text:
    A14A0143.
    ROCA PROPERTIES, LLC et al. v. DANCE HOTLANTA, INC. et al.
    (761 SE2d 105)
   BARNES, Presiding Judge.

This lawsuit involves a dispute over the sale of a professional ballroom dance competition in Atlanta. Dance Hotlanta, Inc., the successor by merger to Hotlanta Dance Challenge, Inc., and Nancy Senner (collectively, the “HDC Plaintiffs”) sued Roca Properties, LLC, Elizabeth Chester, and Antonio Daza (collectively, the “Roca Defendants”) for breach of certain promissory notes and personal guarantees associated with the sale of the dance competition, prejudgment and postjudgment interest, and attorney fees. The Roca Defendants answered, alleging that they had been fraudulently induced into signing the notes and guarantees, and asserting counterclaims for breach of contract, fraud in the inducement, indemnification, attorney fees, and punitive damages. The trial court granted summary judgment to the HDC Plaintiffs on all of the claims and counterclaims, concluding that the uncontroverted evidence showed that the notes were in default and that the HDC Plaintiffs had not made any actionable false representations to the Roca Defendants that induced them to enter into the sale. For the reasons discussed below, we conclude that genuine issues of material fact exist in this case, and we vacate the trial court’s summary judgment order and remand with instruction.

Summary judgment is proper only if the pleadings and evidence show “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “We apply a de novo standard of review to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Punctuation and footnote omitted.) Bonner v. Southern Restaurant Group, 271 Ga. App. 497 (610 SE2d 129) (2005).

The Hotlanta Competition. The Hotlanta Dance Challenge is an annual ballroom dance competition held in Atlanta every third week in October (the “Hotlanta Competition”). The Hotlanta Competition is sanctioned by the National Dance Council of America (“NDCA”), which is the official governing council of dance competitions in the United States. Under NDCA rules, no other NDCA-sanctioned competition can take place within 90 miles from the Hotlanta Competition during the week it is held. Furthermore, at the time of this dispute, there were no new competition dates available from the NDCA; thus, a party interested in hosting a NDCA-sanctioned competition had to acquire the rights from an existing owner.

Nancy Senner and her former dance partner and boyfriend, Edwin Rivera, also known as “Eddie Ares” (“Ares”), were the founders of the Hotlanta Competition. Senner and Ares organized and hosted the Hotlanta Competition each year from its inception through 2009. During that time period, the business of the Hotlanta Competition was conducted through various companies owned solely by Senner, including Hotlanta Dance Challenge, Inc. (“HDC”).

The Rising Star Ball. For many years, Senner and Ares operated the Hotlanta Competition in a single ballroom at an Atlanta area hotel. However, in 2006, Ares developed the concept of the “Rising Star Newcomers Ball,” a competition for amateur dancers who might be intimidated by the level of competition in the main ballroom (the “Rising Star Ball”). Ares registered the name with the United States Patent and Trademark Office, and Senner registered “Rising Star Newcomers Ball, Inc.” with the Georgia Secretary of State “to protect the name,” even though the registered corporate entity never had an organizational meeting or issued any stock.

From 2006 through 2009, the Rising Star Ball was conducted in a second ballroom in conjunction with the Hotlanta Competition. The Rising Star Ball had its own entry forms. The single brochure for the Hotlanta Competition and Rising Star Ball was divided into separate parts for the two events and listed separate schedules and check-in dates. The Hotlanta Competition and the Rising Star Ball also gave out separate prizes. Moreover, Ares testified that, unlike the Hotlanta Competition, the Rising Star Ball was not sanctioned by the NDCA.

Ares enjoyed organizing and hosting the Rising Star Ball because of the “energy and enthusiasm” of the amateur dancers. After the 2009 event, Ares informed Senner that he wanted to organize and operate a new dance competition circuit exclusively for amateurs, which he named the “Rising Star Friendly Circuit” (the “Rising Star Circuit”). The Rising Star Circuit would be unaffiliated with the NDCA. Senner and Ares agreed that Senner would continue to organize and host the Hotlanta Competition through her company HDC, while Ares would leave HDC to run his Rising Star Circuit.

Initial Negotiations with the Roca Defendants. In early 2010, Elizabeth Chester contacted Senner to see if she would be interested in having an additional partner or selling the Hotlanta Competition. Their discussions led to negotiations between the parties over the sale of the assets of HDC and the associated personal goodwill of Senner to Roca Properties LLC, a company owned by Chester and Antonio Daza. Both sides were represented by counsel throughout the negotiations. Michael Reeves, a potential investor in Roca Properties, also was involved in the negotiations.

In March 2010, Chester, acting on behalf of Roca Properties, signed a letter of intent to purchase the assets of HDC and the personal goodwill of Senner for a total purchase price of $400,000. The letter stated that it was the intent of HDC to sell to Roca Properties its assets “as they relate solely to the Competition,” defined as “the dance competition known as the ‘Hotlanta Dance Challenge’ held in Atlanta, Georgia.” The letter of intent made no reference to the Rising Star Ball.

Senner’s Handwritten Notes. During the parties’ negotiations, Senner provided the Roca Defendants with corporate tax returns for the years 2007 and 2008. But the 2009 tax return for HDC had not yet been filed and thus was unavailable for the Roca Defendants to review. Nor did Senner provide any financial software or income statements, balance sheets, or a general ledger for 2009 that could be reviewed by the Roca Defendants.

Senner did provide the Roca Defendants with a copy of her undated handwritten financial notes drafted as part of the negotiations, but the parties dispute whether the notes contained financial information for 2009. According to the Roca Defendants, Senner’s handwritten notes included revenue and expense figures for the 2009 Hotlanta Competition. In contrast, Senner contended that her notes were nothing more than projections for additional revenue sources and lower operating expenses for the Hotlanta Competition in future years.

The Number of Paid Entries. During the parties’ negotiations, Senner also provided the Roca Defendants with a computer printout reflecting that there had been 7,195 paid entries for the 2009 Hotlanta Competition. An “entry” represented a fee paid for a contestant for one dance. Senner did not tell the Roca Defendants that the 7,195 figure included paid entries for the 2009 Rising Star Ball.

The Purchase Transaction. Based on Senner’s representations and the financial documents and information provided by her, Roca Properties entered into an Asset Purchase Agreement with HDC and Senner on April 8,2010 (the “Purchase Agreement”). Under the terms of the Purchase Agreement, Roca Properties agreed to buy certain itemized assets of HDC associated with the Hotlanta Competition for $200,000.

The Purchase Agreement and the schedules attached to it made no reference to the Rising Star Ball and whether or to what extent any rights to it would be retained by Ares. But the Purchase Agreement did provide that the parties would “use their reasonably best efforts to cause . . . Ares” to enter into a “Release, Non-Compete and Non-Disparagement Agreement” with the parties for a two-year period. Schedule 3.5 to the Purchase Agreement further specified that good and marketable title to HDC’s assets excluded “[a]ny legal or equitable interest claimed by... Ares,” unless and until he released and transferred any such claimed interest to the parties as part of the contemplated noncompete agreement.

Contemporaneously with the execution of the Purchase Agreement, Roca Properties also entered into an Agreement for Sale and Purchase of Personal Goodwill (the “Goodwill Agreement”). Under the Goodwill Agreement, Roca Properties agreed to buy the personal goodwill of Senner related to the Hotlanta Competition for $200,000.

Pursuant to the terms of the Purchase Agreement and the Goodwill Agreement, Roca Properties paid $100,000 to HDC and $100,000 to Senner at closing. Roca Properties also entered into two promissory notes for $100,000 each as part of the purchase transaction: one in favor of HDC and one in favor of Senner. That same day, Chester and Daza each signed a personal guaranty for the two notes.

The Noncompete Agreement with Ares. A month after the purchase transaction, Senner, HDC, and Ares executed a “Release, Non-Compete/Non-Solicit, and Non-Disparagement Agreement” (the “Noncompete Agreement”). Pursuant to the terms of the Noncompete Agreement, Ares agreed not to sponsor or conduct a dance competition at the same time as the Hotlanta Competition. Under a paragraph entitled “Additional Consideration,” the Noncompete Agreement further provided that Ares would be conveyed “the intangible and tangible property described in the attached Exhibit A.”

Exhibit A to the Noncompete Agreement listed the property conveyed to Ares, which included “[a]ny and all interest in the Rising Star Newcomers Circuit,” “[a]ny and all interest in the Rising Star Newcomers Ball,” and “[a]ny and all interest in the Georgia entity registered with the Secretary of State and known as ‘Rising Star Newcomers Ball, Inc.’ ” Exhibit A also listed a series of personal items that would be conveyed to Ares, such as a sofa and a floor lamp, that had been located in Senner’s house. Although the Noncompete Agreement had a signature line for Roca Properties, counsel for Roca Properties testified that the company refused to sign it because the inclusion of the personal items in Exhibit A “muddied the waters.”

Operation of the Rising Star Circuit. Ares founded and organized the Rising Star Circuit of amateur ballroom dance competitions as he had planned. Ares initially intended to use the name “Rising Star Newcomers Ball” for the annual grand finale event for his Rising Star Circuit of amateur competitions held in Atlanta. However, he ultimately changed the name of the grand finale event to the “American Dance Classic.” The American Dance Classic has been held every October since 2010, after the Hotlanta Competition held the same month.

The 2010 and 2011 Hotlanta Competitions. The Roca Defendants organized and hosted the Hotlanta Competition in 2010 and 2011. They did not host an amateur competition in a separate ballroom. The number of paid entries for the 2010 competition was 3,120 and for the 2011 competition was 2,958. Roca Properties did not make a profit on either the 2010 or 2011 Hotlanta Competition. Consequently, Roca Properties chose not to host a Hotlanta Competition in 2012.

