author: ELLINGTON, Presiding Judge. BRANCH, Judge,

text:
    A13A2397.
    GWINNETT COMMUNITY BANK v. ARLINGTON CAPITAL, LLC et al.
    (757 SE2d 239)
   ELLINGTON, Presiding Judge.

Gwinnett Community Bank (“GCB”) filed suit on a note and certain guaranties and asserted claims of fraud and breach of fiduciary duty against, inter alia, the debtor, Arlington Capital, LLC, and the guarantor, Richard Tucker. In an earlier order, the trial court granted summary judgment against GCB on its claims on the note and guaranties, and GCB’s subsequent appeal was dismissed, which thereby established the trial court’s order as the law of the case. On remittitur, the trial court granted summary judgment against GCB on its claims of fraud and breach of fiduciary duty and denied summary judgment to GCB on three counterclaims filed by Arlington. GCB appeals these two rulings. We affirm the trial court’s grant of summary judgment to Arlington and Tucker on GCB’s claims for fraud and breach of fiduciary duty. We also hold, however, that the “law of the case” rule requires that we reverse the trial court’s denial of summary judgment to GCB on three of Arlington’s counterclaims. Accordingly, we affirm in part and reverse in part.

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). Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the appellant, GCB, in Division 1, and, in Division 2, in favor of the appellees, as appropriate.

Construed in favor of GCB, the record shows that in August 2004, Arlington Capital, LLC, whose business provides “mezzanine financing” by borrowing money from banks and lending that money to real estate clients, established a line of credit with GCB by executing a one-year, $4 million promissory note in favor of GCB (the “Arlington Note”), guaranteed by Arlington’s principal, Richard Tucker. The Arlington Note was renewed each year through and including August 2008; each renewal was subject to a commercial security agreement. From at least 2006 forward, each security agreement provided that GCB would have a security interest in specified property that Arlington “owns or has sufficient rights in which to transfer an interest, now or in the future” including “the assignment of promissory notes and deeds to secure debt made payable to [Arlington].”

With each renewal, Arlington and Tucker also provided new financial statements and executed new notes. In each annual promissory note signed by Tucker on behalf of Arlington, Arlington warranted that “the financial statements and information I provide to you are or will be accurate, correct and complete.” In early 2009, GCB discovered for the first time that Tucker’s financial statements associated with the 2007 and 2008 renewals failed to reflect that Tucker had disposed of real estate valued at approximately $6 million and that the real estate was sold for inadequate consideration, thereby depleting Tucker’s net worth to a material degree.

Meanwhile, on November 21, 2006, Arlington loaned $2.5 million to nonparty Shiloh Woods, LLC and, in exchange, took a $2.5 million promissory note from Shiloh Woods secured by a second priority deed to secure debt on certain property, as well as certain guaranties (the “Shiloh Woods Note and Deed”). Apparently on that same day, in exchange for a $2 million advance on the GCB line of credit, which advance was used to help fund the loan to Shiloh Woods, Arlington assigned the Shiloh Woods Note and Deed to GCB to secure further its line of credit with GCB; Arlington drafted the two assignments. During the recession, the Shiloh Woods Note and Deed, as well as the first priority position on the Shiloh Woods Deed, went into default, and in 2009, Arlington defaulted on the Arlington Note.

In May 2010, GCB filed suit on the Arlington Note and Tucker guaranties against Arlington, Tucker, and others who are not parties to this appeal. During the litigation and faced with the possible foreclosure of the first priority secured position on the Shiloh Woods Deed, which could have eliminated GCB’s second priority security position, GCB agreed with Shiloh Woods to exchange/sell the Shiloh Woods Note and Deed for a form of security more acceptable to GCB, including new secured property, a new promissory note payable to GCB, and new guaranties benefitting GCB. Although GCB had met with Arlington and Shiloh Woods regarding a “settlement” of some sort, GCB failed to give Arlington and Tucker the specific notice of disposition of the Shiloh Woods collateral required by OCGA § 11-9-611 (b) of the Secured Transactions provisions of the Georgia Uniform Commercial Code. As a consequence, Arlington and Tucker amended their defenses and added counterclaims to assert that GCB failed to give Arlington proper notice of the sale as required by the UCC.

Specifically, in Counterclaim I, Arlington and Tucker sought damages under the UCC for alleged lost surplus value, i.e., the extent to which the Shiloh Woods Note and Deed exceeded the value of the balance due on the Arlington Note at the time that GCB sold the Shiloh Woods Note and Deed. In Counterclaims II and III, Arlington and Tucker raised claims of conversion and breach of the 2008 security agreement, respectively, and sought damages for the same alleged lost surplus value sought in Counterclaim I, as well as punitive damages arising out of the conversion. Finally, in Counterclaim VIII, Arlington and Tucker claimed that GCB breached federal privacy laws and an online “privacy statement” when GCB communicated with Shiloh Woods regarding the sale/exchange of the Shiloh Woods Note and Deed.

Later, Arlington and Tucker moved for summary judgment on Counts I and II of GCB’s complaint on two grounds: (1) that the exchange of the Shiloh Woods Note and Deed constituted a sale of a promissory note for purposes of the UCC and, pursuant to OCGA §§ 11-9-608 (b) and 11-9-615 (e),GCB was precluded as a matter of law from seeking a deficiency judgment against either Arlington or Tucker; and (2) that GCB’s failure to provide notice of the Shiloh Woods sale as required by OCGA § 11-9-611 raised a presumption that the sale satisfied Arlington’s contractual debt to GCB. In its first summary judgment order, the trial court cited both theories and concluded that “the creditor loses not merely the right to recover a personal judgment against the debtor, but also the right to recover the deficiency.” Accordingly, the trial court granted summary judgment to Arlington and Tucker on Counts I and II of GCB’s complaint.

GCB appealed the ruling to this Court and argued that there was an issue of fact about whether it had rebutted the presumption mentioned above; neither Arlington nor Tucker cross-appealed. In response, Arlington and Tucker moved to dismiss the appeal and argued that GCB’s appeal was moot because GCB failed to challenge the trial court’s grant of summary judgment under OCGA §§ 11-9-608 (b) and 11-9-615 (e). This Court granted the motion and dismissed GCB’s appeal, and the Supreme Court denied certiorari. Following the remittitur, GCB and Arlington/Tucker voluntarily dismissed some of their remaining claims and cross-claims and filed cross-motions for summary judgment or to dismiss all claims remaining between them except for Counterclaim I (UCC damages for lost surplus value).

The trial court granted summary judgment in favor of Arlington and Tucker on GCB’s four remaining claims: Count V (breach of fiduciary duty against Tucker), Count VI (fraud against Tucker), Count VII (punitive damages against Tucker), and Count VIII (attorney fees against Arlington and Tucker). These four claims arose out of GCB’s allegation that leading up to the 2007 and 2008 renewals of the Arlington Note, Tucker, on behalf of Arlington and himself, failed to disclose asset transfers valued at approximately $6 million, which reduced Arlington and Tucker’s ability to meet their financial obligations, and that GCB would not have agreed to the 2007 and 2008 renewals had it known the truth. In its first enumeration of error, GCB appeals the grant of summary judgment as to GCB’s remaining claims. In its second enumeration, GCB contends the trial court erred by denying GCB summary judgment on Counterclaims II, III, and VIII.

1. GCB contends the trial court erred by concluding that the court’s earlier ruling on Counts I (breach of the Arlington Note) and II (breach of Tucker’s guaranties) barred GCB from recovering on its breach of fiduciary duty claim (Count V), its fraud claim (Count VI), or its punitive damages and attorney fee claims (Counts VII and VIII). GCB also contends that the trial court erred in concluding that it cannot prevail on the tort claims because there is no evidence of a fraudulent misrepresentation or evidence that Tucker owed a fiduciary duty to GCB.

(a) Pretermitting whether the trial court properly concluded that GCB’s sale of collateral in 2010 constituted a full and final satisfaction of all debts it was owed by Arlington and Tucker and, thus, eliminated any damages that GCB may have suffered from their alleged fraud, the trial court did not err in concluding that GCB presented no evidence of any material misrepresentation by Arlington or Tucker and, as a result, cannot prevail on its fraud claim.

First, as to GCB’s claim that Tucker fraudulently failed to notify it that he had transferred the “River Club property” to his wife in April 2007, this assertion ignores the fact that Tucker never listed the “River Club property” as collateral for the note in his financial statements. In fact, each of the financial statements listed some, but not all, of the following parcels of real estate as Tucker’s assets: “Ga. 120/1-85”; “St. Andrews Sq. (res)”; “Beverage Superstore”; “Sea Island (res)”; “70 ac. Ga. 20”; “Lake Burton (res)”; “One Acre 1-85”; “Suwanee Station Shopping Center”; “Hwy. 53 Forsyth/Dawson”; “Webb 20”; and “Coldwater Creek (156 acres).”

Although the dissent contends that there is a “sufficient link for purposes of summary judgment” to find that the “River Club property” was identified in the financial statements as “St. Andrews Sq. (res),” the only evidence upon which it relies to support such a finding is a statement in the affidavit of GCB’s president, John Martin, in which he averred that the property transferred by Tucker in April 2007 had “a reported value of $650,000, but [was] worth far in excess of that,” and was listed on Tucker’s 2008 financial statement. Significantly, however, Martin did not state that the “River Club property” was, in fact, listed on the financial statements as “St. Andrews Sq. (res.).” Even so, because the “St. Andrews Sq. (res)” property was the only property listed on the 2008 financial statement as having a value of $650,000 (albeit with an outstanding mortgage of $240,000), the dissent contends that this is sufficient for a jury to find that the financial statement’s reference to “St. Andrews Sq. (res)” must refer to the same parcel of property that has otherwise been consistently referred to as the “River Club property” in this litigation. We conclude, however, that Martin’s affidavit statement is legally insufficient to support a finding that the parcels are the same. See Isbell v. Credit Nation Lending Svc., 319 Ga. App. 19, 25 (2) (a) (ii) (735 SE2d 46) (2012) (“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”) (citation and punctuation omitted). Thus, the trial court did not err in concluding that Tucker did not list the “River Club property” as collateral for the note in his financial statements. And, as the trial court found, it follows that GCB could not have relied on his ownership of the “River Club property’ as a basis for making the loan to Arlington, and Tucker’s transfer of that property cannot support a fraud claim as a matter of law.

