judicial estoppel is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Period Homes v. Wallick, 275 Ga. 486, 488 (2) (569 SE2d 502) (2002). As our Supreme Court has explained: “The federal doctrine of judicial estoppel precludes a party from asserting a position in one judicial proceeding after having successfully asserted a contrary position in a prior proceeding.” Id.

It is most commonly invoked to prevent bankruptcy debtors from concealing a possible cause of action, asserting the claim following the discharge of the bankruptcy and excluding resources from the bankruptcy estate that might have otherwise satisfied creditors.

Id.

Georgia courts have followed the United States Supreme Court in considering “three factors pertinent to the decision whether to apply the doctrine in a particular case”:

(1) the party’s later position must be “clearly inconsistent” with its earlier position; (2) the party must have succeeded in persuading a court to accept the party’s earlier position; . . . absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

IBF Participating Income Fund v. Dillard-Winecoff, LLC, 275 Ga. 765, 766-767 (573 SE2d 58) (2002) (citation and punctuation omitted); see also New Hampshire v. Maine, 532 U. S. 742, 750-751 (II) (121 SCt 1808, 149 LE2d 968) (2001).

We review a lower court’s application of judicial estoppel for abuse of discretion. See Klardie v. Klardie, 287 Ga. 499, 502 (2) (697 SE2d 207) (2010); Pew v. One Buckhead Loop Condo. Assn., 305 Ga. App. 456, 460 (1) (b) (700 SE2d 831) (2010).

D’Antignac contends that she has not taken a “clearly inconsistent” position because she had no duty to notify the bankruptcy court of her claims against John Deere, which arose after she filed for bankruptcy and after confirmation of her bankruptcy plan. However, as our Supreme Court has explained, a Chapter 13 debtor has a duty to include “all property acquired after the commencement of the bankruptcy proceeding ... in an amended schedule of assets.” Period Homes, 275 Ga. at 487-488 (1) (holding that, in contrast, “a debtor under Chapters 7 or 11 is under no statutory duty to amend its schedule of assets”) (emphasis in original); accord Smalls v. Walker, 243 Ga. App. 453, 455 (532 SE2d 420) (2000) (“[I]n a Chapter 13 bankruptcy, the bankruptcy estate includes all property acquired by a debtor even during the bankruptcy proceeding.”) (emphasis in original).

And “under the established law of [the Eleventh Circuit], a Chapter 13 debtor has a statutory duty to disclose changes in assets.” Robinson v. Tyson Foods, 595 F3d 1269, 1274 (III) (A) (11th Cir. 2010) (applying judicial estoppel bar to debtor’s employment discrimination claim that arose post-confirmation but prior to discharge from bankruptcy); accord In re Waldron , 536 F3d 1239, 1243 (III) (A) (11th Cir. 2008) (holding that assets acquired after confirmation of a Chapter 13 plan are property of the bankruptcy estate); Ajaka v. BrooksAmerica Mtg. Corp., 453 F3d 1339, 1344 (11th Cir. 2006) (noting that a Chapter 13 debtor “must disclose all assets, or potential assets, to the bankruptcy court[,]” and “[t]he duty to disclose is a continuing one that does not end once the forms are submitted to the bankruptcy court”); Burnes v. Pemco Aeroplex, 291 F3d 1282, 1286 (III) (A) (11th Cir. 2002) (“A debtor seeking shelter under the bankruptcy laws must disclose all assets, or potential assets, to the bankruptcy court. The duty to disclose is a continuing one that does not end once the forms are submitted to the bankruptcy court; rather, a debtor must amend his financial statements if circumstances change.”) (citation omitted). See also Bobick v. Community & Southern Bank, 321 Ga. App. 855, 861 (3), n. 5 (743 SE2d 518) (2013) (“The decisions of the United States Court of Appeals for the Eleventh Circuit are not binding on this Court, even on questions of federal law, but they are persuasive authority.”).

Despite these authorities, D’Antignac insists that she had no “freestanding” duty to disclose to the bankruptcy court her claims against John Deere because they accrued after her Chapter 13 plan was confirmed. She also argues that post-confirmation claims do not become property of the bankruptcy estate. But these arguments are foreclosed by Waldron. There, the Eleventh Circuit specifically considered “whether a debtor’s claims for legal relief that arose after the confirmation but before the completion of his plan to pay creditors are property of the estate, under Chapter 13 of the Bankruptcy Code[.]” Waldron, 536 F3d at 1240. Considering the bankruptcy statutory scheme, the court held that based on the “plain language” of 11 USC § 1306 (a), a Chapter 13 debtor’s post-confirmation claims are property of the estate because the claims were acquired “after the commencement of the . . . bankruptcy case but before [the] case was dismissed, closed, or converted.” Id. at 1242 (III) (A).