Post-Closing Financial Disclosures. The Roca Defendants learned that the figure of 7,195 paid entries for the 2009 Hotlanta Competition that had been supplied to them by Senner included the number of paid entries for the Rising Star Ball. Excluding the paid entries for the Rising Star Ball, the number of paid entries for the 2009 Hotlanta Competition had only been 4,911. According to the Roca Defendants, they would not have entered into the purchase transaction had they known the true number of paid entries for the 2009 Hotlanta Competition.

Additionally, after the 2010 and 2011 Hotlanta Competitions, the Roca Defendants began to question the figures that had been provided to them by Senner in her handwritten notes. HDC had filed its 2009 tax return after the closing of the purchase transaction, and it showed revenues of $261,767, expenses of $238,711, and profit of $23,056. If Senner’s handwritten notes were meant to show the 2009 financial performance of HDC, the financial figures in the notes reflected a profit significantly higher than what was shown on the 2009 tax return. The Roca Defendants asserted that they would not have entered into the purchase transaction if they had known the actual financial condition of HDC in 2009 as reflected in the tax return.

Dispute over Payment of the Notes. Roca Properties did not make payment on the promissory notes to HDC and Senner when they became due. In February 2012, the Roca Defendants advised HDC and Senner that they were rescinding the notes and guarantees because they had been fraudulently induced to enter into the purchase transaction by Senner. According to the Roca Defendants, they would not have purchased the assets of HDC and Senner’s associated goodwill or signed the notes and guarantees, had they known the true number of paid entries for the 2009 Hotlanta Competition and the actual financial condition of HDC for that year.

The Lawsuit. The HDC Plaintiffs sued the Roca Defendants for breach of the promissory notes and related personal guarantees, prejudgment and postjudgment interest, and attorney fees. The Roca Defendants answered and asserted counterclaims for the breach of certain express warranties contained in the Purchase Agreement, fraud in the inducement, indemnification under the terms of the Purchase Agreement, attorney fees, and punitive damages.

Following discovery, the HDC Plaintiffs moved for summary judgment on all of their claims and the Roca Defendants’ counterclaims, contending, among other things, that the uncontroverted evidence showed that the Roca Defendants had defaulted on the notes and guarantees and had not been fraudulently induced into entering into the purchase transaction. The Roca Defendants responded that there were genuine issues of material fact as to whether they were fraudulently inducedto enter into the purchase transaction by Senner’s misrepresentations about the number of paid entries for the 2009 Hotlanta Competition and about the financial condition of HDC in 2009.

Concluding that no genuine issues of material fact existed, the trial court granted summary judgment in favor of the HDC Plaintiffs on all of the claims and counterclaims. The trial court found that the uncontroverted evidence showed that the HDC Plaintiffs had not made any actionable false representations to the Roca Defendants about the number of paid entries for the 2009 Hotlanta Competition or the 2009 financial performance of HDC, and that there was no evidence that the Roca Defendants actually relied on any alleged misrepresentations about HDC’s 2009 financial performance. The trial court thereafter entered final judgment in favor of the HDC Plaintiffs and jointly and severally against the Roca Defendants, awarding the HD C Plaintiffs the principal amount owed on the notes, prejudgment and postjudgment interest, and attorney fees and costs. This appeal followed.

1. We first address the trial court’s grant of summary judgment in favor of the HDC Plaintiffs on their claims for breach of the promissory notes and personal guarantees. According to the Roca Defendants, a genuine issue of material fact exists as to whether they were fraudulently induced to enter into the notes and guarantees, and the trial court erred in concluding otherwise.

A creditor suing on a promissory note establishes a prima facie case to judgment as a matter of law by producing the note and showing that it was signed by the debtor and is in default. Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 863 (2) (734 SE2d 847) (2012); Speir v. Nicholson, 202 Ga. App. 405, 408 (2) (414 SE2d 533) (1992). Once a prima facie case has been made by the creditor, the burden of production shifts to the debtor to produce or point to evidence that establishes an affirmative defense. Big Sandy Partnership v. Branch Banking & Trust Co., 313 Ga. App. 871, 872 (1) (723 SE2d 82) (2012). Fraud in the inducement is a good defense to the enforceability of an obligation to pay a promissory note. Jocelyn Canyon, Inc. v. Lentjes, 292 Ga. App. 608, 611 (664 SE2d 908) (2008); Morgan v. Hawkins, 155 Ga. App. 836, 837 (1) (273 SE2d 221) (1980). Mindful of these principles, we turn to the specific allegations of fraudulent inducement alleged by the Roca Defendants.

(a) The Number of Paid Entries for the 2009 Hotlanta Competition. In opposing summary judgment, the Roca Defendants alleged that they had been fraudulently induced to enter into the notes and guarantees by Senner’s misrepresentation about the number of paid entries for the 2009 Hotlanta Competition. According to the Roca Defendants, the evidence showed that they acquired the Hotlanta Competition, not the Rising Star Ball, when they purchased the assets of HDC pursuant to the Purchase Agreement. Senner, however, included the number of paid entries for the Rising Star Ball in the number that she represented to the Roca Defendants as being the number of paid entries for the 2009 Hotlanta Competition. The Roca Defendants argued that by including entry figures for the Rising Star Ball, a jury could find that Senner misled them about the size and success of the 2009 Hotlanta Competition.

The trial court rejected the Roca Defendants’ argument, finding that the uncontroverted evidence showed that the amateur dance competition known as the Rising Star Ball was not a separate event from the Hotlanta Competition. Consequently, the trial court concluded that when the Roca Defendants acquired the Hotlanta Competition from HDC, they also acquired the right to host an amateur dance competition in a second ballroom. According to the trial court, “Rising Star Ball” was nothing more than a registered trade name, and even if Ares retained the rights to the name, it did not make the entry numbers supplied by Senner misleading. Rather, the trial court reasoned, because the Roca Defendants had been conveyed the right to host an amateur dance competition in a second ballroom “under another name had they so chosen,” the inclusion of the entry numbers for Rising Star Ball in the number supplied by Senner was not misleading and did not constitute a false representation as a matter of law. The trial court’s findings and conclusions were in error.

(i) Evidence that the Rising Star Ball Was a Separate Event. As an initial matter, there was evidence from which a jury could find that the Rising Star Ball was a separate event from the Hotlanta Competition. In this regard, the Roca Defendants pointed to evidence that the Rising Star Ball was conducted in a separate ballroom from the professional dance competition, that the brochure for the Hotlanta Competition and the Rising Star Ball was divided into separate parts for the two competitions, and that the Rising Star Ball had its own entry forms, schedule, check-in days, and awards. In addition, there was evidence that the Hotlanta Competition was founded in 1997 by Senner and Ares, while the Rising Star Ball was founded in 2006 solely by Ares. Ares also testified that unlike the Hotlanta Competition, the Rising Star Ball was not sanctioned by the NDCA. Finally, there was evidence that Senner registered a separate entity named “Rising Star Newcomers Ball, Inc.” with the Georgia Secretary of State. This combined evidence, construed in favor of the Roca Defendants, would support a finding by a jury that the Rising Star Ball was a separate event from the Hotlanta Competition. Hence, contrary to the trial court’s conclusion, there was some evidence that the Rising Star Ball was more than simply a registered trade name; construed in favor of the Roca Defendants, the evidence showed that it was a separate dance competition, the tangible and intangible rights to which were distinctive from any rights associated with the Hotlanta Competition.

Accordingly, the operative question is whether the Roca Defendants acquired any right or interest in holding the Rising Star Ball when they purchased the assets of HDC. We conclude that there was evidence from which a jury could answer this question in the negative. While the language of the Purchase Agreement was ambiguous on this point, there was parol evidence from which a jury could find that the parties understood that Ares would retain all of the rights to the Rising Star Ball.

(ii) The Language of the Purchase Agreement. The “cardinal rule” of contract construction “is to ascertain the intention of the parties.” OCGA § 13-2-3. “Where the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties.” (Citations and punctuation omitted.) Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, Inc., 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005). But if the contract contains an ambiguity that cannot be resolved through the rules of construction, the court may look outside the written terms of the contract and consider parol evidence. Id. at 866-867 (1). See OCGA § 13-2-2 (1). And if the parol evidence is in conflict, “the question of what the parties intended becomes a factual issue for the jury.” (Citations omitted.) Dye v. Mechanical Enterprises, Inc., 308 Ga. App. 311, 314 (708 SE2d 24) (2011). See DJ Mortgage, LLC v. Synovus Bank, 325 Ga. App. 382, 391-393 (2) (a) (i) (A) (III) (750 SE2d 797) (2013).

Here, the Purchase Agreement recites that HDC is “the owner of the certain assets including but not limited to the name, service mark, and sanctioned approval of a certain dance competition held annually in Atlanta, Georgia and known as the ‘Hotlanta Dance Competition’ (the ‘Competition’),” and that Roca Properties wishes to acquire from HDC “substantially all of the assets used in promoting and conducting ... [the] Competition, upon the terms and subject to the conditions hereinafter set forth.”

The “assets” of HDC being purchased by Roca Properties are defined by the Purchase Agreement to include “all of the assets, rights, interests, client lists, client files, intellectual property... used by the Competition,” with the “assets” more fully described in an attached schedule of “Purchased Assets.” The list of “Purchased Assets” includes “all other properties and assets of every kind and nature, tangible or intangible owned by [HDC] and used for or held for use in connection with the Competition, other than real property.” Also attached to the Purchase Agreement is a schedule of “Excluded Assets.”

The Purchase Agreement also contains provisions relating to the rights and interests claimed by Ares. Section 2.7 of the Purchase Agreement states that the parties will “use their reasonably best efforts to cause . . . Ares” to enter into a “Release, Non-Compete and Non-Disparagement Agreement” with the parties for a period of two years. Schedule 3.5 further specifies that good and marketable title to HDC’s assets excludes “[a]ny legal or equitable interest claimed by... Ares,” unless and until any such claimed interest is released and transferred to the parties “pursuant to the requirements of Section 2.7.”