Second, there is no merit to GCB’s contention that Tucker’s 2008 financial statement contained a material misrepresentation. The cover sheet of the financial statement displays an effective date of January 10, 2008. It is undisputed that Tucker did not transfer the “Lake Burton property” or the “Sea Island property” until June 27, 2008. There is no evidence in the record that the 2008 financial statement did not accurately reflect Tucker’s assets on January 10, 2008. Although the dissent adopts GCB’s argument that the financial statement purports to list Tucker’s assets as they existed in August 2008, when he provided the statement to the bank in conjunction with the annual renewal of the note, it relies solely on a statement in Martin’s affidavit that Tucker “represented [that the financial statement] was his current statement of financial condition” on the date he renewed the note. In support of that assertion, however, Martin referred only to a fax cover sheet dated August 21, 2008. Even when viewed in favor of GCB, the only logical inference from this assertion is that Tucker faxed his 2008 financial statement to the bank in August 2008, yet neither the fax cover sheet nor the 2008 financial statement makes any representation that the statement represents Tucker’s financial condition as it existed on the date he faxed it to the bank or on the date of the 2008 renewal. Accordingly, the dissent improperly relies on Martin’s unsupported assertion in finding that it was evidence that Tucker made such a representation to GCB. See OCGA § 9-11-56 (e) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.... When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”); Mimick Motor Co. v. Moore, 248 Ga. App. 297, 299 (1) (b) (546 SE2d 533) (2001) (“Bare conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment.”), citing Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga. App. 333, 336 (2) (a) (508 SE2d 750) (1998) (Affidavits that did not “constitute statements of facts” because they lacked “specificity as to times, places, party or parties, transactions, occasions, or events,” were insufficient to avoid summary judgment.); Collins v. West American Ins. Co., 186 Ga. App. 851, 852 (3) (368 SE2d 772) (1988) (“It is axiomatic that conclusory allegations by way of an affidavit will not be sufficient to avoid summary judgment”) (citation and punctuation omitted); Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879-880 (1) (b) (354 SE2d 204) (1987) (“[Cjonclusory allegations by way of an affidavit, unsupported by specific allegations of fact, will not be sufficient to avoid summary judgment. It is clearly the law that answers, depositions or affidavits containing mere legal conclusions and allegations present no issues of fact on a motion for summary judgment. An affidavit in contravention of a motion for summary judgment must state more than mere conclusions; it must state specific adverse facts.”) (citations and punctuation omitted); see also Kirkland v. Earth Fare, 289 Ga. App. 819, 822, n. 12 (658 SE2d 433) (2008) (Plaintiff’s conclusory allegations about the amount of damages he believed he had suffered and may suffer in the future were insufficient evidence of pecuniary damage to withstand a motion for summary judgment.).

Further, as the trial court ruled, “[i]f GCB required financial statements with an effective date that was the same as the delivery date, it should have demanded as much.” It failed to do so. Consequently, the trial court properly concluded that, “in the absence of any showing that the [2007 and 2008] financial statements were inaccurate as of their effective date[s], there can be no recovery for fraud, because there can be no showing of a misrepresentation.”

(b) With regard to breach of fiduciary duty, in general there is no fiduciary relationship between a borrower and a lender. See generally Russell v. Barnett Banks, Inc., 241 Ga. App. 672, 673-674 (527 SE2d 25) (1999). But,

[w]hen a corporation becomes insolvent, its directors are “bound to manage the remaining assets for the benefits of its creditors, and cannot in any manner use their powers for the purpose of obtaining a preference or advantage to themselves.”

Hickman v. Hyzer, 261 Ga. 38, 40 (2) (401 SE2d 738) (1991) (quoting Ware v. Rankin, 97 Ga. App. 837-838 (104 SE2d 555) (1958)). See also Randall & Neder Lumber Co. v. Randall, 202 Ga. App. 497, 499 (1) (414 SE2d 718) (1992) (when corporation is insolvent, officers and directors can be liable for preferential transfers of corporate assets to themselves). Nevertheless, and without deciding whether the above exception to the general rule applies for any other reason, we find no evidence in the record to show that Arlington was insolvent at the time that Tucker allegedly transferred personal assets to Tucker family members or Tucker-controlled entities for inadequate consideration in April 2007 or June 2008. GCB’s only related factual assertion is that Arlington had a negative net worth at the end of 2008. Accordingly, this claim must fail.

(c) It follows that, because GCB cannot prevail on its fraud and breach of fiduciary duty claims, the trial court properly granted summary judgment to Arlington and Tucker on GCB’s claims for punitive damages and attorney fees. DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 52 (5) (668 SE2d 737) (2008).

2. In its second enumeration of error, GCB contends the trial court erred by refusing to grant summary judgment in GCB’s favor on Counterclaims II, III, and VIII. For the purposes of this Division, relevant disputed facts will be construed in favor of Arlington and Tucker.

(a) GCB contends Counterclaims II and III are preempted by the remedy provided by the UCC for lost surplus value, which remedy Arlington seeks under Counterclaim I and that Arlington cannot prove the requisite elements of either claim. We agree because, under the “law of the case” rule, Arlington, like GCB, is bound by the trial court’s determination that OCGA §§ 11-9-608 (b) and 11-9-615 (e) apply to this action.

(i) In Counterclaim II, Arlington claimed that GCB converted the alleged surplus value of the Shiloh Woods collateral and that it was entitled to return of the surplus as well as punitive damages. A general provision of the UCC provides that unless “displaced” by a particular provision of the UCC, other law supplements the law of the UCC:

Unless displaced by the particular provisions of this title, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.

OCGA § 11-1-103. Thus, we must determine whether Arlington’s claim of conversion is displaced by its remedy for the alleged loss of the surplus under the UCC.

As a result of the first appeal, the trial court’s initial summary-judgment ruling on Counts I and II of GCB’s complaint became the law of the case.

The effect of the dismissal of the first appeal from an appealable judgment was to affirm the judgment of the trial court there excepted to and the trial court was without authority to vacate or alter such prior judgment which was res judicata between the parties.

(Citations omitted.) Aetna Cas. & Surety Co. v. Bullington, 227 Ga. 485 (2) (181 SE2d 495) (1971); Potter-Miller v. Reed, 302 Ga. App. 199, 200 (2) (690 SE2d 215) (2010) (same). See also OCGA § 9-11-60 (h) (“[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case maybe.”); see generally State v. Lejeune, 277 Ga. 749, 756 (3) (B) (594 SE2d 637) (2004) (The law-of-the-case doctrine applies only when the same issue has been actually litigated and decided.).

Here, the trial court’s first summary judgment order established that OCGA §§ 11-9-608 (b) and 11-9-615 (e) apply to the parties’ dispute, thereby precluding GCB from seeking a deficiency judgment. Thus, regardless whether either OCGA §§ 11-9-608 (b) or 11-9-615 (e) would apply to the facts of this case absent the trial court’s prior ruling, the parties are bound by that ruling.

These two Code subsections, when applicable, provide a specific remedy governing both the deficiency and the surplus: “the debtor is not entitled to any surplus, and the obligor is not liable for any deficiency.” OCGA §§ 11-9-608 (b); 11-9-615 (e). See also OCGA § 11-9-318 (a) (“A debtor that has sold an account, chattel paper, payment intangible, or promissory note does not retain a legal or equitable interest in the collateral sold.”). Arlington and Tucker were well aware of this law when they sought to dismiss GCB’s first appeal. In their motion to dismiss, Arlington and Tucker informed this Court that their first motion for summary judgment asserted that under OCGA §§ 11-9-608 (b) and 11-9-615 (e), “[GCB] was not entitled to a deficiency and [Arlington and Tucker] were entitled to receive no surplus.” (Emphasis supplied.) Having prevailed on this argument, Arlington and Tucker are bound by it.

It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. A party cannot now complain of a result he aided in causing, because induced error is not an appropriate basis for claiming prejudice.

(Citations and punctuation omitted.) Camp Cherokee v. Marina Lane, LLC, 316 Ga. App. 366, 371 (2) (729 SE2d 510) (2012).

Thus, because the decision to apply OCGA §§ 11-9-608 (b) and 11-9-615 (e) to the parties’ claims constitutes law of the case, Arlington is not entitled to recover any alleged lost surplus value of the Shiloh Woods collateral. Yet in its conversion claim, Arlington seeks to recover the alleged lost surplus value. If Arlington were allowed to pursue a claim of conversion, it would be allowed to recover damages which it is not authorized to recover under the law of the case. Accordingly, under the unique and specific circumstances of this case, OCGA §§ 11-9-608 (b) and 11-9-615 (e) displace Arlington’s common-law remedy of conversion of the alleged lost surplus value of the Shiloh Woods Note and Deed. GCB was therefore entitled to summary judgment on Counterclaim II.