Nonetheless, D’Antignac relies on Waldron, which she asserts supports her position. Specifically, she points to the court’s statement: “We do not hold that a debtor has a free-standing duty to disclose the acquisition of any property interest after the confirmation of his plan under Chapter 13.” Id. at 1246 (III) (B). However, D’Antignac takes this quote out of context and ignores the holding in Waldron.

Finally, D’Antignac argues that the Eleventh Circuit has granted rehearing en banc to considering the application of its doctrine of judicial estoppel to a Chapter 7 debtor in Slater v. U. S. Steel Corp., 820 F3d 1193 (11th Cir. 2016), rehearing en banc granted, opinion vacated (Aug. 30, 2016). But even assuming the Eleventh Circuit were to reconsider its doctrine to D’Antignac’s benefit, Georgia law also provides for a continuing duty to disclose assets or potential assets acquired during Chapter 13 bankruptcy proceedings. See Period Homes, 275 Ga. at 487-488 (1).

Here, it is undisputed that D’Antignac had acquired her claims by August 2008. D’Antignac was not discharged from bankruptcy until November 2008; and the bankruptcy case was not closed until 2009. Given the Georgia and Eleventh Circuit authority that a Chapter 13 debtor has a continuing duty to disclose a claim arising after confirmation during Chapter 13 bankruptcy proceedings, we conclude the trial court did not abuse its discretion in finding that judicial estoppel barred D’Antignac’s claims and, thus, did not err in granting summary judgment to John Deere on this basis. See Period Homes, 275 Ga. at 487-488 (1) (noting that a Chapter 13 debtor has a duty to include “all property acquired after the commencement of the bankruptcy proceeding ... in an amended schedule of assets”); accord Robinson, 595 F3d at 1274-1275 (III) (A) (applying judicial estoppel bar to debtor’s employment discrimination claim that arose post-confirmation but prior to discharge from bankruptcy); see In re Waldron, 536 F3d at 1242 (III) (A) (holding that Chapter 13 debtor’s claim for underinsured-motorist benefits were property of the bankruptcy estate because, although claim arose after commencement of bankruptcy, it arose before case was dismissed, closed or converted); Ajaka, 453 F3d at 1342-1344 (applying a continuing duty to disclose a claim under the Truth in Lending Act that debtor first became aware of after confirmation of his Chapter 13 plan). But see Chicon v. Carter, 258 Ga.App. 164, 164 (573 SE2d 413) (2002) (refusing to apply judicial estoppel to bar Chapter 13 debtor’s claim where the injury arose “after confirmation of a plan providing for payment in full of all creditors, and the debtors were discharged after successfully completing their plan”).

Decided August 16, 2017

Reconsideration denied September 13, 2017

John P. Batson, for appellant.

Hull Barrett, James B. Ellington, for appellee.

2. Because D’Antignac’s claims are barred by judicial estoppel, we need not consider her remaining arguments.

Judgment affirmed.

Ellington, P. J., and Rickman, J., concur.

       Renzi was also named as a defendant, and D’Antignac set forth claims of intentional infliction of emotional distress, assault, and aggravated assault against him. Renzi is not a party to this appeal.

       In considering the debtor’s argument that “a duty to disclose assets acquired after confirmation unduly burdens Chapter 13 debtors!,]” wh° would then be required ‘to amend their schedule of assets to disclose their wages, weekly groceries, or every tank of gasoline as new assets,” the court explained that it did not “hold that a debtor has a free-standing duty to disclose the acquisition of any property interest. . . .” Waldron, 536 F3d at 1245-1246 (III) (B) (punctuation omitted; emphasis supplied).


text:
    A17A1655.
    ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY v. MUSGROVE et al.
    (804 SE2d 693)
   Andrews, Judge.

After Russell Brent Musgrove, Sr., and Karen Wallace Musgrove (“the Musgroves”) were killed in an automobile accident, Russell Brent Musgrove, Jr., and Jeffrey Wade Musgrove (“the plaintiffs”) filed a wrongful death suit against the other driver and Allstate Property and Casualty Insurance Company, the Musgroves’ insurer. Allstate and the plaintiffs filed cross-motions for summary judgment, and the trial court granted summary judgment to the plaintiffs, finding that the Musgroves had two insurance policies, each of which provided separate uninsured motorist coverage. Allstate appeals, and for the reasons that follow, we reverse.

The Musgroves insured five vehicles with Allstate, under two different policy numbers, 931 390 525 and 985 080 805. They also had additional uninsured motorist (“UM”) coverage with limits of $250,000 per person/$500,000 per accident. The UM coverage was charged on policy number 931 390 525. The Musgroves renewed their insurance with Allstate on June 19, 2014, and on October 30, 2014, while policy numbers 931 390 525 and 985 080 805 were in effect, the Musgroves were in the fatal accident. Following the accident, Allstate tendered $250,000 on behalf of each of the Musgroves, for a total of $500,000.