Taken together, these provisions of the Purchase Agreement are ambiguous regarding the conveyance of the Rising Star Ball. Notably, although the Purchase Agreement contains a broad definition of the “Assets” and the “Purchased Assets” conveyed to the Roca Defendants, it makes no reference to any right or interest in the Rising Star Ball in its definition of the “Competition” or “Assets,” in its schedules of “Purchased Assets” and “Excluded Assets,” or in any other paragraph or schedule. Furthermore, while Schedule 3.5 indicates that certain “legal or equitable interest[s]” are being retained by Ares unless and until he transfers those rights to the parties as part of a noncompete agreement, the Purchase Agreement does not further specify what particular “interests” are being retained by Ares.

Under these circumstances, it is simply unclear from the language of the Purchase Agreement whether the Roca Defendants were being conveyed any right or interest in holding the Rising Star Ball when they purchased the assets of HDC, or whether Ares was retaining all of the rights to the Rising Star Ball. Moreover, the parties have not pointed to any rules of construction that would resolve the ambiguity, and we have found none. Therefore, we may look outside the four corners of the Purchase Agreement and consider parol evidence. See Municipal Elec. Auth. of Ga., 276 Ga. App. at 866-867 (1).

(iii) The Parol Evidence. Our review of the parol evidence leads us to conclude that there was evidence from which a jury could find that the parties never intended for the Roca Defendants to obtain any right or interest in holding the Rising Star Ball as part of the Purchase Agreement. According to Chester, throughout the negotiations, she informed Senner that the Roca Defendants did not want to purchase the Rising Star Ball or have any involvement with Ares, whom Chester believed had a bad reputation in the dance community. Chester further testified that the Roca Defendants did not host an amateur dance competition in a second ballroom as part of the 2010 and 2011 Hotlanta Competitions because that was “Ares’ competition” and they “did not purchase it.”

Ares likewise testified that the Roca Defendants did not intend to purchase any assets associated with the Rising Star Ball, which would include the trademark and the right to host the competition. Furthermore, in their respective affidavits, Chester and Daza averred that Senner represented to them on several occasions that the Rising Star Ball would not be part of the sale of the assets of HDC to Roca Properties and that Ares would take the Rising Star Ball and operate it on his own.

Counsel for Roca Properties likewise testified that the parties had several discussions about Ares and the Rising Star Ball, and that it was made clear to Senner that Chester did not want to work with Ares. According to Roca Properties’ counsel, all of the parties understood through their discussions that Ares would continue to operate the Rising Star Ball on his own and that any assets associated with that amateur competition would not be purchased as part of the sale. Reeves, the potential investor in Roca Properties who was involved in the negotiations, also testified that Senner represented to him that she was not including the Rising Star Ball as part of the sale.

Finally, “[t]he subsequent conduct of the parties to an agreement maybe considered as evidence of their intent.” Tidwell v. Bassett, 271 Ga. App. 867, 869 (611 SE2d 123) (2005). The evidence showed that a month after the parties entered into the Purchase Agreement, the HDC Plaintiffs and Ares executed the Noncompete Agreement under which the HDC Plaintiffs agreed to transfer to Ares “any and all interest in the Rising Star Newcomers Circuit,” “any and all interest in the Rising Star Newcomers Ball,” and “[a]ny and all interest in the Georgia entity registered with the Secretary of State and known as ‘Rising Star Newcomers Ball, Inc.’ ” Indeed, after the parties entered into the Purchase Agreement, Ares organized and operated the Rising Star Circuit, which included an amateur dance competition held every year in October in Atlanta, without any protest from the parties. This evidence further indicates that the parties never contemplated that the Roca Defendants would obtain a right or interest in holding the Rising Star Ball; instead, all of those rights were retained by Ares.

It is true that the HDC Plaintiffs presented evidence supporting a different view of the Rising Star Ball and of what the parties intended to be conveyed in the Purchase Agreement. But given the evidence produced by the Roca Defendants, there is a genuine issue of material fact as to whether the Rising Star Ball was a separate event from the Hotlanta Competition, and whether the Roca Defendants were conveyed any interest or right in holding the Rising Star Ball as part of the Purchase Agreement. If a jury were to find that the Rising Star Ball was a separate event and that the Roca Defendants were not conveyed any rights to it, a jury could likewise find that Senner’s inclusion of the number of paid entries for the Rising Star Ball in the number for the 2009 Hotlanta Competition provided to the Roca Defendants was misleading and constituted a false representation. Thus, the trial court based its grant of summary judgment to the HDC Plaintiffs on an erroneous ground.

(b) Financial Information about the 2009 Hotlanta Competition. In opposing summary judgment, the Roca Defendants also alleged that they had been fraudulently induced to enter into the notes and guarantees by Senner’s misrepresentations about the financial condition of HDC in 2009. Specifically, the Roca Defendants contended that Senner’s handwritten notes provided to them during the negotiations included revenue and profit figures for the 2009 Hotlanta Competition that were grossly inflated and misled them about the true financial condition of HDC. In contrast, the HDC Plaintiffs contended that Senner’s notes were simply projections for additional revenue sources and lower operating expenses for the Hotlanta Competition in future years and thus could not provide the basis for a claim of fraudulent inducement.

Agreeing with the HDC Plaintiffs, the trial court found that the uncontroverted evidence showed that the handwritten notes provided to the Roca Defendants by Senner contained mere projections for growth in future years, not representations about the financial performance of the 2009 Hotlanta Competition. The trial court further found that there was no evidence that the Roca Defendants relied on the handwritten notes as representations of the performance of the Hotlanta Competition in 2009 when deciding to enter into the purchase transaction. As such, the trial court concluded that there was no evidence of any fraudulent misrepresentations by Senner about the profitability of the Hotlanta Competition in 2009 and no evidence of reliance by the Roca Defendants on the handwritten notes. We disagree with both of these conclusions reached by the trial court.

(i) The Interpretation of Senner’s Handwritten Notes. Our precedent makes clear that under Georgia law,

mere opinions, predictions, and conjectures relating to future events cannot form the basis of a fraud claim. It is axiomatic that a false representation made by a defendant, to be actionable, must relate to an existing fact or a past event. Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events. Representations concerning expectations and hopes are not actionable.

(Citation and punctuation omitted.) Greenwald v. Odom, 314 Ga. App. 46, 52-53 (1) (723 SE2d 305) (2012).

Here, Senner’s handwritten notes are undated and do not contain any notations stating the purpose of the notes. The first page of the notes lists revenue sources for the Hotlanta Competition with total revenue listed as “356,595 - 373,765.” The second page again lists revenue sources and includes a total revenue figure of $373,765. The final page details a list of expenses for the Hotlanta Competition totaling $186,000.

Senner submitted an affidavit in which she averred that the notes were not intended to represent the financial performance of the Hotlanta Competition in 2009. Rather, she averred that the notes were nothing more than projections for additional revenue sources and lower expenses for the operation of the Hotlanta Competition in future years. In her affidavit, Senner went through each line of her notes in an effort to explain how the figures represented projections for future revenues and expenses, and she pointed out that her notes listed a range of possible revenue and rounded expense figures, consistent with the numbers being projections of future performance.

The trial court agreed with Senner’s interpretation of the handwritten notes. But the Roca Defendants presented evidence that the notes were intended to provide them with information about the financial performance of the Hotlanta Competition in 2009, given that the 2009 tax return and other financial documents for that year were not available for their review. Specifically, Daza testified that Senner’s handwritten notes were shown to the Roca Defendants during a meeting before the purchase transaction and were intended to provide them with the financial numbers for the 2009 Hotlanta Competition. According to Daza, the notes contained rounded figures in certain places because Senner could not remember the exact numbers when she wrote out her notes. Likewise, Roca Properties’ counsel testified that he was provided a copy of the handwritten notes from HDC’s attorney and was told that the notes were intended to represent the revenues and expenses for 2009. Lastly, Reeves averred in his affidavit that the parties attended an in-person meeting with Senner on March 10, 2010, and his own notes from that meeting reflect that Senner informed them that total revenues for 2009 were $356,000, total expenses were $186,000, and total profit was $170,000, which was generally consistent with information contained in Senner’s handwritten notes.

In light of the conflicting evidence regarding Senner’s handwritten notes, the trial court erred in concluding that the uncontroverted evidence showed that the notes were mere projections of future performance and thus were nonactionable predictions and conjecture about future events. Construed in favor of the Roca Defendants, the evidence would support a finding that the handwritten notes were provided by Senner to supply the Roca Defendants with information about the financial performance of the Hotlanta Competition in 2009, and thus could support a claim for fraudulent inducement.

(ii) Reliance on Senner’s Handwritten Notes. Critical to any fraud claim is proof that the victim actually relied on the representation forming the basis for his or her claim. Bithoney v. Fulton-DeKalb Hosp. Auth., 313 Ga. App. 335, 344 (2) (721 SE2d 577) (2011). Generally, questions about reliance are for the jury to determine. Orion Capital Partners, L.P. v. Westinghouse Elec. Corp., 223 Ga. App. 539, 542 (2) (b) (478 SE2d 382) (1996).