(ii) In Counterclaim III, Arlington alleged that GCB breached the 2008 security agreement associated with the 2008 renewal of the Arlington Note and Deed by failing to comply with the Georgia UCC notice provision addressed above and by breaching “other [unspecified] provisions” of that security deed. In its appellate brief, Arlington explains that GCB breached its contractual duty to “protect and preserve” any of Arlington’s collateral that GCB came to possess. As damages, GCB seeks precisely the same alleged loss surplus value as sought in Counterclaims I and II. The UCC provides that “[w]hether an agreement has legal consequences is determined by the provisions of this title, if applicable; otherwise by the law of contracts.” OCGA § 11-1-201 (3). Here, as established by the law of the case, OCGA §§ 11-9-608 (b) and 11-9-615 (e) displace Arlington’s alternate remedies and provide that Arlington may not recover any surplus. Therefore, GCB was entitled to summary judgment on Counterclaim III.

(b) In Counterclaim VIII, Arlington asserted claims of breach of contract, fraud, and invasion of privacy arising out of its allegation that GCB knowingly breached federal privacy laws and an online “privacy statement” when GCB communicated with Shiloh Woods regarding the disposition of the Shiloh Woods Note and Deed.

With regard to Arlington’s allegation that GCB has violated federal privacy laws, Arlington has failed to cite any federal law to support its argument either in the trial court or on appeal.

With regard to the “privacy statement,” GCB asserted that none of the contracts between the parties contain a “privacy” clause, and Arlington has failed to rebut that assertion. Arlington counters that GCB breached its online privacy statement, and Arlington attached a copy of that statement to a brief in the trial court. A review of that statement shows that the statement applies only to consumer customers, however:

This is our privacy notice for our customers. When we use the words “you” and “your” we mean the following types of customers: Our consumer customers who have a continuing relationship by purchasing or holding financial products or services such as a(n): Deposit account [,] Loan account [,] Credit card account[,j Safe deposit box[,] Self-directed Individual Retirement Account[,] Mortgage brokerage services[.]

The provisions of the privacy statement upon which Arlington relies begin with “you” or “your.”

Black’s defines “consumer” as “A person who buys goods or services for personal, family, or household use, with no intention of resale; a natural person who uses products for personal rather than business purposes.” Black’s Law Dictionary (9th ed. 2009). See also Merriam-Webster.com (“a person who buys goods and services”). OCGA § 44-14-260 (found in Chapter 14, which governs “Mortgages, Conveyances to Secure Debt, and Liens”) defines a “commercial transaction” as “a transaction which gives rise to an obligation to pay for goods sold or leased, services rendered, or moneys loaned for use in the conduct of a business or profession and not for personal consumption”; the same Code section defines a “consumer transaction” as “the sale, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes.” Thus, a plain reading of GCB’s online privacy statement shows that it does not apply to Arlington, a self-described provider of mezzanine financing to residential and commercial real estate developers in Georgia.

All of Arlington’s claims in Counterclaim VIII are based on the applicability of unspecified federal law or the GCB privacy statement, and therefore the entire counterclaim fails as a matter of law. The trial court erred by failing to grant summary judgment in favor of GCB on that counterclaim.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and Miller, J., concur. Ray, J., concurs in judgment only. Andrews, P. J., Barnes, P. J., and Branch, J., concur in part and dissent in part as to Division 1 (a) and (c).

BRANCH, Judge,

dissenting.

I respectfully dissent to Division 1 (a) and (c) of the majority opinion because (1) GCB has raised an issue of fact regarding whether Richard Tucker made wilful misrepresentations of material fact or concealed material facts so as to deceive and mislead GCB regarding his assets and (2) the trial court erred by concluding that GCB could not show damages for fraud.

1. GCB’s claim of fraud (Count VI of its complaint) arose out of GCB’s allegation that leading up to the 2007 and 2008 renewals of the Arlington Note, Tucker, on behalf of Arlington and himself, failed to disclose asset transfers valued at approximately $6 million, which reduced Arlington and Tucker’s ability to meet their financial obligations, and that GCB would not have agreed to the 2007 and 2008 renewals had it known the truth.

More specifically, and construed in GCB’s favor as we must for the purposes of summary judgment, the facts relevant to GCB’s claims of fraud and breach of fiduciary duty are that Arlington, in each annual promissory note signed by Tucker on behalf of Arlington, warranted that “the financial statements and information I provide to you are or will be accurate, correct and complete”; that in July or August of each year, at the inception of the loan and for each renewal, Tucker provided GCB with personal financial statements dated January of that same year; that GCB relied on these financial statements to renew the loan each year; that Tucker’s January 2009 financial statement reflected that Tucker had disposed of one parcel of property prior to the August 2007 renewal of the Arlington Note and disposed of two other parcels of real property prior to the August 2008 renewal (with the three parcels valued at $6 million in total); that neither Arlington nor Tucker informed GCB, and GCB was not aware, of the disposal of the property prior to the relevant renewals; that one of the parcels was, in fact, transferred on April 20, 2007 but not reflected on the January 2008 financial statement; that two of the parcels were transferred on June 27,2008, but GCB was not informed of these transfers prior to the August 2008 renewal of the Arlington Note; that Tucker did not deliver the January 2008 financial statement to GCB until August 20, 2008, after all three parcels had been transferred, yet Tucker represented that the January 2008 statement reflected his financial condition as of August 2008; that the three parcels were transferred to Tucker family members or Tucker-controlled entities for inadequate consideration, thereby depleting Tucker’s net worth to a material degree; that GCB would not have renewed the Arlington Note in 2007 or 2008 had it known that Tucker had so disposed of the property; and that GCB was damaged as a result because if it had not renewed the Arlington Note in 2007 or 2008, it would have recovered more than it did from the disposition of the Shiloh Woods collateral in 2012.

The above factual allegations, construed in favor of GCB, create an issue of fact as to whether Tucker made wilful misrepresentations of material fact or concealed material facts so as to deceive and mislead GCB. See OCGA § 51-6-2 (a) (“Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action. Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action.”).

The two failures in GCB’s facts found by the majority are belied by the record. First, John Martin, GCB’s president, provided in his affidavit a sufficient link for purposes of summary judgment to match the property transferred on April 20, 2007, which was allegedly falsely listed on Tucker’s January 2008 financial statement, with an entry on that same financial statement: Martin averred that the property was listed on that statement with a value of $650,000, and only one property is listed with that value; and Martin swore that the deed attached to his affidavit, dated April 20, 2007, represented the property listed as worth $650,000. GCB’s complaint also refers to the same deed, which is attached and incorporated into the complaint. The fact that GCB’s complaint refers to the same deed as the “River Club Property” and the financial statement refers to it as “St. Andrews Sq.” is a red herring. Martin’s affidavit links the same deed referred to in the complaint with the $650,000 entry on the financial statement based on his “personal knowledge” of the properties listed by Tucker on his financial statements. Thus, Martin’s affidavit is not based on guesses or speculation. It is the majority that discounts the fact that Martin made an affidavit based on his personal knowledge with the transaction at hand that puts a material fact at issue.

The majority’s second line of attack also discounts Martin’s affidavit. The majority concludes that GCB could not have relied on the January 2008 financial statements because the 2008 annual renewal of the Arlington Note and Deed occurred in August of that year. But Martin specifically averred that Tucker represented that his financial statements dated January 2008 reflected his financial condition as of August of that year:

Mr. Tucker did not deliver [the financial statements] dated January of 2008 to [GCB] until August 20, 2008, and represented it was his current statement of financial condition at that time for purposes of renewing the loan on August 20, 2008.

It simply does not matter that Martin did not refer to this representation in the cover sheet for the faxed financial statement. Martin did not state that the representation occurred in that document. His affidavit simply states that Tucker represented a specific fact. A statement that someone made a representation is a far cry from a “bare conclusion” (as the majority claims). The majority apparently finds Martin’s statement incredible or that he could not possibly have personal knowledge of any such fact. “A movant for summary judgment has not met his burden where a material issue can be eliminated only by making credibility judgments.” Stevenson v. City of Doraville, 294 Ga. 220, 223-224 (2) (751 SE2d 845) (2013). A witness’s uncontradicted testimony cannot simply be disbelieved in order to ehminate the evidence it provides. Id.

On summary judgment, the movant is required to show that there was no genuine issue of material fact. See Johnson v. Omondi, 294 Ga. 74, 78 (751 SE2d 288) (2013). Tucker has not met this burden. I would reverse the grant of summary judgment on GCB’s claim of fraud. And, because GCB’s claim of fraud survives, its claims for punitive damages and attorney fees should also survive because they arise out of the same allegation of fraud. Stephen A. Wheat Trust v. Sparks, 325 Ga. App. 673, 681 (7) (754 SE2d 640) (2014); Daimler-Chrysler Motors Co. v. Clemente, 294 Ga. App. 38, 52 (5) (668 SE2d 737) (2008). See also OCGA § 13-6-11 (expenses of litigation allowed “where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith”).

2. The trial court also erred by concluding that GCB could not show damages for fraud.

In the summary judgment order now on appeal, the trial court found that GCB’s claim of fraud was barred by the court’s earlier grant of summary judgment on Counts I and II. Specifically, the trial court found as a matter of law that GCB could not prove it suffered any damage as a result of any breach of fiduciary duty or fraud in connection with the 2007 and 2008 renewals because (1) the trial court’s earlier order represented a full satisfaction of all debts owed by Arlington or Tucker to GCB under the Arlington Note and Tucker guaranty; (2) the value recovered through the exchange of the Shiloh Woods Note equaled the debt owed to GCB and, therefore, “it is axiomatic that all sums GCB could have recovered from Arlington... and Tucker have been satisfied in full”; (3) GCB could show no damages related to its breach of fiduciary duty or fraud claims for the above reasons; (4) GCB’s fraud claim also fails because there is no evidence in the record of a misrepresentation of fact; and (5) GCB’s claims for punitive damages and attorney fees are dependent on the claims of breach of fiduciary duty and fraud, and therefore GCB could not recover on those claims either.