The plaintiffs thereafter filed suit, and Allstate filed a motion for summary judgment, arguing that despite the different policy numbers, the Musgroves had a single automobile policy, with $500,000 in UM coverage, which had already been paid. The plaintiffs also filed a motion for summary judgment, asserting that the Musgroves had two separate policies and each policy had $500,000 in UM coverage, such that they were entitled to an additional $500,000. Following a hearing, the trial court granted summary judgment to the Mus-groves. This appeal follows.

“The ordinary rules of contract construction apply to determine the intent of the parties with respect to the insurance contract at issue.” Varsalona v. Auto-Owners Ins. Co., 281 Ga.App. 644, 645 (637 SE2d 64) (2006). Generally, this “presents a question of law for the court unless language in the policy creates an ambiguity that cannot be resolved by the rules of construction.” Id. Indeed, “[n]o construction of an insurance contract is required or even permissible when the language is plain, unambiguous, and capable of only one reasonable interpretation.” Id. at 645-646 (citation and punctuation omitted).

In a single claim of error, Allstate contends that the trial court erred in finding that the Musgroves had two separate policies, each of which provided $500,000 in UM coverage. We agree.

At the time of the accident, the auto policy declaration for policy number 931 390 525 showed liability coverage for three vehicles, and additional UM coverage in the amount of $250,000 per person/$500,000 per accident. The declaration for policy number 985 080 805 showed liability coverage for two other vehicles. Policy number 985 080 805 also references UM coverage in the same amount but notes that the premium is “[cjharged on policy number 931 390 525 [.] ” Thus, despite the two different policy numbers, the policy declarations are unambiguous that the Musgroves had, charged to only one policy (policy number 931 390 525), additional UM coverage in the amount of $250,000 per person/$500,000 per accident. Accordingly, the Mus-groves had a total of $500,000 in UM coverage, which Allstate has already tendered.

Even assuming the policy declarations were ambiguous as to whether the Musgroves had purchased one UM coverage endorsement or two, the parol evidence shows that, despite the different, policy numbers, there was only a single policy, with a total of $500,000 in UM coverage. See American Cyanamid Co. v. Ring, 248 Ga. 673, 674 (286 SE2d 1) (1982) (“While, generally, an ambiguity in a contract may be explained by parol evidence, parol evidence is inadmissible to add to, take from or vary a written contract.”) (citation and punctuation omitted); State Farm Fire and Cas. Co. v. Bauman, 313 Ga. App. 771, 773-774 (723 SE2d 1) (2012) (“Whether or not an insurance contract contains an ambiguity is a question of law for the court. A word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one so that it involves a choice between two or more constructions of the contract.”) (citations and punctuation omitted). For example, an Allstate employee submitted an affidavit, in which he averred that Allstate’s “computer system allows a maximum of four vehicles to be listed on each policy declarations page” and when Allstate issues a policy for more than four vehicles, it issues a policy number and second multiple record policy number. Allstate conveyed this information in its June 19, 2014 renewal offer for policy number 931 390 525, which stated:

Please note: our system allows a maximum of four vehicles to be listed on your insurance Policy Declarations. Because you’re insuring more than four vehicles, you are receiving more than one automobile Policy Declarations associated with your single Allstate Fire and Casualty Insurance Company policy Any additional vehicles that you’re insuring will be listed on a separate Policy Declarations that we will send to you in a separate mailing, along with any applicable endorsements and Policy Information Cards.
All your vehicles are insured under one single policy, which means you’ll have only one policy effective date and receive only one bill for the coverage of these vehicles.

(Emphasis in original.) And the Musgroves were issued a single bill, with a single premium, which referenced both policy numbers. Notably, this Court has previously considered language similar to that used by Allstate in its June 19 renewal offer and held that “Allstate could not have made it plainer that it was issuing one contract, albeit in two sections,” such that the insured was entitled to only one insurance payment. Smith v. Allstate Ins. Co., 268 Ga. App. 229, 230 (603 SE2d 302) (2004) (holding that, where cover letter to policy included language explaining that two declarations were issued because the insureds owned seven vehicles, occupants of vehicle hit by insured could not “stack” liability policies because there was only one policy).

Decided August 24, 2017

Reconsideration denied September 13, 2017

Carlock, Copeland & Stair, Frederick M. Valz III, Melissa L. Bailey, for appellant.

McMickle, Kurey & Branch, Scott W. McMickle, Chandler L. Smith, for appellees.

For these reasons, it appears that the trial court erred in granting summary judgment to the plaintiffs and denying summary judgment to Allstate.

Judgment reversed.

Ellington, P. J., and Rickman, J., concur.