The trial court erred in finding that there was no evidence that the Roca Defendants relied on Senner’s handwritten notes as representations of the 2009 financial performance of the Hotlanta Competition when deciding to enter into the purchase transaction. Chester and Daza averred in their affidavits that they executed the Purchase Agreement and other closing documents based on Senner’s representations to them and based on the financial documents provided to them as part of the negotiations over the purchase transaction, which included Senner’s handwritten notes. Furthermore, Daza testified in his deposition that the numbers in the handwritten notes “were mostly the numbers we were basing our purchase” of HDC’s assets on. This affidavit and deposition testimony, combined with the evidence presented by the Roca Defendants discussed supra in Division 1 (b) (i), would support a finding that the Roca Defendants actually relied on Senner’s handwritten notes as representations of the 2009 financial performance of the Hotlanta Competition in deciding to enter into the Purchase Agreement and other closing documents. It follows that the trial court erred in concluding that there was no evidence of reliance on the handwritten notes.

(c) In summary, fraudulent inducement can serve as a defense to a claim for breach of a note or guaranty. Jocelyn Canyon, Inc., 292 Ga. App. at 611; Morgan, 155 Ga. App. at 837 (1). In the present case, there are issues of fact regarding whether the HDC Plaintiffs made any false representations to the Roca Defendants about the number of paid entries and financial performance of the 2009 Hotlanta Competition as part of the negotiations over the purchase transaction, and whether the Roca Defendants actually relied on the alleged misrepresentations about the 2009 financial performance. The trial court erred in concluding otherwise and in granting summary judgment to the HDC Plaintiffs on their claims for breach of the promissory notes and personal guarantees based on those erroneous legal conclusions.

2. The trial court granted summary judgment in favor of the HDC Plaintiffs on their claim for attorney fees and on all of the Roca Defendants’ counterclaims for the same reasons that it granted summary judgment to the HDC Plaintiffs on their claims for breach of the notes and guarantees. Hence, the trial court erred in granting summary judgment to the HDC Plaintiffs on the attorney fees claims and the counterclaims for the same reasons previously discussed.

3. The HDC Plaintiffs raised several additional grounds for summary judgment that were not addressed or ruled upon by the trial court in its order. Pursuantto City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002), we exercise our discretion and decline to address the additional grounds not ruled upon by the trial court. See Medical Center of Central Ga. v. City of Macon, 326 Ga. App. 603, 607 (2) (757 SE2d 207) (2014). Consequently, we vacate the trial court’s summary judgment order and remand for the trial court to consider in the first instance the additional grounds raised by the HDC Plaintiffs in support of their motion for summary judgment. See id.; City of Gainesville, 275 Ga. at 838-839.

Decided June 24, 2014.

Friedman, Dever & Merlin, H. Michael Dever, Genevieve H. Dame, for appellants.

Wasson, Sours & Harris, Gene E. Massafra, for appellees.

Judgment vacated and case remanded with instruction.

Boggs and Branch, JJ., concur.

       HDC later merged into Dance Hotlanta, Inc., which was also owned solely by Senner.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0266.
    THE MEDICAL CENTER, INC. v. BOWDEN.
    (761 SE2d 116)
   Miller, Judge.

The Medical Center, Inc. (“TMC”) filed a hospital lien to recover the costs of providing emergency medical treatment to Danielle Bowden, an uninsured patient, for injuries she sustained in an automobile accident. When a dispute arose regarding satisfaction of the lien from insurance proceeds, the insurance company filed an interpleader action. Bowden cross-claimed against TMC, alleging that the hospital’s charges were unreasonable because it overcharges uninsured patients. Bowden subsequently moved to compel TMC to produce its pricing agreements with health insurance companies and other information related to its charges of insured and uninsured patients. The trial court granted Bowden’s motion to compel and issued a certificate of immediate review. We granted TMC’s application for interlocutory review, and on appeal TMC contends that the ordered discovery is not relevant nor reasonably calculated to lead to admissible evidence and encompasses confidential and proprietary information. This Court finds that the discovery Bowden seeks is not relevant to her claim that TMC’s medical charges for her treatment were unreasonable, and we reverse the trial court’s order.

We review a trial court’s ruling on a motion to compel discovery for an abuse of discretion. Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 862 (1) (734 SE2d 847) (2012).

On July 1, 2011, Bowden was injured when a rental car in which she was a passenger was involved in an accident. Bowden was taken by ambulance to TMC in Columbus, where she received emergency medical treatment, including surgery, and was hospitalized for three days. The next day, Bowden’s mother signed a consent for treatment and a payment policy acknowledgment. Bowden, who had no health insurance at the time of the accident, was discharged on July 4, 2011. On July 13, Bowden returned to the hospital for physical therapy and signed an admission form obligating her to pay for the therapy. TMC billed Bowden approximately $21,500for her treatment, which included emergency surgery, two CT scans, and physical therapy over the three days that she was hospitalized. TMC filed a hospital lien (OCGA § 44-14-470 et seq.) to recover the costs of Bowden’s care.

Enterprise Rentals owned the vehicle involved in the accident and insured it under a policy with a limit of $25,000. Negotiations ensued between Bowden, TMC, and Enterprise. The hospital offered to settle its $21,500 lien for $8,333, but Bowden refused and no settlement could be reached. Enterprise then filed an interpleader action and paid $25,000 into the registry of the court. Bowden cross-claimed against TMC, alleging that the hospital’s charges were unreasonable and excessive because she was charged more than an insured patient, there was no valid contract between her and TMC, any contract was void due to unconscionability, TMC had engaged in deceptive trade practices, and TMC would be unjustly enriched if it collected the full amount.

To support her claim that TMC’s charges are not reasonable, Bowden propounded discovery seeking TMC’s pricing agreements with insurance companies and information about TMC’s revenue and the number of uninsured patients it treats. TMC objected to Bowden’s discovery requests on relevance and confidentiality grounds, and Bowden filed a motion to compel. Following a hearing, the trial court granted Bowden’s motion, ruling that TMC had to provide the information subject to a protective order.

TMC contends that the discovery Bowden seeks is not relevant to her claim nor reasonably calculated to lead to admissible evidence and therefore the trial court erred in granting Bowden’s motion to compel. We agree.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

OCGA § 9-11-26 (b) (1). “While the extent of discovery is generally within the discretion of the trial court judge, this discretion must be based on sound legal analysis with an eye to promoting the purpose of discovery and limiting its abuse.” (Citation and footnote omitted.) Intl. Harvester Co. v. Cunningham, 245 Ga. App. 736, 739 (1) (538 SE2d 82) (2000).

With this principle in mind, we look to the purpose of the hospital lien statute, which provides that a hospital operating in this state “shall have a lien for the reasonable charges for hospital... care and treatment of an injured person[.]” OCGA § 44-14-470 (b).

The [hospital lien] statute enables hospitals to collect payment for unpaid reasonable charges for furnishing hospital care to an injured person by giving the hospital a lien against any cause of action that accrues to the injured person arising out of the injuries that necessitated the care.

MCG Health v. Kight, 325 Ga. App. 349, 353 (1) (750 SE2d 813) (2013). In short, the lien allows the hospital to step into the shoes of the injured person for purposes of receiving payment from the tortfeasor or the tortfeasor’s insurance company for economic damages represented by the hospital bill. Id. Moreover, the hospital lien statute allows hospitals to collect the full amount of their bills, regardless of insurance “write-offs.” Id.

In her discovery requests, Bowden sought (1) specific, itemized bills of what she would have been charged had she been covered by Medicaid, Medicare, Blue Cross/Blue Shield of Georgia, Tri-care, or TMC’s indigent patient program; (2) total gross revenue received by TMC during the fiscal year prior to July 2011 where full rates were charged pursuant to OCGA § 31-7-11; 12 345678(3) total revenues received by TMC during the fiscal year prior to July 2011 where the rates charged were less than full rates set forth in OCGA § 31-7-11; (4) the percentage of patients in fiscal years 2010 and 2011 that paid the full rates; (5) the percentage of patients in fiscal years 2010 and 2011 that paid less than the full rates; (6) the number of uninsured patients treated in TMC’s emergency room since July 1, 2011; (7) the number of uninsured patients seen in the emergency room since July 1, 2011 and billed for treatment; (8) rate-setting agreements from the years 2010, 2011, and 2012 between TMC and Medicaid, Medicare, Blue Cross/Blue Shield of Georgia, Tri-care, and the indigent patient program; and (9) any admission form used during the previous six years, and the dates the form was used.

At issue in this case is whether TMC’s charges to Bowden were reasonable. Pursuant to OCGA § 31-7-11, hospitals must provide information regarding their charges to consumers upon request, and during the course of litigation, Bowden requested and received this information from TMC.

The discovery that Bowden seeks regarding rate-setting agreements and what Bowden would have been billed under those agreements is not relevant to the issue of whether TMC’s bills for her medical care are reasonable. Under Georgia law, hospitals are free to contract with insurance companies to set preferred rates. See OCGA §§ 33-30-21; 33-30-23. None of the rate-setting agreements that she requests apply to her because she was uninsured. More importantly, even if Bowden had participated in a health care plan, the hospital would be entitled to collect the full amount of its bill under the lien statute, not merely the lower reimbursement rate contracted between the insurance company and the hospital. See Eight, 325 Ga. App. at 353 (1).

Evidence regarding TMC’s revenues and the number and type of patients it treats has no relevance on the issue of whether TMC’s $21,500 charge to Bowden for three days of medical treatment is reasonable. Even in the unlikely scenario that a hospital’s profits from treating uninsured patients may be germane in some instances, such evidence would not be relevant to the issue of whether the particular charges to a particular person are reasonable. Bowden is free to present evidence — whether through an expert, or from other medical providers or consumers — to rebut TMC’s claim that its charge was reasonable given the market rate for medical services in Columbus.