As the majority has held, the trial court’s first summary judgment order is law of the case, andit established that OCGA §§ 11-9-608 (b) and 11-9-615 (e) apply to the parties’ dispute and that GCB was precluded from seeking a deficiency judgment. Nevertheless, the “law of the case” rule “applies only to actual decisions, not to issues raised but never ruled upon.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001) (punctuationandfootnoteomitted). See also State v. Lejeune, 277 Ga. 749, 756 (3) (B) (594 SE2d 637) (2004) (law of the case doctrine applies only when the same issue has been actually litigated and decided). Here, because no aspect of GCB’s fraud claim was litigated in the prior motion for summary judgment, GCB is not barred by the law of the case from pursuing Counts V through VIII of its complaint.

Furthermore, GCB was free to pursue inconsistent remedies. The terms of the 2008 renewal of the Arlington Note specifically provide that GCB, upon default, may pursue any of its remedies under the contract or under state or federal law and that “[b]y selecting any one or more of these remedies [GCB does] not give up [its] right to later use any other remedy.” See also OCGA § 9-11-8 (e) (2) (“A party may also state as many separate claims or defenses as he has, regardless of consistency and whether based on legal or on equitable grounds or on both.”); Utica Mut. Ins. Co. v. Kelly & Cohen, Inc., 233 Ga. App. 555, 556 (504 SE2d 510) (1998) (“alternative pleading is expressly authorized by OCGA § 9-11-8 (e) (2), regardless of any inconsistencies that may exist between the two causes of action”) (citation omitted). Nor is GCB barred by the UCC from raising a claim of fraud. See OCGA § 11-1-103 (unless displaced by a particular provision of the UCC, the principles of law and equity, including fraud, shall supplement the law of the UCC).

With regard to damages, although a party may pursue inconsistent remedies — for example, in contract and tort — he or she “is not permitted a double recovery of the same damages for the same wrong. He is entitled to only one satisfaction of the same damages, in either contract or tort.” Flanigan v. Executive Office Centers, 249 Ga. App. 14, 16 (1) (546 SE2d 559) (2001) (citations omitted); Marvin Nix Dev. Co. v. United Community Bank, 302 Ga. App. 566, 568 (692 SE2d 23) (2010) (same). See also Ingles Markets v. Kempler, 317 Ga. App. 190, 194 (2) (730 SE2d 444) (2012) (“the plaintiff is entitled to only one recovery and satisfaction of damages, because such recovery and satisfaction is deemed to make the plaintiff whole”) (punctuation and footnote omitted). It has not been established in this case that GCB has been made whole on its claim of fraud. Although GCB lost the opportunity to pursue its contract claim to verdict, it has alleged an independent claim of fraud. And “[g]eneral damages awarded on a fraud claim may cover a broader range of damages than those awarded on contract claims.” Cavin v. Brown, 246 Ga. App. 40, 43 (2) (a) (538 SE2d 802) (2000) (footnote omitted); OCGA § 51-12-2 (a) (“General damages are those which the law presumes to flow from any tortious act; they may be recovered without proof of any amount.”).

Moreover, where a party successfully pursues inconsistent remedies, he or she “is only required to make an election prior to judgment if inconsistent verdicts are rendered.” St. Paul Fire & Marine Ins. Co. v. Clark, 255 Ga. App. 14, 17 (1) (566 SE2d 2) (2002) (citations omitted). See also OCGA § 9-2-4 (“A plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.”); Marvin Nix Dev. Co., 302 Ga. App. at 568. It follows that the fact that GCB lost its claim on the Arlington Note and Tucker guaranties as a result of failing to provide the notice required by the UCC does not constitute an election of remedies. Cf. Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522 (1) (428 SE2d 426) (1993) (court erred by concluding that grant of summary judgment on breach of warranty claim precluded appellant from pursuing alternative theory of fraud at trial). Nor does the record establish that the amount GCB received by way of the disposition of the Shiloh Woods Note and Deed was equal to or greater than the amount of compensatory damages sought by GCB in its fraud claim against Tucker. Finally, if GCB is successful on its fraud claim, any damages would be offset by the value it received in the sale/exchange of the Shiloh Woods Note and Deed.

Decided March 28, 2014.

Stites & Harbison, J. D. Humphries III, R. Daniel Douglass, Ron C. Bingham II, for appellant.

Mahaffey Pickens Tucker, Steven A. Pickens, Gerald Davidson, Jr., Andrew D. Standi, for appellees.

For these reasons, I respectfully dissent. I am hereby authorized to state that Presiding Judge Andrews and Presiding Judge Barnes join in this dissent.

       OCGA § 11-9-611 (b) provides in full:
      Except as otherwise provided in subsection (d) of this Code section, a secured party that disposes of collateral under Code Section 11-9-610 shall send to the persons specified in subsection (c) of this Code section a reasonable authenticated notification of disposition.

       Arlington’s remaining counterclaims are not relevant to this appeal.

       OCGA § 11-9-608 (b) provides in full:
      If the underlying transaction is a sale of accounts, chattel paper, payment intangibles, or promissory notes, the debtor is not entitled to any surplus, and the obligor is not liable for any deficiency.

       OCGA § 11-9-615 (e) provides in full:
      If the underlying transaction is a sale of accounts, chattel paper, payment intangibles, or promissory notes: (1) The debtor is not entitled to any surplus; and (2) The obligor is not liable for any deficiency.

       See generally OCGA § 5-6-38 (an “appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him”); The Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987) (“The general rule is that an appellee must file a cross-appeal to preserve enumerations of error concerning adverse rulings.”) (citations omitted).

       Notably, the financial statements specifically state that the list of assets and liabilities provided therein “represents all [of Tucker’s] liabilities but does not include all [of his] assets.”

       The 2008 promissory note does include the following provision: “I agree to provide you, upon request, any financial statement or information you may deem necessary. I warrant that the financial statements and information I provide to you are or will he accurate, correct and complete.” As shown above, however, there is no evidence that the 2008 financial statement was not “accurate, correct and complete” as of its effective date, January 10, 2008.

       In fact, as shown above, the note expressly authorized GCB to demand more recent financial information before it renewed the note in August 2008. See footnote 7, supra.

       Counterclaim I (damages under the UCC for lost surplus value) remains pending below.

       “Displace” has been defined to mean “to occupy the place of; replace; supplant.” Collinsdictionary.com. See also Merriam-Webster.com (“to take the place of...: supplant”).

       OCGA §§ 11-9-608 and 11-9-615 provide rules for application of proceeds of “collection and enforcement” and “disposition” respectively; arguably, only one of the two could apply to this case. Moreover, each Code section establishes rules for handling two types of security interest. OCGA §§ 11-9-608 (a) and 11-9-615 (d) each provide that when a “security interest... secures payment or performance of an obligation,” the obligor is liable for any deficiency and the debtor is entitled to any surplus. In contrast, OCGA §§ 11-9-608 (b) and 11-9-615 (e) each provide that when “the underlying transaction is a sale of accounts, chattel paper, payment intangibles, or promissory notes,” the obligor is not entitled to a deficiency and the debtor is not entitled to a surplus. See also OCGA § 11-9-318 (a) (“A debtor that has sold an account, chattel paper, payment intangible, or promissory note does not retain a legal or equitable interest in the collateral sold.”). Without deciding the issue, it appears to this Court that the “underlying transaction” referred to in OCGA §§ 11-9-608 (b) and 11-9-615 (e) is the transaction associated with the creation of the security interest, not the post-default disposition of collateral subject to that security interest. See OCGA § 11-1-201 (37) (“ ‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation. The term also includes any interest of a consignor and a buyer of accounts, chattel paper, a payment intangible, or a promissory note in a transaction that is subject to Article 9 of this title.”). See also 4 White, Summers & Hillman, Uniform Commercial Code § 34-5 (6th ed.) (“If the [debtor] signs a note promising to repay the bank’s ... loan and a document titled ‘security agreement,’ we have a secured loan, not a sale of chattel paper. . . .”).

       The doctrines of collateral estoppel and res judicata are inapplicable “because both require a previous action between the same parties, and the trial court’s orders came in the same action now on appeal.” State v. Mizell, 288 Ga. 474, 478 (3) (705 SE2d 154) (2010), citing Slakman v. State, 280 Ga. 837, 841 (2) (c) (632 SE2d 378) (2006).

       There is an issue of fact regarding the value, just prior to its sale/exchange, of the Shiloh Woods Note and Deed.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A2404.
    DONALD AZAR, INC. v. MUCHE et al.
    (761 SE2d 345)
   DOYLE, Presiding Judge.

Donald Azar, Inc. (“Azar”) appeals from a superior court order adopting a special master’s report in Azar’s suit against Tefera Muche, Ayanaw Muche, and USA Parking, Inc. (collectively “USA Parking”), seeking to enjoin obstructions to an alleged private way. Finding no reversible error, we affirm.

Concurrent findings by a trial court and special master are entitled to great deference on appeal. Findings of fact will not be reversed unless they are clearly erroneous, and as long as there is any evidence in the record to support a particular finding, it will not be disturbed. By contrast, conclusions of law by a trial court and special master are subject to de novo review on appeal.

So viewed, the record shows that since 1959, Azar has owned a certain lot of real property, now vacant, east of Turner Field and bounded along a border by a former City of Atlanta public alley, Telford Alley, running north-south. Azar’s lot is located along the eastern side of the city block. Between 1991 and 1996, USAParking acquired all of the other lots in the block, including those along the eastern and western borders of the alley.

Since 1991, USA Parking used its property to operate surface parking for hire during sporting events. As part of its parking operations, USAParking made certain improvements to its property, including installing a fence within Telford Alley, which was not open or passable when USA Parking acquired its property in 1991. The alley did not have a curb cut, and it had been overgrown and unused since the 1970s. By 1997, USA Parking had acquired all of the lots abutting the alley, including property on both sides of the alley, except for Azar’s lot.