       Our decision is also consistent with foreign authorities who have considered similar circumstances. See, e.g., Allstate Ins. Co. v. Ashley, 833 FSupp. 583, 586 (S.D. W. Va. 1993), aff’d 37 F3d 1492 (4th Cir. 1994) (finding that all five of the insureds’ vehicles were covered by one policy and one UM coverage endorsement); Allstate Ins. Co. v. Stilwell, 181 N.C.App. 141, 144 (639 SE2d 107) (2007) (finding that “[gjiven the language in the declarations, along with explanatory letters from Allstate, the billing under one number with the same renewal periods, the cross-referencing of the policy numbers, and the fact that the [insureds] were only charged once for UIM coverage,” the insureds had only a single insurance policy); Dodd v. Allstate Ins. Co., 99 P3d 1219, 1222, 1224 (¶¶ 10, 13) (Ok. Civ. App. 2004) (holding that whether insured had one policy or two, she was entitled to two UM benefits where she paid two UM premiums); Allstate Ins. Co. v. Durham, 838 S2d 1254 (Fla. Dist. Ct. App. 2003) (finding that insureds’ five vehicles were insured under two different policy numbers, but Allstate had issued only one insurance policy, such that it was only required to provide one statutory notification that UM coverage was not being provided).


author: Rickman, Judge.

text:
    A17A0869, A17A0870.
    A17A0871.
    SAWS AT SEVEN HILLS, LLC et al. v. FORESTAR REALTY, INC. et al.; and vice versa. BERKSHIRE HATHAWAY HOME SERVICES GEORGIA v. SAWS AT SEVEN HILLS, LLC et al.
    (805 SE2d 270)
   Rickman, Judge.

Approximately four-and-a-half years after acquiring property in Seven Hills, a planned community, SAWS at Seven Hills, LLC, Nature Walk Development Company, Inc., and Artisan Built Communities, LLC (collectively “SAWS”), filed suit against the Seven Hills Homeowners Association, Inc. (the “HOA”), Forestar Realty, Inc. (the declarant of the HOA), and Fieldstone Realty Partners d/b/a Fieldstone Association Management (the management company for the HOA) (collectively “Forestar”), to resolve disputes over, inter alia, HOA assessments, maintenance of common areas within the community, and alleged false information provided by Forestar to prospective home buyers regarding SAWS’s properties. SAWS also filed suit against Berkshire Hathaway Home Services Georgia (“BHHS”), a real estate brokerage firm with a sales office located inside the Seven Hills clubhouse, alleging that its sales agents provided false information to prospective home buyers regarding SAWS properties. SAWS sought a declaratory judgment and alleged breach of covenants by Forestar, and further alleged tortious interference with business relations by Forestar and BHHS.

Forestar and BHHS filed motions for summary judgment. The trial court granted Forestar’s motion in part and denied it in part as to the declaratory judgment and breach of covenant claims, and denied summary judgment to Forestar and BHHS on SAWS’s claims of tortious interference with business relations.

For the following reasons, we vacate the trial court’s ruling on SAWS’s claims for declaratory judgment and breach of covenant and remand for proceedings consistent with this opinion. We reverse the trial court’s denial of summary judgment to Forestar and BHHS on SAWS’s tortious inference with business relations claim.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review de novo the trial court’s ruling on a motion for summary judgment.

(Citation and punctuation omitted.) Hart v. Sirmans, 336 Ga. App. 212 (784 SE2d 67) (2016).

So viewed, the record shows that Seven Hills is a planned community that encompasses over 2,700 acres of land. The original developer of Seven Hills was TEMCO Associates, LLC (“TEMCO”). TEMCO created the Seven Hills HOA and, in 2003, recorded the “Declaration of Covenants, Conditions, and Restrictions for Seven Hills” (the “Declaration”). TEMCO was the Declarant under the Declaration.

At some point, TEMCO sold approximately 855 acres of Seven Hills (“the Property”) to Patrick Malloy Communities, LLC, which later sold the Property to Levitt and Sons of Paulding County, LLC (“Levitt”). Levitt started to develop the Property and subsequently recorded 44 platted lots with the HOA.

Later, Levitt filed for bankruptcy Thereafter, SAWS acquired the Property through a bankruptcy sale. During the pendency of the bankruptcy sale, Levitt recorded another plat which recombined the Property into one unit. The bankruptcy court approved the sale.

At some point after SAWS acquired the Property, TEMCO transferred its ownership rights in the remaining acreage of Seven Hills to Forestar. TEMCO also assigned to Forestar its rights as declarant under the Declaration. In 2014, Forestar recorded an Amended Declaration and a Supplemental Declaration. SAWS disputes the enforceability of the Amended and Supplemental Declarations.