Moreover, this Court has repeatedly rejected claims by uninsured persons that hospitals have committed breach of contract, or engaged in deceptive trade practices, or have been unjustly enriched because they charge a higher rate for uninsured persons than for insured patients. Cox v. Athens Regional Med. Center, 279 Ga. App. 586 (631 SE2d 792) (2006); see also Morrell v. Wellstar Health System, 280 Ga. App. 1 (633 SE2d 68) (2006); Satterfield v. Southern Regional Health System, 280 Ga. App. 584 (634 SE2d 530) (2006); Pitts v. Phoebe Putney Mem. Hosp., 279 Ga. App. 637 (631 SE2d 830) (2006). Cox has foreclosed the argument that hospitals must charge insured and uninsured patients the same rates. Cox, supra, 279 Ga. App. at 586.

At the heart of this case is the notion that those who do not participate in an insurance policy do not benefit from the lower rates hospitals charge insured patients. [Bowden] simply [challenges] the fairness of charging uninsured patients more than insured patients. In doing so, [she] ultimately [seeks] judicial intervention in a commercial transaction (for which the legislature has already established a policy favoring price comparison by the patient), whereby judges and juries would be called on to set appropriate prices for hospitals to charge their patients. We do not answer this call[.]

Cox, supra, 279 Ga. App. at 588-589 (1) (a).

As to the admission forms she requests, Bowden has not shown that admission forms that may have been signed by other patients at other times have any relevancy to her claim regarding the hospital lien. The admission form that her mother signed on her behalf is already part of the record.

Decided June 24, 2014

Fischer Scott, Bobby L. Scott, for appellant.

Charles A. Gower, for appellee.

Since the broad range of discovery Bowden requests is not relevant to her claim, the trial court abused its discretion in granting her motion to compel.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

       Bowden is not a minor.

       Pursuant to OCGA § 31-7-11, hospitals must provide, upon request, a written summary of certain hospital and related services charges, including but not limited to:
      (1) The average total charges per patient day for the facility’s previous fiscal year;
      (2) The daily rate for a room in said hospital, which rate shall include an explanation of the categories of services included in said charge;
      (3) Anesthesia charges, with an explanation of the categories of services included in this charge;
      (4) Operating room charges;
      (5) Recovery room charges;
      (6) Intravenous administration charges;
      (7) Emergency room charges, with an explanation of the categories of services included in the charge;
      (8) The charge for the patient care kit or admission kit or other such items furnished to the patient on admission;

        (9) Charges for specific routine tests, including but not limited to a complete blood count, urinalysis, and chest X-ray; and
      (10) Charges for specific special tests, including but not limited to electrocardiogram, electroencephalogram, CAT scan of the head, CAT scan of liver, CAT scan of lungs, CAT scan of skeletal system, spirometry, and complete pulmonary function.
      Such written summary of charges shall be composed in a simple clear fashion so as to enable consumers to compare hospital charges and make cost-effective decisions in the purchase of hospital services.

       Bowden tries to distinguish this case from Cox and its progeny on the ground that, in those cases, the patients signed a consent form for treatment, accepting responsibility for paying the hospital charges, whereas she did not personally sign a consent form prior to receiving emergency medical treatment. See, e.g., Cox, supra, 279 Ga. App. at 589-592 (1) (b). However, Bowden’s mother signed a consent form on Bowden’s behalf (OCGA § 31-9-2 (a) (3)) and it is undisputed that Bowden received emergency medical treatment from TMC. Moreover, by law, consent is implied for emergency medical treatment. See OCGA § 31-9-3 (b).

       In light of our holding, we need not address TMC’s second contention that the ordered discovery would reveal confidential or proprietary information.


author: BARNES, Presiding Judge.

text:
    A14A0340.
    BARLOW v. THE STATE.
    (761 SE2d 120)
   BARNES, Presiding Judge.

After police officers seized drugs from a residence in Spalding County, Frederick Lamar Barlow was indicted for several drug-related offenses, including trafficking in cocaine and possession of marijuana with intent to distribute. Barlow moved to suppress the drugs seized from the residence, to reveal the identity of the confidential informant who provided information for the search warrant of the residence, and to reveal any deal reached between the State and the informant. Following an evidentiary hearing, the trial court denied the motions upon finding that Barlow had no legitimate expectation of privacy in the residence and thus lacked standing to challenge the search. Barlow subsequently was tried and convicted before a jury of multiple drug-related offenses. Barlow then filed a motion for new trial, asserting, among other things, that an inculpatory statement he made to the police was improperly admitted at trial and that his trial counsel rendered ineffective assistance. Following a hearing that Barlow was not permitted to attend, the trial court denied the motion for new trial, leading to this appeal.

On appeal, Barlow contends that the trial court erred (1) by denying his motion to suppress the evidence seized from the residence on the ground that he lacked standing; (2) by denying his motions to reveal the identity of, and any deals reached with, the confidential informant; (3) by admitting his inculpatory statement to the police without first conducting a hearing outside the presence of the jury and determining the voluntariness and admissibility of the statement; (4) by denying his claims of ineffective assistance of counsel; and (5) by refusing to permit him to attend and testify in support of his ineffective assistance claims at the hearing on his motion for new trial. For the reasons discussed below, we affirm.

1. Barlow contends that the trial court erred in denying his motion to suppress the evidence seized from the residence. The trial court, however, was authorized to find that Barlow lacked standing to challenge the search and seizure at issue.

In considering an appeal from [the] denial of a motion to suppress, this Court construes the evidence in favor of the trial court’s ruling, and we review de novo the trial court’s application of the law to undisputed facts. Additionally, we must defer to the trial court’s determination on the credibility of witnesses, and the trial court’s ruling on disputed facts must be accepted unless it is clearly erroneous. Moreover, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.

(Citation and punctuation omitted.) Reid v. State, 321 Ga. App. 653 (742 SE2d 166) (2013).

So viewed, the evidence showed that police officers received a tip from a confidential informant that a man named “Fred” was selling drugs in the Sherbrooke Way neighborhood in Spalding County. The informant provided a physical description of “Fred” and noted that he always wore latex gloves when handling cocaine. The informant also told the officers that “Fred” drove a green Ford Thunderbird and provided them with directions to the residence in the Sherbrooke Way neighborhood where the drugs were sold.

During a police interview, the confidential informant identified Barlow in a photograph as the man he knew as “Fred.” Based on the information provided by the informant, the officers also were able to identify the Sherbrooke Way residence where the drug activity was being conducted. Tax records reflected that the residence was owned by Barlow’s mother and stepfather.

At the direction of the officers, the confidential informant conducted two controlled buys of cocaine from Barlow at the Sherbrooke Way residence. Following the controlled buys, the officers applied for and obtained a search warrant for the residence. During the execution of the search warrant, the officers found 375.8 grams of marijuana and 79.38 grams of powder cocaine. A large amount of the marijuana and a set of digital scales were found in a utility room inside the garage; two bags of marijuana were found in two women’s purses in a hall closet near the front door; and the powder cocaine, a second set of digital scales, and latex gloves were found in a hallway bathroom. Officers also found a pistol in one of the bedrooms.

Barlow was not present at the residence when the officers entered to execute the search warrant. Neither were Barlow’s mother and stepfather present at the residence. However, Barlow’s brother was at the residence when the search occurred and was detained by the officers.

Several officers were strategically placed on roadways around the Sherbrooke Way residence to conduct surveillance as the search was being executed. They were told to be on the lookout for Barlow driving a green Ford Thunderbird. One of the officers observed Barlow driving a car matching that description on a road near the residence. The officer initiated a traffic stop after he observed Barlow fail to maintain his lane of travel. Another officer conducted a free air search around Barlow’s car with a drug-sniffing dog while the initial traffic stop was in progress. After the dog alerted to the odor of narcotics, the officers searched Barlow’s car and found baggies, digital scales, latex gloves, and cocaine residue.

Barlow was arrested and advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Barlow agreed to speak with the officers and told one of them that the drugs in the residence belonged only to him and that he did not want his other family members to be charged. The officer responded that he would “accept [Barlow’s] statement, but... would prefer to have him voluntarily write a handwritten statement claiming the items located inside of the house.” The officer explained to Barlow that without a written statement from him, everyone who lived at the residence would be jointly charged with the drug offenses because the drugs had been found in the common areas of the residence. Barlow then wrote out a statement in which he admitted that the drugs and pistol found in the residence belonged only to him.

Barlow was indicted for several drug-related offenses relating to the drugs seized from the Sherbrooke Way residence, including trafficking in cocaine and possession of marijuana with intent to distribute. Barlow then filed a motion to suppress the items seized from the residence, contending that the search of the residence violated his Fourth Amendment rights in several respects.

At the hearing on his motion to suppress, Barlow testified that only his mother, stepfather, and brother lived at the Sherbrooke Way residence. Barlow denied currently living at the residence or having a bedroom there. Barlow further testified that he told the officer that the drugs and pistol found at the residence belonged to him only because the officer had threatened to arrest his other family members.

Later at trial, Barlow’s girlfriend testified that Barlow currently lived with her and had not lived at the Sherbrooke Way residence for several years. Barlow’s mother testified that she, her husband, and Barlow’s brother lived at the residence, but that Barlow had moved out several years ago and no longer had a bedroom there. Barlow’s mother also testified that the two purses where marijuana was found in the hall closet belonged to her, although she denied having any knowledge of the drugs found in them. Additionally, Barlow testified at trial that he currently lived with his girlfriend, had not lived at the Sherbrooke Way residence for five years, and had a bedroom there when he was younger but “didn’t have anything to do with that house anymore.” Barlow also denied any knowledge of the drugs at the residence and claimed that he provided his written statement to the officer only because he had threatened to arrest his mother and brother.

The trial court denied Barlow’s motion to suppress the evidence seized from the Sherbrooke Way residence on the ground that Barlow lacked standing to challenge the search. On appeal, Barlow challenges that ruling and contends that the trial court should have reached the merits of his motion to suppress. We are unpersuaded.

A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. The burden is on the [one] claiming a violation of Fourth Amendment rights to demonstrate that [he has] standing to contest such violation, i.e., that [he has] a legitimate expectation of privacy in the premises searched.