In 1998, USAParking applied to the City of Atlanta to re-zone its parcels from residential to commercial. Azar did not object to the re-zoning; instead, he signed the re-zoning application, authorizing Muche to act as his agent in pursuit of the application, and attended the public hearing to show support for the re-zoning.

In 1999, the Atlanta City Council adopted an ordinance re-zoning a portion of USA Parking’s property and a portion of Azar’s property. The ordinance incorporated a concept plan illustrating the alley as closed and fenced off by a wooden fence along with landscaping buffer. In accordance with the zoning plan, USA Parking constructed the fence, which separated Azar’s lot from the alley. Azar did not object to the fence, nor did he object to other improvements made by USA Parking within the closed alley, including cross ties, parking spaces, and utility lighting.

In 2001, Azar filed a suit in probate court seeking access to the alley so that he could drive cars across it to operate a parking service on the commercial portion of his property. He later dismissed this suit, and in 2006, Azar filed the instant suit, a petition in superior court to enjoin obstruction of a private way and for damages. USA Parking answered and filed a counterclaim, seeking a judgment declaring that USA Parking is the owner of the alley abutting its property, and that Azar did not have an easement in the alley. The superior court referred the case to a special master, who held an evidentiary hearing and prepared a proposed order in favor of USA Parking on the ground that Azar had abandoned any interest he had in the alley. Specifically, the special master concluded that USA Parking had title to the alley abutting its property, “insofar as each or any have an interest,” and subject to certain encumbrances of record and “any claim of right by any claimant not a party to [t]his lawsuit for issues not before the Special Master.” The superior court adopted the special master’s report and proposed order, and Azar filed this appeal.

1. Azar makes several arguments, but his appeal in essence asserts that the special master erred by concluding that he had abandoned any interest he had in the alley. For example, Azar argues that the special master applied an incorrect time period of nonuse to establish a presumption of abandonment, but this ignores the legal and evidentiary basis for the special master’s conclusions. The parties, special master, and trial court all treated the alley as abandoned by the City of Atlanta, and there is nothing in the record to dispute that finding. Indeed, one witness testified that the alley had been unused and overgrown, without any curb cut to provide access, since the 1970s. When a city abandons an alley, “the property revert[s] to the adjoining lots, with each lot expanding out to the centerline of the portion of the [ajlley abutting it.” Thus, at a minimum, when the alley became closed, USA Parking’s lots adjoining either side of the alley expanded to the centerline of the abutting portion of the alley. Accordingly, the special master did not err by so concluding.

Azar nevertheless argues that he was granted an implied easement to access the alley, based upon a reference to the alley in his deed. As stated in Pindar’s real estate hornbook, “[a] deed describing a tract as bounded by a street or alley will by operation of law confer upon the grantee a private easement for the use of such street or alley . . . ,” But

[a]n easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment. No presumption of abandonment arises from mere nonuse for a time of less than 20 years, as a matter of law. Although where an easement has been acquired by grant, a mere nonuse, without further evidence of an intent to abandon it, will not constitute an abandonment, intent to abandon can be established with evidence of a clear, unequivocal and decisive character. The issue is one for the [factfinder] to decide.

Here, there was evidence that the alley was unused since the 1970s before USA Parking first improved areas in the alley and blocked its use in 1991. There was further evidence that Azar consented to USA Parking’s improvements in the alley and supported a re-zoning plan that included fencing and other encroachments in the alley. Finally, there was evidence that Azar did not voice any objection to USA Parking’s use or improvements in the alley until his 2001 suit in probate court. Under these circumstances, the special master was authorized to find that Azar had abandoned his interest in the closed alley.

2. Azar also contends that he was granted an oral license to use the alley in exchange for his support of the re-zoning. But USA Parking disputed that any oral license was granted, and this evidentiary conflict was for the special master to resolve. Further, even if an oral license was granted, “[a] parol license to use another’s land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.” There is no evidence that Azar incurred expense in reliance on the alleged license; accordingly, this enumeration fails.

Decided March 7, 2014

Reconsideration denied April l, 2014

Furman Smith, Jr., for appellant.

Wilson, Brock & Irby, Kyler L. Wise, Stephen Rothman, for appellees.

3. Azar also challenged any interpretation of the special master’s ruling that would allow USA Parking to encroach on his property as it is defined in his deed. The special master’s ruling did not specifically address this issue, but we hold that any such encroachment would not be authorized by the rulings herein.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

On Motion for Reconsideration.

Azar has moved for reconsideration arguing that affirming the trial court’s judgment frustrates his right to address an alleged encroachment by USA Parking onto his property. But Azar’s complaint sought relief only with respect to the disputed portions of the alley — not Azar’s lot. Azar’s complaint did not raise a claim for trespass as to his own property, nor did it raise issues with respect to encroachment onto his property. Accordingly, the trial court’s judgment did not reach those issues, nor does this appeal.

Motion for reconsideration denied.

       Donald Azar, Inc., is the named party by virtue of being the owner of property relevant to this appeal. For purposes of this opinion, the term “Azar” is used to refer to the corporate entity and the man of the same name, as appropriate in the context.

       The appeal was originally filed in the Supreme Court of Georgia, based on that Court’s exclusive appellate jurisdiction in equity cases and in disputes over title to land. The Supreme Court transferred the case to this Court, stating that the case did not fit within the Court’s definition of “title to land” cases as set out in Graham v. Tallent, 235 Ga. 47 (218 SE2d 799) (1975).

       (Footnote omitted.) Second Refuge Church of Our Lord Jesus Christ, Inc. v. Lollar, 282 Ga. 721, 724 (2) (653 SE2d 462) (2007). See generally Washington v. Brown, 290 Ga. 477, 478 (722 SE2d 65) (2012) (“In an action to quiet title brought under OCGA § 23-3-60 et seq., the findings of the Special Master and adopted by the trial court will be upheld unless clearly erroneous. The trial court’s judgment will not be disturbed on appeal if there is any evidence to support it.”) (citation and punctuation omitted).

       We note that the City was not a party to this litigation, and the special master’s report explicitly disclaims any resolution to issues not before it.

        Cernonok v. Kane, 280 Ga. 272, 272 & n. 1 (627 SE2d 14) (2006), citing Bayard v. Hargrove, 45 Ga. 342, 352 (1872).

       We note that Cernonok addressed claims by adjacent property owners under color of title pursuant to deeds purporting to establish title in a disputed alley. In light of this, Azar argues that Cernonok does not apply, relying on language in the Supreme Court’s order transferring the case to this Court. But that reference was in the Court’s jurisdictional analysis, in which it explained that USA Parking “never contended that they actually held legal title to the alley, nor did they seek to recover possession of the alley from [Azar].” This distinction is relevant to the jurisdictional analysis, because the Supreme Court’s exclusive appellate jurisdiction extends to “actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land.” (Punctuation omitted; emphasis supplied.) Graham, 235 Ga. at 49. As the Supreme Court pointed out, USAParking did not assert present legal title to the alley to recover the land from Azar’s allegedly wrongful possession, and thus jurisdiction was proper in this Court. Nevertheless, USAParking’s counterclaim did seek a declaratory judgment establishing title in itself based on its ownership of property along both sides of the abandoned alley. Thus, the Supreme Court’s jurisdictional rationale does not render inapposite the rule of law in Cernonok.

       1 Pindar’s Ga. Real Estate Law & Procedure § 8:14 (7th. ed.).

       (Citations and punctuation omitted; emphasis supplied.) Duffy St. S.R. O. v. Mobley, 266 Ga. 849 (1) (471 SE2d 507) (1996).

       See id. at 849-850 (1) (finding sufficient evidence to support a finding of abandonment even where evidence was “sharply conflicted”).

       See Meinhardt v. Christianson, 314 Ga. App. 705, 710 (2) (b) (725 SE2d 828) (2012) (“Because there was some evidence to show that [the defendant] never agreed to a parol license to use the way, the trial court’s order must be affirmed.”).

       OCGA § 44-9-4.


author: ELLINGTON, Presiding Judge.

text:
    A14A0566.
    THE STATE v. LEATHERWOOD.
    (757 SE2d 434)
   ELLINGTON, Presiding Judge.

Pursuant to OCGA § 5-7-1 (a) (1), the State of Georgia appeals from an order of the State Court of Clayton County, which granted Ed Daniel Leatherwood’s special demurrer as to all six counts of the accusation against him. The State contends that the trial court erred in dismissing Counts 1, 2, and 5 of the accusation. We agree and reverse the trial court’s order with respect to those counts.

We review rulings on special demurrers de novo. State v. Pittman, 302 Ga. App. 531 (690 SE2d 661) (2010). Moreover, we do not conduct a harmless error analysis to determine if the accused has actually been prejudiced by the lack of specificity in an indictment or accusation when our review is made before trial. State v. Gamblin, 251 Ga. App. 283, 284 (1) (553 SE2d 866) (2001). “[Rjather, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment [or accusation] perfect in form and substance.” State v. Delaby, 298 Ga. App. 723, 724 (681 SE2d 645) (2009).

At issue in this appeal are the following counts of the accusation. In Count 1, the State charged Leatherwood

with the offense of BATTERY-FAMILY VIOLENCE, for that the accused, on the 3rd day of June, 2011, in Clayton County, Georgia, did intentionally cause visible bodily harm, to wit: bruised bloody lip, to the person of Loretta Walker, said person and the accused were at the time of the battery living in the same household, by striking her.

In Count 2, the State charged Leatherwood

with the offense of BATTERY, for that the accused, on the 3rd day of June, 2011, in Clayton County, Georgia, did intentionally cause visible bodily harm, to wit: a bruised bloody lip, to Loretta Walker by striking her.