SAWS sought a declaratory judgment as to two separate issues involving the interpretation of language contained in the Declaration related to HOAassessments and maintenance of common areas. As to HOAassessments, SAWS argued that the Declaration is ambiguous as to the triggering point for the payment of assessments after a plat is recorded and sought clarification as to when assessments shall be calculated with respect to each subsequently platted unit. SAWS further argued that it was entitled to a declaration that the Property should have been treated as one unit until mid-2013 when it recorded its first plat. Regarding maintenance of common areas, SAWS argued that it was entitled to a declaration that Forestar is required to maintain common areas owned by SAWS. SAWS’s breach of covenant claims center around the same issues, namely that Forestar breached the Declaration by charging SAWS for assessments not owed. SAWS further alleged that Forestar failed to maintain common areas in accordance with the terms of the Declaration.

Additionally, SAWS argued that agents of Forestar and BHHS gave potential home buyers false information about SAWS’s properties in order to steer buyers away from purchasing homes from SAWS. SAWS alleged that as a result of Forestar and BHHS’s actions, SAWS suffered damages due to lost sales.

The trial court granted in part and denied in part summary judgment to Forestar on SAWS’s claims for declaratory judgment and breach of covenant and denied summary judgment to both Forestar and BHHS on SAWS’s claim for tortious interference with business relations. For the following reasons, we vacate the trial court’s ruling on SAWS’s claims for declaratory judgment and breach of covenant and remand this case for proceedings consistent with this opinion. We reverse the trial court’s denial of summary judgment on the tortious inference with business relations claim as to both Forestar and BHHS.

Case No. A17A0869

1. SAWS contends that the trial court erred by granting summary judgment in part to Forestar on its claims for declaratory judgment and breach of covenant regarding HOA assessments. Specifically, SAWS argues that the Declaration is ambiguous as to when the obligation to pay HOAassessments commences and contends that the trial court failed to engage in a contract construction analysis and/or misinterpreted the contract language as to when its obligation to pay assessments began. We agree.

The Declaration provides that “[t]he obligation to pay assessments shall commence as to each Unit on the earlier of: (a) the closing of the conveyance of the Unit to a Class ‘A’ Member other than a Builder; or (b) 15 months following the conveyance of the Unit from [Forestar] or any Affiliate of [Forestar] to a Builder. . . T The Declaration defines a “Unit” as

[a] portion of Seven Hills, whether improved or unimproved, which may be independently owned and is intended for development, use, and occupancy as an attached or detached residence for a single family The term shall refer to the land, if any, which is part of the Unit as well as any improvements thereon. The boundaries of each Unit shall be delineated on a recorded plat.
Prior to recording a subdivision plat delineating Units within a parcel, such parcel shall be deemed to be a single Unit. Thereafter, the portion encompassed on such plat shall contain the number of Units determined as set forth in the preceding paragraph. Any portion not encompassed on such plat continue to be treated as a single unit.

SAWS argues that while the Declaration is clear as to when a Builder pays assessments for the Unit(s) that it acquires at the time of the conveyance of the property from Forestar or its affiliate (i.e., 15 months from the conveyance), it is ambiguous as to when the obligation to pay assessments commences as to each newly-platted Unit the Builder subsequently records after the initial conveyance of the property

[U]nder the Declaratory Judgment Act, a superior court may enter declaratory judgment in cases of actual controversy, and to determine and settle by declaration any justi-ciable controversy of a civil nature when it appears that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations. But a declaratory judgment may not be merely advisory in nature. Thus, when a party seeking declaratory judgment does not show it is in a position of uncertainty as to an alleged right, dismissal of the declaratory judgment action is proper.

(Citation and punctuation omitted.) Pinnacle Benning v. Clark Realty Capital, 314 Ga. App. 609, 612-613 (1) (724 SE2d 894) (2012). See OCGA § 9-4-1 et seq.

“[T]he declaration of a homeowner’s association is considered a contract[.]” (Citations and punctuation omitted.) Marino v. Clary Lakes Homeowners Assn., 331 Ga. App. 204, 208 (1) (770 SE2d 289) (2015). “The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Citation and punctuation omitted.) Dewrell Sacks, LLP v. Chicago Title Ins. Co., 324 Ga. App. 219, 223 (2) (a) (749 SE2d 802) (2013). “The construction of a contract is peculiarly well suited for disposition by summary judgment because, in the absence of an ambiguity in terms, it is a question of law for the court.” Tucker Materials (GA) v. Devito Contracting & Supply, 245 Ga. App. 309, 310 (535 SE2d 858) (2000).

In its summary judgment order, the trial court found that SAWS’s claim for a declaratory judgment related to assessments made prior to mid-2013 was improper because declaratory relief is limited to future, not past actions. We agree. See Richardson v. Phillips, 302 Ga. App. 305, 309 (1) (690 SE2d 918) (2010) (“[A] declaratory judgment will not be entertained where the rights of the parties have accrued and the plaintiff faces no risk of taking future undirected action.”) (citations and punctuation omitted).