(Punctuation and footnotes omitted.) State v. Carter, 305 Ga. App. 814, 816 (1) (701 SE2d 209) (2010). See Jones v. State, 320 Ga. App. 681, 685 (2) (740 SE2d 655) (2013). While “overnight guests in a private residence may have a legitimate expectation of privacy in that residence [, a] person who is merely present with the consent of the householder[ ]... has no such expectation.” (Citations and punctuation omitted.) Id. Where the evidence relevant to the issue of standing is in conflict, we will defer to the trial court’s findings related to those disputed facts and “construe the evidence most favorably to support the trial court’s ruling on the suppression motion.” (Citation and punctuation omitted.) Henderson v. State, 211 Ga. App. 102, 103 (2) (438 SE2d 181) (1993).

Here, there was evidence to support the trial court’s determination that Barlow did not have a legitimate expectation of privacy in the Sherbrooke Way residence. As previously noted, Barlow testified that only his mother, stepfather, and brother lived at the Sherbrooke Way residence, and he denied currently living at the residence or having a bedroom there. Barlow also disavowed his prior statements to the police in which he claimed ownership of the drugs and pistol found at the residence. Barlow’s girlfriend and mother similarly testified that he did not currently live at the residence and had not done so for several years.

Based on this combined testimony introduced at the suppression hearing and at trial, the trial court was entitled to find that Barlow did not have a legitimate expectation of privacy in the Sherbrooke Way residence and thus was without standing to challenge the search. See Carter, 305 Ga. App. at 816-817 (1) (defendants failed to show that they had standing to challenge search of rental house where drugs and drug paraphernalia were found, where there was no evidence that they lived there or were overnight guests); Todd v. State, 275 Ga. App. 459, 461 (1) (620 SE2d 666) (2005) (defendant lacked standing because he failed to demonstrate that he had a reasonable expectation of privacy in his friend’s mobile home); Atwater v. State, 233 Ga. App. 339, 340-341 (2) (503 SE2d 919) (1998) (defendant failed to show that he had standing to challenge police officers’ entry into room that his girlfriend was renting). See also Sears v. State, 268 Ga. 759, 763 (4) (493 SE2d 180) (1997) (noting that defendant would lack standing to challenge search of his mother’s house if he no longer lived there and had no expectation of privacy in the house). It follows that the trial court committed no error in denying Barlow’s motion to suppress the drugs and pistol seized from the residence.

2. Along with his motion to suppress the evidence seized at the Sherbrooke Way residence, Barlow moved to require the State to reveal the identity of the confidential informant who had supplied the information for the search warrant of the residence and any deals that had been reached with the informant. The trial court denied the motion without conducting an in-camera hearing after concluding that Barlow lacked standing to challenge the search warrant and that the confidential informant’s testimony would not be material at trial. Barlow now challenges that ruling on appeal, but we discern no error by the trial court.

The due process concept of fundamental fairness requires that the public interest in protecting the flow of information to law enforcement officials be balanced against the right of the accused to a full and fair opportunity to defend himself. Determining whether the State must reveal the identity of the confidential informant involves several steps. First, the defendant must make a showing (a) that the confidential informant allegedly participated in or witnessed the transaction and his testimony would be material to the defense on the issue of guilt or punishment; (b) that the informant’s testimony would be relevant because testimony from witnesses for the prosecution and the defense will be in conflict; and (c) that the informant’s testimony is necessary because he would be the only available witness who could amplify or contradict the testimony of these witnesses. If the defendant meets this threshold showing that the informant’s testimony could be relevant, material, and necessary, the second step is for the trial court to conduct an in-camera hearing to determine whether that initial showing is supported by the informant’s actual testimony.

(Citations and punctuation omitted; emphasis in original.) Hernandez v. State, 308 Ga. App. 136, 137 (706 SE2d 627) (2011). Additionally, due process requires that the State reveal “any agreement, even an informal one, with a witness concerning criminal charges pending against that witness,” Williamson v. State, 300 Ga. App. 538, 545 (4) (b) (685 SE2d 784) (2009), if the witness testifies at the defendant’s trial. Johnson v. State, 275 Ga. 630, 632 (8) (570 SE2d 309) (2002); Serrate v. State, 268 Ga. App. 276, 280 (3) (b) (601 SE2d 766) (2004).

Here, the confidential informant’s sole involvement in the case was providing an initial tip to the police officers and participating in the two controlled buys of cocaine from Barlow at the Sherbrooke Way residence. The. officers then relied upon the tip and the controlled buys to obtain a search warrant for the residence. The State did not indict Barlow for the sales of cocaine to the informant. Rather, the State indicted Barlow solely for the drugs found in the residence upon the execution of the search warrant. The informant was not present during the execution of the search warrant and was not a witness to the offenses forming the basis for the present prosecution. Furthermore, as previously noted, Barlow was without standing to challenge the search warrant obtained for the residence based on the information provided by the informant.

Under these circumstances, Barlow failed to make a threshold showing that the testimony of the confidential informant would be material or relevant to his defense on the issue of guilt or punishment. The trial court therefore did not err in declining to conduct an in-camera hearing and in refusing to require the State to reveal the identity of the informant. See Reid, 321 Ga. App. at 656 (2); Browner v. State, 265 Ga. App. 788, 792 (2) (595 SE2d 610) (2004); Turner v. State, 247 Ga. App. 775, 777 (2) (544 SE2d 765) (2001). Furthermore, because the confidential informant did not testify at the suppression hearing or at trial, and because Barlow did not have standing to challenge the search warrant that was obtained based on the information supplied by the informant, the trial court likewise did not err in refusing to require the State to reveal any deal reached with the informant. See Johnson, 275 Ga. at 632 (8); Serrate, 268 Ga. App. at 280 (3) (b).

3. Barlow contends that the trial court erred in admitting his statement to the police that the drugs and pistol found in the Sherbrooke Way residence belonged to him without first conducting a hearing outside the presence of the jury and determining the voluntariness and admissibility of the statement. We disagree.

Barlow did not file a motion in limine or a request for a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964) to challenge the admissibility of his inculpatory statement to the police. Furthermore, defense counsel did not object to the introduction of Barlow’s statement at trial. Rather, Barlow elected to testify on his own behalf, taking the position that the statement was coerced by the officer’s threat to arrest his other family members if he did not provide a written statement. Under these circumstances, “due process does not require a voluntariness hearing absent some contemporaneous challenge to the use of the statement.” (Citation and punctuation omitted; emphasis in original.) Buckner v. State, 321 Ga. App. 715, 716 (1) (742 SE2d 528) (2013). See Brogdon v. State, 255 Ga. 64, 67 (2) (335 SE2d 383) (1985); Richardson v. State, 265 Ga. App. 880, 882-883 (2) (595 SE2d 678) (2004). Having failed to make any contemporaneous challenge to his statement, Barlow has waived any error in its admission. See Buckner, 321 Ga. App. at 716 (1).

4. Barlow contends that his trial counsel rendered ineffective assistance. Again, we disagree.

[T]o prevail on... a claim of the ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), a criminal defendant must demonstrate that his counsel’s performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different; on appeal, this Court is to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but it is to independently apply the legal principles to the facts.

(Citation omitted.) Johnson v. State, 290 Ga. 382, 383 (2) (721 SE2d 851) (2012). If the defendant “fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” Watson v. State, 289 Ga. 39, 45 (12) (709 SE2d 2) (2011).

(a) Barlow argues that his trial counsel was ineffective in failing to request a Jackson-Denno hearing to test the voluntariness of the inculpatory statement he made to the police after his arrest. According to Barlow, his statement was coerced by the interviewing officer, who explained to him that because the drugs had been found in the common areas of the Sherbrooke Way residence, his family members would also be charged with possession of the drugs if he did not provide a written statement accepting sole responsibility. Given this alleged coercion, Barlow argues that if his trial counsel had made a contemporaneous objection to the admission of his inculpatory statement, the trial court would have conducted a Jackson-Denno hearing and likely would have excluded the statement as involuntary. We are unpersuaded.

The officer’s statement regarding the potential charging of other family members for the drug offenses fell into the category of a mere “truism” or “recounting of the facts” rather than an offer of benefit or threat of injury. See Anderson v. State, 224 Ga. App. 608, 610 (1) (481 SE2d 595) (1997); Sampson v. State, 165 Ga. App. 833, 835 (9) (303 SE2d 77) (1983); Copeland v. State, 162 Ga. App. 398, 400 (3) (291 SE2d 560) (1982). As such, Barlow has failed to show that his statement was involuntary and likely would have been excluded had a Jackson-Denno hearing been conducted. Consequently, he cannot meet the prejudice prong of the Strickland test. See Bryant v. State, 320 Ga. App. 838, 843 (4) (b) (740 SE2d 772) (2013).

Furthermore, the trial record reflects that the officer made the statement regarding other family members before Barlow provided his written statement to the police, but after Barlow had already verbally told the officers that the drugs and pistol in the residence belonged to him. Hence, even if Barlow’s written inculpatory statement would have been excluded as involuntary upon a timely objection by trial counsel, the officer’s testimony regarding his verbal inculpatory statement still would have been admitted and heard by the jury. For this additional reason, Barlow cannot satisfy the prejudice prong of the Strickland test. See Williams v. State, 292 Ga. 844, 848 (3) (a) (742 SE2d 445) (2013) (defendant cannot establish prejudice resulting from trial counsel’s failure to object to certain evidence, if the evidence would have been merely cumulative of other properly admitted evidence).

(b) Barlow also argues that his trial counsel was ineffective in failing to establish at the suppression hearing that he had a legitimate expectation of privacy in the Sherbrooke Way residence. Barlow’s contention appears to be that his trial counsel should have elicited testimony from him at the suppression hearing that he continued to have a possessory interest in the residence after moving out because he still stored personal belongings in a room there.