And, in Count 5, the State charged Leatherwood

with the offense of CRIMINAL TRESPASS, for that the accused, on the 3rd day of June, 2011, in Clayton County, Georgia, did intentionally damage a closet door, the property of Loretta Walker, without her consent, by punching a hole in the door, said damage being less than $500.00.

Leatherwood argues on appeal that the trial court properly found that these counts are imperfect as to form and that they fail to fully inform him of the crimes charged so that he may prepare a defense or so that he may protect himself from another prosecution for the same offenses. Specifically, as to Counts 1 and 2, Leatherwood argued below that the accusation did not put him “on notice of any weapon, tool, instrument, or part of his body he allegedly employed” in causing the victim’s injury. With respect to Count 5, Leatherwood argued that the accusation failed to inform him of the instrument or method by which he caused damage to the victim’s closet door.

Although the counts at issue are awkwardly worded, they contain no defect as to form or substance. The accusation correctly identifies the crimes charged; it identifies when and where the crimes occurred; it identifies the victim; and it lists the material elements of each of the named offenses. The accusation also specifies the manner in which Leatherwood battered the victim (by striking her and injuring her lip) and the manner in which he committed a criminal trespass (by punching a hole in the victim’s closet door). Concerning the form of the accusation, “[ejvery accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct.” OCGA § 17-7-71 (c). The counts at issue satisfy this basic requirement. Moreover, unlike the accusation in D’Auria v. State, 270 Ga. 499, 500-501 (1) (512 SE2d 266) (1999), the instant accusation does not present Leatherwood with a vague set of facts and circumstances that do not allow him to determine which of his acts are alleged to be criminal in nature. To the contrary, the criminal acts in this case are clearly identified: striking the victim’s lip, causing visible injury to it; and, punching a hole in the victim’s closet door.

The question posed by this appeal, then, is whether Leatherwood was entitled to an accusation that identified what he used to strike the victim’s lip and to punch her closet door. As we have explained,

the true test of the sufficiency of an indictment [or accusation] to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it... sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Punctuation and footnote omitted.) State v. Barnett, 268 Ga. App. 900, 901 (1) (602 SE2d 899) (2004). None of the crimes charged require proof that Leatherwood used any specific object or weapon to cause the injury or damage alleged. Whether Leatherwood struck the victim’s lip with his fist or with a shoe does not materially affect what he must be prepared to meet at trial. The issue the jury must resolve will be whether he intentionally struck the victim, causing visible injury to her lip. The same is true for the criminal trespass count — did Leatherwood intentionally punch a hole in the victim’s closet door? The resolution of that question does not turn on whether Leatherwood used his fist or a hammer. And, if, after jeopardy has attached, any other proceedings are taken against Leatherwood for offenses arising out of this incident, the record shows with accuracy to what extent he may plead a former acquittal or conviction because the accusation sets forth specific acts arising from a specific event and adequately defines the offenses of battery, family violence battery, and criminal trespass to property. Thus, the State would not be able to bring a new prosecution for a crime arising out of the same criminal conduct by drafting an accusation that charged Leatherwood with a new offense simply by recasting the battery allegations in terms of striking the victim or her closet door with an object. Consequently, the court erred in granting Leatherwood’s special demurrer as to these counts.

Judgment reversed in part.

Phipps, C. J., and McMillian, J., concur.

Decided April 1, 2014.

Tasha M. Mosley, Solicitor-General, Keith E. Gammage, Assistant Solicitor-General, for appellant.

Keith C. Martin, for appellee.-

       The State does not challenge the court’s decision as to Counts 3, 4, and 6.

       “Aperson commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). The pertinent elements of simple battery are “intentionally causing] physical harm to another.” OCGA § 16-5-23 (a) (2). The pertinent element of family violence battery is that the offense of battery be committed by “persons living or formerly living in the same household[.]” OCGA § 16-5-23.1 (f). And a “person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less[.]” OCGA § 16-7-21 (a).

       Specifically, the indictment in D’Auria failed to identify which of the victim’s body parts the defendant, a physician treating the victim following a car accident, allegedly touched without the victim’s consent, failed to identify the manner in which the touching allegedly occurred, and did not recite all the elements of the crime. D’Auria v. State, 270 Ga. at 500-501 (1).

       The Fifth Amendment to the United States Constitution and the Georgia Constitution prohibit the government from placing a defendant in jeopardy twice for the same offense once he has been convicted or acquitted, and also prohibit multiple punishments for the same offense. Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII; Garrett v. State, 306 Ga. App. 429, 430 (702 SE2d 470) (2010). Georgia has by statute extended the prohibition of double jeopardy beyond those substantive constitutional limits by placing procedural bars on multiple prosecutions arising out ofthe same criminal conduct. OCGA §§ 16-1-6,16-1-7,16-1-8; Stone v. State, 166 Ga. App. 245 (1) (304 SE2d 94) (1983). OCGA §§ 16-1-7 (a) and 16-1-8 (a) codify the principle of substantive double jeopardy in that they bar multiple convictions or prosecutions for crimes arising from the same criminal conduct. OCGA § 16-1-8 (b) “embraces the concept of res judicata and is not constitutional double jeopardy, but is protection against subsequent prosecution where the defendant could have been, and under... OCGA § 16-1-7 (b), should have been prosecuted on a former prosecution.” (Emphasis supplied.) McCannon v. State, 252 Ga. 515, 517 (315 SE2d 413) (1984). In this case, the facts would be sufficient to allow Leatherwood to invoke his rights under these constitutional and statutory provisions.


author: Dillard, Judge.

text:
    A13A1737.
    TARGET CORPORATION v. AMERSON et al. GREEN et al. v. AMERSON et al.
    A13A1738.
    (755 SE2d 333)
   Dillard, Judge.

In these companion cases, Charlotte and Micah Green and Target Corporation appeal from a verdict in which the jury concluded that the Greens and Target conspired to convey a piece of real property with the intent of defrauding Kennon Amerson d/b/a South Coast Builders and South Georgia Coast Builders, LLC (collectively, “Amerson”), a judgment creditor of the Greens. The Greens and Target assert that (1) Amerson failed to present any evidence of fraud and, therefore, they are entitled to judgment as a matter of law (i.e., that the trial court erred in denying their motions for directed verdict); and (2) Amerson’s judgment lien was improper and the trial court erred in failing to rule on that issue. And because we agree that the evidence is insufficient to sustain the jury’s verdict of fraudulent conveyance as a matter of law, we reverse the judgment.

The facts of this case are essentially uncontroverted. In January 2007, the Greens contracted with Amerson, a general contractor, for the construction of their home in McIntosh County, Georgia (the “Property”). Thereafter, a dispute between the parties arose, and in December 2007, Amerson filed suit against the Greens.

At all times relevant to this case, Charlotte Green was employed by Target. And in the fall of 2008, Charlotte—who transferred to Georgia for the purpose of opening a distribution center—was approached by her manager and asked if she would be willing to relocate to North Carolina to open yet another distribution center. Charlotte had not tendered her name for consideration when Target announced the job opening, but her manager nonetheless asked her to consider taking the position based upon her success in opening the Georgia facility. She expressed some interest in the move, and agreed to discuss the matter further with her husband. Charlotte also informed her manager (during this same conversation) that she was engaged in ongoing litigation with Amerson, indicating that she would need to explore what impact, if any, the litigation would have on her ability to relocate.

Before making a final decision to accept the position in North Carolina, Charlotte consulted with Target’s relocation department, a team dedicated to providing assistance to Target’s relocating employees. And this consultation resulted in an agreement to appraise the Greens’ Property in order to assess the feasibility of such a move. Specifically, the relocation department placed the Greens in contact with Target’s relocation agent, Plus Relocation Services, Inc. (“Plus Relocation”), with whom Target contracted for the real-estate component of its relocation packages—i.e., to aid employees in establishing the value of their homes, to assist them in selling their homes, and/or to facilitate Target’s buyout of their homes, so as to allow employee relocation without extensive delay. Then, in November 2008, Plus Relocation obtained two separate appraisals on the Greens’ Property; and, after averaging the two, it determined the fair-market value of the Property to be $356,000.

And while the appraisal value of the Property was nearly $26,700 less than the payoff price (due to an outstanding construction loan), Charlotte, nevertheless, decided to pursue the relocation. She then accepted the position, and was directed to report to work in North Carolina in February 2009.

In accordance with its standard relocation package, Target offered to purchase the Property from the Greens at the appraised fair-market value after the house was listed but failed to sell in 60 days. Then, in January 2009, Plus Relocation, on behalf of Target, ordered a title search on the Property and determined it to be free and clear of all liens and encumbrances (other than the Greens’ construction loan). The Greens were also informed that the delivery of an unencumbered title was a prerequisite to any sale.

But before the relocation was complete, the case between the Greens and Amerson went to a jury trial and, on February 5, 2009, Amerson obtained a money judgment against the Greens. The Greens filed a motion for new trial and subsequently appealed the judgment.

Immediately after the trial, Charlotte informed both Target and Plus Relocation of the judgment. And acting upon the advice of her legal counsel, she also informed them that the judgment was a monetary one against the Greens personally and did not impede the Greens’ ability to convey unencumbered title to the Property.

On March 26, 2009, Amerson filed its judgment lien on the general-execution docket in McIntosh County during the pendency of the Greens’ motion for new trial. Then, on March 30, 2009, Plus Relocation, on behalf of Target, ordered a revised title search on the Property in preparation for its purchase of the Property. Apparently due to the lag between the time of filing and the time it takes to appear on the docket, Amerson’s lien was not discovered during the revised title search, and the title analysis indicated that title on the Property remained clear.