As to future assessments, the trial court found that issue to be appropriate for declaratory relief. But while the trial court summarily concluded that fees were properly assessed against SAWS, it did so without addressing the threshold question as to whether the language of the Declaration governing the assessment of those fees was ambiguous and when, under the terms of that contract, SAWS’s obligation to pay the assessments under these facts began. Additionally, the trial court failed to make any finding as to what the triggering point for future assessments is under the Declaration.

Accordingly, we vacate the judgment of the trial court and remand this case for the trial court to construe the Declaration under the ordinary rules of contract construction to determine at what point, if any, the obligation to pay assessments commences upon a Builder to whom a unit (or more) of property has already been conveyed as to each subsequently platted unit. After making this determination, the trial court should reconsider Forestar’s motions for summary judgment as to SAWS’s claims for declaratory judgment and breach of covenant on the issue of assessments and how they are to be calculated based upon the Declaration. See generally CBS v. Anointed Hair Studio, 325 Ga. App. 560, 562-563 (1) (754 SE2d 138) (2014); see also Bd. of Regents of the Univ. System of Ga. v. Daniels, 264 Ga. 328 (446 SE2d 735) (1994).

Case No. A17A0870

2. Forestar contends that the trial court erred in denying its motions for summary judgment as to SAWS’s claims for declaratory judgment and breach of covenant regarding maintenance of common areas under the Declaration. Specifically, Forestar argues that the Declaration unambiguously provides that it is not responsible for the maintenance of the common areas located on SAWS’s property

The threshold issue for SAWS’s claims for declaratory relief and breach of covenant as to the maintenance of common areas is whether the Amended and Supplemental Declarations are enforceable.

The original Declaration provides that “[a]n integral part of the development plan is the [HOA], an association comprised of all Seven Hills property owners, to own, operate, and/or maintain various common areas and community improvements.” The original Declaration defines common area as “[a] 11 real and personal property which the Association owns, leases, or otherwise holds possessory or use rights in for the Owners’ common use and enjoyment.” The Amended Declaration provides that “[o]wners within a Neighborhood shall be responsible for paying, through Neighborhood Assessments, the costs of operating, maintaining and insuring certain portions of the Area of Common Responsibility within or adjacent to such Neighborhood.”

Additionally, as to maintenance of the area of common responsibility, the original Declaration provides, in pertinent part:

The [HOA] shall maintain, in accordance with the Community-Wide Standard, the Area of Common Responsibility, which shall include, but need not be limited to:
(a) the Common Area, including, without limitation, entry features, recreational amenities, gathering parks and areas, natural areas, sidewalks, and private roadways, if any, within Seven Hills;
(b) landscaping and sidewalks within public rights-of-way within or abutting Seven Hills;
(c) such portions of any additional property which may be dictated by [Forestar], this Declaration, any Supplemental Declaration, or any contract, covenant, or agreement the [HOA] enters into (or which [Forestar] enters into on the [HOA’s] behalf); and
(d) any property and facilities that [Forestar] owns and makes available, on a temporary or permanent basis, for the primary use and enjoyment of the [HOA] and its Members . . .
The [HOA] may maintain other property which it does not own, including, without limitation, property dedicated to the public, if the Board determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard.

The Amended Declaration replaces that section in its entirety and provides:

The [HOA] shall maintain, in accordance with the Community-Wide Standard, the Area of Common Responsibility.
The [HOA] may maintain other property which it does not own, including, without limitation, property dedicated to the public, if the Board determines that such maintenance is necessary or desirable to maintain the Community-Wide Standard. . . .
Without limiting the generality of the foregoing, upon assignment from [Forestar], the [HOA] shall assume all of [Forestar’s] . . . responsibilities with respect to the maintenance and operation of the Common Area. . . .
The Supplemental Declaration provides, in pertinent part:
SAWS [has] recorded one or more subdivision plats . . . referred to as a “Nature Walk Plat”. . . .
[Forestar] has not accepted any Nature Walk Common Areas or assumed any responsibility for any portion of the [SAWS] real property. . . .
[Forestar] has made no promises, representations or warranties, express or implied, regarding constructing, erecting or maintaining any Nature Walk Common Areas or other areas of common responsibility . . . including, without limitation, any signage, entry features, right-of-way, green-space, private streets, lakes or ponds, golf cart paths, nature trails or other recreational amenities located therein.
[T]here are not any Common Areas or Areas of Common Responsibility with the [SAWS] real property . . .
[N] either [Forestar] or the [HOA] have agreed to accept as Common Area any portion of [SAWS’s] real property . . .
[N] either [Forestar] or the [HOA] have agreed to assume responsibility for any portion of [SAWS’s] real property . . .
Neither the [HOA] nor [Forestar] has assumed any responsibility for any property within the Nature Walk Neighborhood pursuant to the Declaration, any Supplemental Declaration, covenant, contract or agreement .... Further, neither the [HOA] nor [Forestar] has assumed any responsibility for any property within the Nature Walk Neighborhood by virtue of designating Nature Walk as a Neighborhood. Therefore, the [HOA] has no obligation to maintain any portion of the Nature Walk Neighborhood.
The obligation for operating, maintaining and insuring signage, entry features, right-of-way, greenspace between the Nature Walk Neighborhood and adjacent public roads, private streets within the Nature Walk Neighborhood, lakes or ponds within the Nature Walk Neighborhood, and any golf cart paths, nature trails or any other recreational amenities within the Nature Walk Neighborhood remains with the Owner of such property upon which any such improvement exists.