However, at the hearing on the motion for new trial, Barlow’s trial counsel testified that he had consulted with Barlow, and Barlow had informed him that he had moved out of the Sherbrooke Way residence but never shared with him that he had kept a room or otherwise retained any type of possessory interest in the residence after moving out. Barlow cannot show that his trial counsel was deficient in failing to explore a matter at the suppression hearing of which Barlow had failed to make him aware. See Ellis v. State, 316 Ga. App. 352, 361 (6) (729 SE2d 492) (2012). Accordingly, Barlow has failed to satisfy the deficiency prong of the Strickland test and cannot succeed on his ineffectiveness claim. See id.

5. Barlow further contends that the trial court committed reversible error by refusing to allow him to attend the hearing on his motion for new trial so that he could testify and assist his counsel in presenting his claim of ineffective assistance. We disagree.

Generally, a criminal defendant does not have a constitutional right to be present at the hearing on his motion for new trial. See Rosser v. State, 284 Ga. 335, 336 (2) (667 SE2d 62) (2008); Mantooth v. State, 303 Ga. App. 330, 336 (2) (693 SE2d 587) (2010). “Rather, due process affords him the right to be present at such a hearing only if his presence would contribute to the fairness of the procedure.” (Citation, punctuation andfootnote omitted.) Mantooth, 303 Ga. App. at 336 (2). See Wallace v. State, 294 Ga. App. 159, 161 (2) (669 SE2d 400) (2008). Moreover, a defendant must show that harm as well as error resulted from the exclusion of testimony at the new trial hearing. See Ellis, 316 Ga. App. at 361 (6).

In the present case, the trial court allowed defense counsel to make a proffer of what Barlow would testify to at the new trial hearing and how his testimony would support his claims of error. Defense counsel proffered that in support of his ineffective assistance claim, Barlow would testify that he continued to have a possessory interest in the Sherbrooke Way residence after moving out because he still stored personal belongings in a room there. Defense counsel argued that Barlow’s testimony would support his claim that his trial counsel was ineffective in failing to elicit testimony from him at the suppression hearing that would have shown that he continued to have a possessory interest in the residence even after having moved out, and thus would have shown that he had standing to challenge the search of the residence.

After hearing the proffer, the trial court concluded that Barlow’s proffered testimony would simply contradict his own testimony at the suppression hearing and at trial that he no longer lived at the Sherbrooke Way residence and no longer had a room there. Because Barlow’s testimony would have merely impeached his own prior testimony, the trial court concluded that Barlow’s presence was unnecessary at the new trial hearing and denied Barlow’s motion seeking a production order for his attendance.

Pretermitting whether the trial court erred in refusing to enter the production order for Barlow’s attendance at the new trial hearing, we conclude that Barlow cannot show harm resulting from the denial. It is clear from the trial court’s statements at the new trial hearing that the court would not have found Barlow’s testimony that he still stored belongings in a room at the Sherbrooke Way residence to be credible, in light of Barlow’s prior testimony at the suppression hearing and at trial in which he repeatedly denied having any current connection with the residence. Furthermore, as noted supra in Division 4 (b), trial counsel testified at the new trial hearing that he had consulted with Barlow, and Barlow had informed him that he had moved out of the Sherbrooke Way residence but never shared with him that he had retained any type of possessory interest in the residence after moving out. Thus, irrespective of Barlow’s proffered testimony, the trial court would have been entitled to believe his trial counsel’s testimony and conclude that counsel was not deficient in failing to explore a matter at the suppression hearing of which Barlow had failed to make him aware. As such, Barlow’s proffered testimony would not have affected the outcome of his ineffective assistance claim, and any error in the trial court’s ruling was harmless. See Ellis, 316 Ga. App. at 361 (6).

Decided June 24, 2014.

Gerald P. Privin, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Jeremy M. Hayes, Assistant District Attorneys, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       An officer testified that based on his experience, drug dealers often use latex gloves when handling cocaine to prevent the drug from being absorbed into their skin.

       Barlow had standing to challenge the search of his car, and he filed a separate motion to suppress the drugs and drug paraphernalia seized from the car, which the trial court denied. In his brief on appeal, Barlow suggests that the stop of his car was based on information provided to the police by the confidential informant. But the record reflects that the police officer stopped his car for failure to maintain its lane of travel in violation of OCGA § 40-6-48 (1). Thus, separate and apart from any information provided by the confidential informant, the officer had sufficient articulable suspicion to stop Barlow’s car based solely on the traffic violation. See Steinberg v. State, 286 Ga. App. 417, 418-419 (1) (650 SE2d 268) (2007) (failure to maintain lane provides officer with articulable suspicion to justify traffic stop).


author: Boggs, Judge.

text:
    A14A0512.
    DAVIS v. THE STATE.
    (761 SE2d 139)
   Boggs, Judge.

Zekemian Davis appeals from his convictions of two counts of child molestation. He contends that the trial court erred by (1) denying his request under Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), for a detailed list of all arrests and convictions for all the State’s witnesses; and (2) prohibiting his attempt to voir dire prospective juries about whether testimony from a child would impair their judgment in the case. For the reasons explained below, we affirm.

1. We find no merit in Davis’ contention that the trial court erred by failing to order the State to obtain and provide him with information about the criminal records for its witnesses. The record shows that the State provided Davis with a copy of its file, and Davis has not shown that the State obtained the criminal histories and failed to produce them to him. As Davis’ appellate counsel candidly acknowledges, the Supreme Court of Georgia has held that “Brady does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense.” Hines v. State, 249 Ga. 257, 258 (1) (290 SE2d 911) (1982). Consequently, the State is not required to obtain and provide to a defendant the criminal histories of its witnesses. Lucas v. State, 274 Ga. 640, 647-648 (12) (555 SE2d 440) (2001). While Davis makes an impassioned plea on appeal for a change in our law on this issue, the doctrine of stare decisis requires that this court “faithfully adhere to the precedents established by the Supreme Court of Georgia.” (Citations and footnote omitted.) Whorton v. State, 321 Ga. App. 335, 339 (1) (741 SE2d 653) (2013).

2. Davis also contends that the trial court erred by denying his request to ask the following question during general voir dire of potential jurors:

Next question I want to ask is that the testimony — from hearing testimony from a child, because I’m quite sure it’s going to be children testifying, would that impair your judgment against myself, the defendant, or make you feel like that you should go towards the State, or would that impair your judgment in this case?

The trial court responded, “Well, that’s kind of prejudging the evidence.” When the State objected, the trial court ruled that it would not allow the question and instructed Davis, who was proceeding pro se, to “go to another question.” Davis then responded that he had no more questions, and the trial court announced that it would proceed with individual questions.

The Supreme Court of Georgia has summarized the scope of voir dire in Georgia as follows:

Much like cross-examination is the engine of truth in our justice system, voir dire is the engine of selecting a jury that will be fair and impartial. Thus, while recognizing that trial judges must have substantial discretion to oversee jury selection and that this subject is largely governed by state laws and practices, the Supreme Court of the United States has held that due process requires that voir dire be sufficient to allow the parties and the trial court to elicit juror bias....
Georgia has a broadly worded statute describing the scope of voir dire in both criminal and civil cases:
In the examination, the counsel for either party shall have the right to inquire of the individual prospective jurors examined touching any matter or thing which would illustrate any interest of the prospective juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the prospective juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the prospective juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the prospective juror.
OCGA§ 15-12-133. This Court has held that OCGA § 15-12-133 allows voir dire questions beyond those that the Constitution would require allowing.

(Citations and punctuation omitted; emphasis in original.) Ellington v. State, 292 Ga. 109, 124-125 (7) (b) (735 SE2d 736) (2012). The Ellington court also explained that in voir dire,

[t]he line between permissible inquiry into “prejudice” (a juror’s fixed opinion that a certain result should automatically follow from some fact, regardless of other facts or legal instructions) and impermissible questions of “pre-judgment” (speculation about or commitment to the appropriate result based on hypothesized facts) can be hazy. Thus, in this area as in other areas of voir dire practice, appellate courts should give substantial deference to the decisions made by trial judges, who oversee voir dire on a regular basis, are more familiar with the details and nuances of their cases, and can observe the parties’ and the prospective jurors’ demeanor.

Id. at 127 (7) ft). It concluded its review of the relevant law with the admonition:

Finally, as emphasized above, decisions as to what, if any, facts of a particular criminal case beyond the charges and sentencing options qualify as “critical” in terms of risking juror partiality can be difficult and context-specific. The trial court’s decision on this point should be given significant deference in appellate review, and it should be reversed only for a manifest abuse of discretion. In holding that trial courts have discretion in allowing such voir dire questions, we do not suggest in any way that such questions should be routine, even in death penalty cases. Questions are appropriate only when not asking them runs a real risk that juror partiality driven by the fact at issue will not otherwise be identified in voir dire.

(Citations and footnote omitted; emphasis in original.) Id. at 137 (7) (e).

In this case, the trial court read the indictment to the jury at the beginning of the selection process, and it clearly identified the victim as being a child under the age of sixteen years in each of the counts. After swearing the jury, the trial court posed the following questions to all of the jurors: (1) “Have any of you for any reason formed and expressed any opinion in regard to the guilt or innocence of the accused?”; (2) “Have you any prejudice or bias resting on your mind either for or against the accused?”; (3) “Is your mind perfectly impartial between the State and the accused?” It also explained at length the need for jurors

Decided June 24, 2014

Gerard B. Kleinrock, for appellant.

to be able to set aside any . . . preconceived ideas, opinions, conclusions, and prejudices and base your verdict solely on the evidence that’s admitted during the course of the trial, the law which I will give you in my instructions, and whatever common sense you may have and nothing else.... And we just need to find twelve or thirteen jurors who can sit and fairly and impartially weigh the evidence, listen to the law, and reach a fair and impartial verdict.