Thus, unaware of the judgment lien, Plus Relocation, on behalf of Target, purchased the Property on May 4, 2009 for $356,000. And because Target’s purchase price was less than the payoff value of the construction loan, the Greens—who had already moved to North Carolina—paid the remaining loan balance of nearly $26,700 at closing.

The Greens relinquished all possession and control of the Property to Target at the time of the closing and, indeed, have not returned to the Property since moving to North Carolina several months prior to the closing. Then, on September 1,2009, when Target attempted to sell the Property, it discovered for the first time Amerson’s judgment lien. Target was thereafter precluded from effecting a third-party sale.

Target filed a petition to quiet title on the Property and, on the same day, Amerson filed the instant action. In that complaint, Amerson alleged that (1) the Greens fraudulently transferred the Property to Target for the purpose of avoiding its judgment and requested that the sale be set aside, and (2) Amerson should be awarded bad-faith damages and attorney fees for the Greens and Target’s alleged deceitful conduct. And during the ensuing trial, the Greens and Target twice moved for directed verdict, contending that (1) the evidence was insufficient as to establish the essential elements of fraud, so as to support a finding of fraudulent transfer and (2) Amerson’s judgment lien was improper because it was filed during the pendency of the Greens’ motion for new trial in their litigation with Amerson. The trial court denied both motions.

The jury returned a verdict in favor of Amerson on the fraudulent-transfer claim, finding that the warranty deed from the Greens to Target should be set aside, that the Greens and Target acted with bad faith, and that Amerson was entitled to attorney fees against Target. No ruling was made as to the validity of the judgment lien.

On appeal, the Greens and Target assert that the trial court erred (1) in allowing the issue of fraudulent transfer to go to the jury, and not granting their motions for directed verdict, and (2) in failing to rule upon the validity of the judgment lien.

1. With respect to the Greens and Target’s argument that the trial court erred in denying their motions for directed verdict on the claim of fraudulent transfer, we note that a directed verdict is proper only if “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, . . . demand[s] a particular verdict.” Amerson, of course, bore the burden at trial of presenting sufficient evidence to establish fraud, and we review the trial court’s denial of the Greens and Target’s motions for directed verdict using the any evidence standard. With these guiding principles in mind, we turn now to merits of this enumeration of error.

The Georgia Uniform Fraudulent Transfers Act (“UFTA”) proscribes transfers made “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor.” OCGA § 18-2-74 (b) lists several factors—-also called “badges of fraud”—that “consideration may be given [to], among other factors,” in determining whether a fraudulent transfer has been made with actual intent to defraud a creditor:

(1) [t]he transfer or obligation was to an insider; (2) [t]he debtor retained possession or control of the property transferred after the transfer; (3) [t]he transfer or obligation was disclosed or concealed; (4) [b]efore the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) [t]he transfer was of substantially all the debtor’s assets; (6) [t]he debtor absconded; (7) [t]he debtor removed or concealed assets; (8) [t]he value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) [t]he debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) [t]he transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) [t]he debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

Amerson contends that this case implicates evidence of fraud as set forth in factors 1, 2, 3, 4, 5, 6, 7, 9 and 10. We disagree.

(a) Without citing to any authority or record evidence, Amerson asserts that Target, as Charlotte’s employer, is an “insider” within the meaning of OCGA § 18-2-74 (b) (1). As defined in the UFTA, however, an “insider” includes an individual debtor’s relatives, partners or partnerships, or “[a] corporation of which the debtor is a director, officer, or person in control.” The record contains no evidence that Charlotte was “a director, officer, or person in control” at Target. To the contrary, Charlotte testified that, at no time during the relevant time period, was she employed in an executive or managerial position with any authority or control over Target’s actions with respect to the direction of money or the purchase/sale of the Property. It follows, then, that Amerson failed to set forth any evidence to support its assertion that Target was an “insider” within the meaning of OCGA § 18-2-74 (b) (l).

(b) In support of its contention that the Greens retained possession or control of the Property after the sale to Target (thus implicating OCGA § 18-2-74 (b) (2)), Amerson notes that, although the closing took place on May 4, 2009, the Greens did not transfer the warranty deed to Target until January 7, 2010. To be sure, a delay in transferring the warranty deed might, in some circumstances, support an inference of fraud. But here, the uncontroverted evidence shows that the Greens left the Property in March 2009 and never again returned. Moreover, following the closing, the Greens completely relinquished all control over the Property, and Plus Relocation assumed responsibility for the upkeep and payment of all taxes and maintenance.

Additionally, while the delay in transferring title to the Property might seem unusual at first blush, Target explained that, as was the case with most corporate relocations, its customary practice dictated that it not assume title to properties it purchased. Instead, a title is generally held by a third-party title company until the property is sold, at which time title is transferred directly to the buyer in order to reduce the expenses of the transaction. Here, however, Target obtained title to the Greens’ Property in January 2010 after its attempted third-party sale failed, in order to dispute Amerson’s lien. It follows, then, that Amerson failed to set forth any evidence to support its assertion that the Greens retained possession or control of the Property after the sale to Target within the meaning of OCGA § 18-2-74 (b) (2).

(c) Amerson also maintains that the fact its judgment was obtained prior to the transfer of the Property from the Greens to Target connotes a badge of fraud under OCGA § 18-2-74 (b) (4).

Again, we certainly recognize that there are circumstances in which the timing of a conveyance will necessarily raise suspicions as to a debtor’s intentions. That said, the uncontroverted evidence presented at trial was that the Greens—acting with the assistance of the same counsel who represented them at trial and supported their account of events—understood Amerson’s judgment to be against them personally and not as a burden on the Property. And Target, who informed Charlotte that a clear title was a prerequisite to its buyout, conducted two title searches prior to the closing, neither of which reflected Amerson’s lien. Thus, while Amerson’s judgment does predate the conveyance, it is not sufficient, by itself and under these particular circumstances, to support a finding of actual intent to defraud.

(d) Amerson further contends that OCGA § 18-2-74 (b) (5) is implicated in the case sub judice because the Property was the Greens’ sole remaining asset in Georgia. But even if this is true, it does not necessarily mean that “[t]he transfer was of substantially all the debtor’s assets.” The transfer of the Property from the Greens to Target does not equate to the Greens having no remaining assets or income subject to collection in North Carolina (from which Amerson could collect on its judgment). Indeed, the Greens were not asked about any remaining assets or property at trial, nor was any evidence presented as to the absence of such assets. As such, Amerson cannot establish that the transfer of the Property represented “substantially all the [Greens’] assets” from a silent record. Amerson’s reliance on this particular badge of fraud is, therefore, misplaced.

(e) With respect to OCGA § 18-2-74 (b) (6), Amerson alleges that the Greens “absconded” to North Carolina. But Amerson has presented absolutely no evidence that the Greens concealed their move to North Carolina or that their decision to move was in any way an attempt to avoid Amerson’s judgment. Instead, the record shows that Charlotte accepted the North Carolina position and was in the process of moving prior to the entry of Amerson’s judgment. And while it is certainly true that the underlying litigation was pending at the time of Charlotte’s decision to relocate, it is undisputed that Target solicited Charlotte for the transfer and that she declined to submit her name when the position was originally posted. As such, there is simply no evidence to support a finding that Charlotte requested an out-of-state transfer fearing an adverse judgment, or that she was attempting to “abscond.” Sometimes a corporate relocation really is just a corporate relocation.

(f) Amerson also asserts that, by moving to North Carolina, the Greens “removed or concealed assets,” supporting an inference of fraud under OCGA § 18-2-74 (b) (7). But Amerson conceded at trial that no evidence of concealment existed. And thus again, at its core, Amerson relies on nothing more than the Greens’ decision to move to North Carolina and the fact that Amerson had a judgment against them as “evidence” that the relocation was motivated by an actual intent to defraud Amerson. But in the absence of any other evidence to support such a finding, these facts alone are insufficient.

(g) Additionally, Amerson argues that the Greens were insolvent following the conveyance of the Property to Target because they have yet to pay the judgment against them, thus evincing fraud within the meaning of OCGA § 18-2-74 (b) (9). But to prove that the Greens were insolvent under the UFTA, Amerson was required to establish that, at the time of the conveyance, “the sum of [their] debts [was] greater than all of [their] assets, at a fair valuation,” or that the Greens were “generally not paying [their] debts as they [became] due.” Amerson did neither at trial.

Again, the record is devoid of any evidence as to the value of the Greens’ debts or assets, or of any evidence that the Greens were not paying their debts as they became due (other than Amerson’s judgment). Thus, even if we were inclined to entertain Amerson’s argument that a failure to pay its judgment, in and of itself, could demonstrate that the Greens were “generally not paying” their debts, Amerson still cannot make a showing of insolvency within the meaning of the statute in the absence of additional evidence as to the value of Amerson’s debt within the context of the Greens’ total liabilities.

(h) Finally, Amerson maintains that the Greens’ conveyance of the Property to Target shortly after Amerson obtained its judgment constitutes a badge of fraud under OCGA § 18-2-74 (b) (10). To be sure, as previously noted, the timing of events can, in some circumstances, give rise to an inference that a conveyance was designed to defeat the rights of a creditor. But under the facts of the case sub judice, no such inference is permissible.

The law is well established that the question of intent in a fraudulent conveyance case is generally one for the jury. But no matter how willing we are to commit to the jury “the solution of every question of fact,” when the determination of the issue “rests not on direct proof, but on circumstances, there exists a point where the inferences to be drawn cannot, as a matter of law, be sufficient to support a verdict.” That point was reached in this case.

Decided March 20, 2014

Reconsiderations denied April 2, 2014.

Magill Atkinson Dermer, Stephen F.Dermer, AndreeaR. Neculae, for appellant (case no. A13A1737).

D. Carlton Gibson, for appellants (case no. A13A1738).

Alan D. Tucker, for appellees.