Forestar’s position is that, pursuant to language in the original Declaration, it has the authority to amend and supplement the original Declaration. The original Declaration provides that “[Forestar] may unilaterally record a Supplemental Declaration, amend this Declaration or any Supplemental Declaration to create Neighborhoods, redesignate Neighborhood boundaries, or combine two or more existing Neighborhoods.” The original Declaration further provides that “[i]n addition to specific amendment rights granted elsewhere in this Declaration . .. [Forestar] unilaterally may amend this Declaration for any purpose.”

SAWS argues that the Amended and Supplemental Declarations are not enforceable. According to SAWS, the language in the original Declaration purportedly authorizing Forestar to amend and supplement the Declaration was too broad to properly put purchasers of property within Seven Hills on notice that such material changes could be made to the existing Declaration. SAWS further argues that Forestar was prohibited from making a material change to the Declaration that would burden existing homeowners within SAWS’s property

“The construction of a contract is peculiarly well suited for disposition by summary judgment because, in the absence of an ambiguity in terms, it is a question of law for the court.” Tucker Materials (GA), 245 Ga. App. at 310. See Precision Planning v. Richmark Communities, 298 Ga. App. 78 (679 SE2d 43) (2009) (“The issues of contract construction and enforceability are generally questions of law for a court to resolve[.]”).

In its summary judgment order, the trial court included language from both the original and Supplemental Declarations but did not address which Declaration governed Forestar’s responsibilities, or lack thereof, regarding maintenance of common areas even though each party argued that a different, Declaration controlled. The issue of whether the original Declaration was properly amended and supplemented must be resolved prior to analyzing SAWS’s claims. Accordingly, we remand this case to the trial court to resolve the issue of which Declaration controls and then to construe the enforceable Declaration when analyzing Forestar’s motion for summary judgment as to SAWS’s claims for declaratory judgment and breach of contract regarding maintenance of common areas. See generally DeKalb County v. City of Decatur, 297 Ga. App. 322, 325 (677 SE2d 391) (2009).

3. Forestar contends that the trial court erred by denying its motion for summary judgment as to SAWS’s claim for tortious interference with business relations. Specifically, Forestar argues that SAWS has produced no evidence that it suffered any damages as a result of Forestar’s alleged interference.

The essential features of a cause of action for tortious interference with business relations are that the defendant, acting improperly, without privilege, and with the malicious intent to injure plaintiff, induces a third party not to enter into or to continue a business relationship with plaintiff, which causes plaintiff financial injury.

(Citations and punctuation omitted.) Sumter Regional Hosp. v. Sumter Free Press, 248 Ga. App. 780, 781 (1) (546 SE2d 831) (2001).

SAWS claims that agents and employees of Forestar provided existing and prospective home buyers with false information about its property, specifically concerning HOA assessments, common area maintenance, and amenities. Additionally, SAWS claims that in furtherance of Forestar’s effort to provide misinformation about SAWS Property, it attempted to amend and supplement the original Declaration. SAWS alleges that as a result of Forestar’s actions, it suffered damages and lost sales.

However, SAWS has not demonstrated that any alleged conduct on behalf of the agents and employees of Forestar caused any lost sales. The only evidence that SAWS points to regarding financial injury is an affidavit from a potential home buyer. That affidavit stated that the potential home buyer was a real estate agent and, along with her husband, looked at homes within Seven Hills, including SAWS’s properties. Initially, the potential home buyer put one of SAWS’s properties under contract and when she informed the BHHS’s agents that she did so, they told her to carefully review the HOA documents because there could be extra fees for the SAWS’s properties. The affidavit concludes by stating that, “[d]ue to a number of factors in the sales process, we eventually decided to cancel the contract with [SAWS].... My husband and I love the [SAWS’s properties] and are disappointed that the dispute between Seven Hills and [SAWS] interfered with our purchase decision.”