It also inquired as to whether any jurors felt that they could not do these things.

Additionally, during its general voir dire questions, the State sought to identify jurors who presently or in the past had children under the age of sixteen living in their home, cared for a child who was the victim of child molestation or a sexual offense, had a close friend, family member, or themselves been the victim of child molestation or a sexual offense, had a close friend, family member, or themselves been accused of committing child molestation or a sexual offense, or who had a problem with the nature of the case (statutory rape and child molestation) “such that you question your ability to be fair and impartial.”

Based upon the reading of the indictment and the general voir dire questions posed to the jury by both the trial court and the State, we conclude that the trial court did not abuse its broad discretion by denying Davis’ question seeking to expose bias based upon a child testifying, because precluding this question did not create “a real risk that juror partiality driven by the fact at issue will not otherwise be identified in voir dire.” Ellington, supra, 292 Ga. at 137 (7) (e).

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.


text:
    A14A0548.
    PATEL et al. v. PATEL et al.
    (761 SE2d 129)
   Miller, Judge.

Girish Patel and Kakas, Inc. (“Appellants”) appeal from the grant of a motion to enforce a settlement agreement filed by Suryakant Patel and DJA Hospitality, Inc. (“Appellees”). Appellants generally contend that the agreement was not binding on Kakas because Girish Patel (“Girish”) signed the settlement agreement in his individual capacity; Girish did not have the legal ability to fulfill some of the agreement’s conditions; and the contract was unenforceable because the terms were not definite, certain, and unambiguous. We reverse because a question of fact remains as to the capacity in which Girish executed the settlement agreement.

On appeal from a trial court’s order on a motion to enforce a settlement agreement, we apply a de novo standard of review. Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the nonmovant’s case. Thus, we view the evidence in a light most favorable to the nonmoving party.

(Citations, punctuation and footnotes omitted.) Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529 (677 SE2d 328) (2009).

So viewed, the limited record shows that Girish is the president of Kakas, which was the franchisee of a Holiday Inn Express in Commerce, Georgia. In May 2010, Girish and Kakas were involved in mediation with Appellees as part of a lawsuit filed by Appellees. At the completion of mediation, Girish signed an agreement that provided for a “Full and Final Settlement.” The agreement provided, inter alia, that: Girish would transfer two properties — the Scottish Inn and an America’s Best hotel — by limited warranty deed to Suryakant Patel (“Sam”); Girish would lease the Holiday Inn Express to Sam for one year; Girish would simultaneously provide Sam with a one-year option to purchase the Holiday Inn Express; Sam’s option to purchase was contingent upon him obtaining financing of not more than $2,750,000 at an interest rate of five percent or less; Girish was required to stay current on the present loan covering the Holiday Inn Express; Sam was required to pay the Holiday Inn Franchise fees and expenses; and Sam was required to pay $2,500 to an individual named “Daxa” for four consecutive months as severance pay.

According to Appellees, they paid $15,000 in application fees to have the Holiday Inn Express franchise transferred to them and their application was approved, although certain repairs needed to be completed. Appellees then contacted Girish’s then-counsel to inform him that they were ready to close on the contracts agreed upon in the settlement agreement. Girish, with new counsel, then requested a jury trial on the underlying disputes, leading Appellees to file the instant motion to enforce the settlement agreement. In response, Appellants argued that the mediation document at issue was unenforceable because it consisted of promises to enter into future contracts, Girish signed the document in his personal capacity, Girish did not have the legal authority to transfer the Scottish Inn and the America’s Best properties to Sam by warranty deed, and the mediation document was otherwise not definite, certain, and unambiguous. The trial court granted Appellees’ motion, finding that Kakas owned the Scottish Inn and America’s Best hotel, Girish was chief executive officer and sole shareholder of Kakas, and, as a result, Girish could effectuate the transfers of the deeds. The trial court also ruled that the settlement agreement was definite, unambiguous, and enforceable.

1. On appeal, Appellants argue that the trial court erred in granting the motion to enforce the settlement agreement because Girish signed the settlement agreement in his individual capacity, he did not hold legal title to these properties, and, therefore, the agreement was not binding on Kakas. For the following reasons, we agree that questions of fact remain as to this issue.

The corporate identity is entirely separate from the identity of its officers and stockholders. A corporation and even its sole owner are two separate and distinct persons. One person may own all the stock of a corporation, and still such individual shareholder and the corporation would, in law, be two separate and distinct persons. And a corporation is not generally bound by the acts of its officers undertaken in their private capacities.

(Citations and punctuation omitted.) Nationwide Mtg. Svcs. v. Troy Langley Constr. Co., 280 Ga. App. 539, 542 (634 SE2d 502) (2006).

Generally, a single signature denotes that the person is signing in either an individual or representative capacity, but not both. Groth v. Ace Cash Express, 276 Ga. App. 350, 353 (623 SE2d 208) (2005). Moreover, “[w]here there is a written contract, not under seal and not containing [an] integration ... clause, parol [evidence] is admissible to show the capacity in which one signed such agreement.” (Citation omitted.) Volume Tire Co. v. O’Conner, 190 Ga. App. 242, 243 (1) (378 SE2d 415) (1989).

(a) In this case, the settlement agreement was signed by Girish, but the agreement does not designate whether he signed in his individual or representative capacity or both. Furthermore, Girish stated in his personal affidavit that he signed the settlement agreement only in his individual capacity and not as a Kakas representative. Girish also stated in an affidavit which he submitted in his official capacity as Kakas president that Kakas did not sign the mediation document. These affidavits were sufficient to create an issue of fact as to the capacity in which Girish signed the settlement agreement. See Volume Tire, supra, 190 Ga. App. at 243 (1).

(b) Although Kakas does not dispute participating in the mediation, there is also an issue of fact as to whether Girish, or the attorney representing Girish, had the authority to enter into a contract on behalf of Kakas. “As a general rule, the question of authority to do an act, when it is to be determined from disputed facts or undisputed facts from which conflicting inferences may be drawn, must be decided by the jury as a question of fact or as a question of mixed fact and law.” (Citation omitted.) Atlanta Limousine Airport Svcs. v. Rinker, 160 Ga. App. 494, 495 (1) (287 SE2d 395) (1981).

(i) Here, a question of fact remains as to whether the agreement compelled the transfer of the America’s Best property. Appellees argue that Girish is the controlling shareholder of Kakas, which holds the deed to the America’s Best property. The trial court found that Girish is the sole shareholder of Kakas, but there is no evidence in the record to support this finding. Certainly, if Girish were the sole shareholder, he would be the only person with authority to effectuate the transfer of the America’s Best property. See Walker v. Ace Auto Sales & Leasing, 294 Ga. App. 267, 269 (2) (668 SE2d 877) (2008) (sole shareholder is the only person with actual or apparent authority over corporation). The record evidence, however, shows only that Girish is the president of Kakas, and there is no evidence reflecting the ownership of the corporation. Consequently, a question of fact remains as to whether Girish bound Kakas to transfer America’s Best to Appellees.

(ii) Similarly, there is a question of fact as to whether the agreement is enforceable to compel the transfer of the Scottish Inn. Appellants argue that Girish did not have the legal authority to agree to transfer the Scottish Inn because the deed is in the name of M.S.K.G.P. Corporation (“MSKGP”). The deed included in the record does not refer to the Scottish Inn, and there is no evidence identifying the property as being the Scottish Inn referred to in the settlement agreement. Additionally, the deed shows that Girish quitclaimed an interest in the property to MSKGP in 2008. The evidence does not show that Girish is an officer of MSKGP, and no evidence in the record shows whether he has any ownership interest in the corporation. Consequently, it remains unclear whether and to what extent Girish could effectuate the transfer of the Scottish Inn via warranty deed.

Decided June 24, 2014

(c) As for whether the attorney signing the agreement had the authority to bind Kakas, the record presents more questions of fact. “An attorney has apparent authority to enter into a settlement agreement on behalf of a client; and the client will be bound by such agreement, even in the absence of express authority, where the opposite party is unaware of any limitation on the attorney’s authority.” (Citations omitted.) Omni Builders Risk v. Bennett, 313 Ga. App. 358, 360 (1) (721 SE2d 563) (2011). Here, the settlement document reflects that the attorney signed as the “Attorney for Defendant,” yet the only named defendant in the agreement was Girish, and the settlement agreement contains no reference to Kakas at all. Moreover, the record does not show that Girish’s attorney also represented Kakas, and we cannot presume that the attorney did. See, e.g., Addley v. Beizer, 205 Ga. App. 714, 716 (1) (423 SE2d 398) (1992) (attorney for corporation is not presumed to represent officers of corporation because the corporation and officers are distinct legal entities). Consequently, there is a question of fact as to the attorney’s apparent authority to bind Kakas. See Omni, supra, 313 Ga. App. at 362 (1) (where client was present and refused to sign settlement agreement, the evidence did not support claim that attorney, who first signed the agreement, had apparent authority to bind client).

Given the limited record, there are questions of fact as to whether Girish signed the document in his individual or representative capacity and whether he, or his attorney, had the authority to enter into a contract to transfer the America’s Best and Scottish Inn properties via limited warranty deed. Consequently, we must reverse the trial court’s grant of Appellees’ motion to enforce.

2. In light of our disposition in Division 1, we need not address Appellants’ remaining arguments.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

Kumar, Prabhu, Patel & Banerjee, Roy A. Banerjee, Angelina M. Kim, for appellants.

Frank G. Goldman, Parag M. Mehta, Lambert & Reitman, M. Joseph Reitman, Jr., for appellees.