The undisputed evidence reveals that the Property was conveyed to Target for purposes of Charlotte’s corporate relocation, and the record presents absolutely no evidence from which a jury could infer that the conveyance was motivated by some nefarious intent to defeat Amerson’s right to collect his judgment. It follows, then, that the Greens and Target were entitled to a directed verdict, and the trial court erred in denying their motions for same.

2. In light of our holding in Division 1, it is unnecessary for us to address the second enumeration of error.

Judgment reversed.

Andrews, P. J., and McMillian, J., concur.

       Target employs approximately 380,000 individuals nationwide. In addition to aiding relocating employees with the sale of their homes, Target’s relocation package funds the shipping of household goods, pays for closing costs and real-estate fees, and provides small, lump-sum payments to cover miscellaneous expenses.

       Amerson does not dispute that $356,000 represented the fair-market value of the Greens’ Property.

       The jury’s verdict was upheld by this Court in an unpublished opinion, Green v. Amerson, 308 Ga.App. XXI (2011).

       Target’s policy was to service, as opposed to pay off, the primary mortgages of its relocating employees. But as was its policy with all loans other than primary mortgages, Target paid off, rather than serviced, the Greens’ construction loan.

       The trial court issued an order staying the quiet-title action pending the final resolution of this case.

       The trial court also denied the Greens and Target’s motions for summary judgment, and this Court denied their applications for interlocutory appeal.

       OCGA § 9-11-50 (a).

        Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga. App. 832, 835 (1) (730 SE2d 556) (2012).

        See Honester v. Tinsley, 183 Ga. App. 146, 148 (2) (358 SE2d 295) (1987).

        See OCGA § 18-2-70 et seq.

       OCGA § 18-2-74 (a) (1). Amerson presented no evidence that the transfer was fraudulent under OCGA § 18-2-74 (a) (2), which prohibits transfers made
      [wjithout receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor... (A) [w] as engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (B) [ijntended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.

        See BFP v. Resolution Trust Corp., 511 U. S. 531, 540-541 (114 SCt 1757, 128 LE2d 556) (1994) (“The modern law of fraudulent transfers had its origin in the Statute of 13 Elizabeth, which invalidated ‘covinous and fraudulent’ transfers designed ‘to delay, hinder or defraud creditors and others.’... English courts soon developed the doctrine of ‘badges of fraud’: proof by a creditor of certain objective facts (for example, a transfer to a close relative, a secret transfer, a transfer of title without transfer of possession, or grossly inadequate consideration) would raise a rebuttable presumption of actual fraudulent intent.”) (citation omitted); Sun Nurseries, 316 Ga. App. at 839 (1) (b) (referring to the eleven nonexclusive factors delineated in OCGA § 18-2-74 (b) as “badges of fraud”).

       OCGA § 18-2-74 (b); see also SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1, 4 (2) (709 SE2d 267) (2011).

       OCGA § 18-2-71 (7) (A).

       For that matter, there is no evidence that Charlotte was a “person in control” of Target within the meaning of the statute.

        Compare Merrell v. Beckwith, 263 Ga. 779, 781 (439 SE2d 488) (1994) (recognizing that “conveyances between near relatives are to be scrutinized closely and slight evidence of fraud shown between them may be sufficient to set the transaction aside”); Lawson v. Athens Auto Supply & Elec., Inc., 200 Ga. App. 609, 613-14 (6) (409 SE2d 60) (1991) (conveyances made between debtor’s corporate alter-egos provided evidence of intent to defraud).

        Compare Merrell, 263 Ga. at 781 (evidence that debtor remained in possession of the property for eight years after the transfer to her grandson raised a question of fact for the jury and supported a finding of fraudulent conveyance); State Housecraft, Inc. v. Jones, 96 Ga. App. 182, 186 (1) (99 SE2d 701) (1957) (evidence of debtor’s continued possession and use of the subject property after transfer authorized the trier of fact to infer fraud).

       In its brief, Amerson makes a vague and abstract argument that the Greens and Target concealed the transfer, thus implicating OCGA § 18-2-74 (b) (3). But at trial, Amerson conceded that no evidence of concealment existed. As such, this argument has been waived and will not be considered on appeal.

        See Gerschick v. Pounds, 281 Ga. App. 531, 533-34 (1) (b) (636 SE2d 663) (2006) (evidence supported a finding that debtor intended to defraud creditor when debtor “rush recorded” a quitclaim deed of his property to his wife after a hearing and two days prior to the entry of a judgment against him); Kent v. White, 279 Ga. App. 563, 565 (2) (631 SE2d 782) (2006) (finding of fraudulent intent supported by evidence that the day after judgment was entered against him, debtor recorded deed conveying property to his daughter for no consideration, debtor continued to use property, and after conveyance debtor no longer had assets sufficient to pay creditor).

        See Sun Nurseries, 316 Ga. App. at 840 (1) (b) (holding that some evidence of a single badge of fraud, i.e., that debtor may have been insolvent, standing alone, was insufficient in the absence of any other evidence of an actual intent to defraud).

       See N.C. Gen. Stat. § 1C-1701 etseq. (also known as the Uniform Enforcement of Foreign Judgments Act).

       We note further that the fair-market value of the Property was less than the first-priority construction lien that encumbered the Property and was, therefore, not considered an asset under the UFTA. See In re Palisades at West Paces Imaging Ctr., LLC, 501 BR 896, 910 (I) (B) (Bankr. N.D. Ga. 2013) (“[T]o the extent a claim is secured by property of the debtor, the collateral is excluded from the calculation of assets . . . .”).

        Compare Bishop v. Patton, 288 Ga. 600, 608-09 (3) (c) (706 SE2d 634) (2011) (son’s act, three days after his father was arrested for murder, of withdrawing $250,000 from their joint bank account and taking proceeds from Georgia to Florida was evidence from which one could infer an intent to defraud victim’s daughter (who filed a wrongful death action on behalf of victim’s estate and heirs) when considered in conjunction with the fact that the son was an insider, the money represented nearly all of the father’s assets, the father did not receive anything of value in return, the transfer and proceeds were concealed, and plaintiff’s lawsuit was foreseeable), disapproved on other grounds by SRB Inv. Servs., 289 Ga. at 5 (3).

       OCGA § 18-2-72 (a); see Mercantile Nat. Bank v. Aldridge, 233 Ga. 318, 321 (2) (210 SE2d 791) (1974) (“A debtor is insolvent... when, after such conveyance, property left or retained by the debtor is not ample to pay his existing debts.”).

       OCGA § 18-2-72 (b); see In re Gregg,_BR_,*17,2013 WL 3989061 (Bankr.M.D.Ga., decided July 2, 2013) (noting that “Georgia case law ... is unhelpful in determining what ‘generally not paying debts as they become due’ means____”). But cf. In re EM Equip., LLC, 504 BR 8, 21 (D. Conn. 2013) (adopting the “generally not paying test” prescribed by 11 U.S.C. § 303 (h) (1), and in doing so noting that “whether an alleged debtor is not generally paying debts as they come due requires a ‘flexible’ approach,” one “which admits no hard and fast rules,” and which uses four factors as guideposts in such an analysis: “(1) the number of unpaid claims; (2) the amount of such claims; (3) the materiality of the nonpayments; and (4) the debtor’s overall conduct of its financial affairs”) (citation and punctuation omitted).

        See generally In re Gregg,_BR at_*17 (recognizing that at least one court has held that the failure to pay a single creditor can be considered “generally not paying” when the creditor’s claim constituted 97 percent of a debtor’s debt, but noting that evidence as to a debtor’s liabilities and payment history is required to make such a finding).

        See Kelly Energy Sys., Inc. v. Bd. of Comm’rs of Clarke County, 196 Ga. App. 519, 520-21 (1) (396 SE2d 498) (1990) (rejecting the trial court’s conclusion that a contractor was insolvent based solely upon the contractor’s failure to pay a single debt without evidence of the status of the contractor’s accounts with other creditors).

        See Powell v. Westmoreland, 60 Ga. 572, 572 (1878) (“Whether the deed of gift was made with intent to defraud or delay creditors is a question of fact for the jury, to be gathered from all the circumstances of the case at the time the deed was made .. ..”).

        Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776, 779 (257 SE2d 186) (1979) (punctuation omitted); see also Gwinnett Prop., N.V. v. G+H Montage GmbH, 215 Ga. App. 889, 891 (1) (453 SE2d 52) (1994) (noting that, when a party attempts to create a jury issue using circumstantial evidence to counter uncontradicted direct testimony as to a certain fact, “[t]he circumstantial evidence must be inconsistent with the direct testimony and must tend to establish the conclusion projected while rendering less probable all inconsistent conclusions” (punctuation omitted)).

        See Moore v. Moore, 281 Ga. 81, 86 (9) (635 SE2d 107) (2006) (“Because [appellant] failed to present any evidence from which the jury could have reasonably inferred that a specific conveyance . . . was fraudulent, we conclude that, with respect to this claim, there was no conflict in the evidence as to any material issue, and the evidence, with all reasonable deductions therefrom, demanded a verdict in favor of [appellee].”); Albee v. Krasnoff, 255 Ga. App. 738, 743 (6) (566 SE2d 455) (2002) (undisputed evidence presented no circumstances from which a jury could infer that defendants acted with an intent to defraud creditors based upon the conveyance). Compare Merrell, 263 Ga. at 780-81 (evidence that conveyance was made to a close family member at a time when debtor had no other assets for essentially no consideration and debtor remained in possession of the property after conveyances presented a jury question as to fraudulent intent); Bonner v. Smith, 247 Ga. App. 419, 420-21 (1) (543 SE2d 457) (2000) (jury question presented as to intent due to suspicious circumstances surrounding conveyance).