This affidavit does not establish that any actions by Forestar’s agents or employees induced the potential home buyer to cancel the contract. Additionally, at some point after the affidavit was filed, the potential home buyer sent an e-mail to all of the lawyers involved in the case explaining her desire to withdraw the affidavit because she discovered an “untruth” on the final page. The potential home buyer stated that she asked SAWS to reword the affidavit several times and that on the final version she signed the last page without noticing the “untruth.” The potential home buyer stated that the final paragraph referencing that the dispute between Seven Hills and SAWS interfered with her decision to purchase the SAWS property was untrue.

The potential home buyer subsequently filed a second affidavit. The second affidavit states, in pertinent part:

[Paragraph 9 of the . . . affidavit, which provides: “My husband and I love the [SAWS property] and are disappointed that the dispute between Seven Hills and [SAWS] interfered with our purchase decision[,”] is not correct. I am a professional real estate agent and in my experience when a developer represents something as a possible future subdivision amenity, that is not a guaranty that the amenity will be built. [BHHS’s agents] suggested to me that I should carefully review the homeowners’ association documents, but this was something I was already doing on my own. After doing my due diligence, I felt that the representations being made to my husband and me by [SAWS] representatives about future amenities, and costs associated with them, were likely not accurate. I reached this conclusion on my own, and nothing said or done by [BHHS’s agents] influenced me in this regard. My husband’s and my decision to cancel the [SAWS] lot contract had nothing to do with any dispute between Seven Hills and [SAWS] or anything said or done by [BHHS’s agents]. Rather, the decision by my husband and me to cancel the [SAWS] lot contract and instead purchase [in Seven Hills] came down to a comparison of the incentives, the values, the quality of construction and the overall fit for our lifestyle. The [SAWS] homes . . . were less expensive, but did not include many of the upgrades that we were looking for and I was concerned about the relative quality and resale value of the [SAWS] homes . . . compared to those in other sections of Seven Hills.

These affidavits are the only evidence of damages that SAWS points to and do not establish that any action on Forestar’s behalf caused SAWS’s lost sales. Regardless of the fact that neither of the affidavits from the potential home buyer mention any alleged statements from a Forestar agent or employee, the evidence does not demonstrate any financial loss as a result of Forestar’s (or BHHS’s) alleged actions. SAWS is unable to identify a single prospective home buyer whose sale it lost due to the alleged actions of Forestar, nor any other financial loss. Accordingly, the trial court erred in denying summary judgment to Forestar on the tortious interference count. See Sumter Regional Hosp., 248 Ga. App. at 781-782 (1); see also Lively v. McDaniel, 240 Ga. App. 132, 134 (3) (522 SE2d 711) (1999).

Decided September 13, 2017.

Nelson Mullins Riley & Scarbrough, Gregory M. Taube, Jessica R. Watson, RichardB. Herzog, Jr., for SAWS at Seven Hills, LLC et al.

Bloom Sugarman, Simon H. Bloom, Shannan F. Oliver, Ryan E. Harbin, for Forestar Realty, Inc. et al.

Weissman PC, Ned Blumenthal, for Berkshire Hathaway Home Services Georgia.

Case No. A17A0871

4. BHHS contends that the trial court erred by denying its motion for summary judgment as to SAWS’s claim for tortious interference with business relations. Specifically, BHHS argues that SAWS has produced no evidence that it has suffered any damages as a result of BHHS’s alleged interference.

SAWS points to the same evidence of alleged damages as it did in the tortious inference claim against Forestar. Accordingly, for the reasons set forth in Division 3, we conclude that the trial court erred by denying summary judgment to BHHS. See Sumter Regional Hosp., 248 Ga. App. at 781-782 (1); see also Lively, 240 Ga. App. at 134 (3).

Judgment vacated and case remanded in Case No. Al 7A0869. Judgment reversed and case remanded in Case No. Al 7A0870. Judgment reversed in Case No. Al 7A0871.

Ellington, R J., and Andrews, J., concur.

       A builder is defined in the Declaration as “[a]ny person who purchases one or more Units for the purpose of constructing homes for later sale to consumers, or who purchases land within Seven Hills for further subdivision, development, and/or resale in the ordinary course of its business.” Neither party contests that SAWS falls within the definition of a builder.

       The cardinal rule of construction is to ascertain the intent of the parties. Where the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties. To determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred. When the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation the language used must be afforded its literal meaning and plain ordinary words given their usual significance.
      (Citation and punctuation omitted.) Crabapple Lake Parc Community Assn. v. Circeo, 325 Ga. App. 101, 105 (1) (a) (751 SE2d 866) (2013). See Marino, 331 Ga.App. at 208 (1) (the declaration of a homeowner’s association should be construed using the normal rules of contract construction) .