author: DOYLE, Chief Judge.

text:
    A16A1856.
    CHEROKEE COUNTY BOARD OF TAX ASSESSORS v. MASON.
    (798 SE2d 32)
   DOYLE, Chief Judge.

This appeal arises from the trial court’s determination that Milford Mason was entitled to a renewal beginning in 2013 of a ten-year Conservation Use Valuation Assessment (“CUYA”), pursuant to OCGA § 48-5-7.4, by the Cherokee County Board of Tax Assessors (“the Board”) as to certain real property. For the reasons that follow, we affirm.

[Ajnyone seeking [a tax] exemption must carry the burden of proof to show entitlement, and the exemption statute is strictly construed against the person claiming the exemption. Other than such burden to prove the exemption, the [Board] has the burden of proof by a preponderance of evidence that its assessment is correct.

A taxpayer may appeal a decision of the Board to the Board of Equalization, and from there to the superior court, which performs a de novo appeal of a decision of the Board of Equalization. On appeal from a superior court, this Court accepts the superior court’s findings of fact unless clearly erroneous but applies a de novo standard of review to the court’s application of the law to those facts as well as to its legal conclusions.

Courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. A court’s duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious. In construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole. We apply the same principles of construction to administrative rules and regulations.

Pursuant to OCGA § 48-5-7.4 (a) (1), a

“bona fide conservation use property” means . . . [n]ot more than 2,000 acres of tangible real property of a single person, the primary purpose of which is any good faith production, including but not limited to subsistence farming or commercial production, from or on the land of agricultural products or timber. . . .

If a property owner obtains the status of a bona fide conservation use property, the result is a substantial reduction of the property tax assessment.

In order to determine whether a property qualifies as a bona fide conservation use property, the legislature has set forth a nonexhaus-tive list of factors that a board or court may consider, including:

(i) The nature of the terrain; (ii) The density of the marketable product on the land; (iii) The past usage of the land; (iv) The economic merchantability of the agricultural product; and (v) The utilization or nonutilization of recognized care, cultivation, harvesting, and like practices applicable to the product involved and any implemented plans thereof[.]

This is the second appearance of this case before this Court. On November 17, 2015, this Court issued an unpublished opinion addressing the trial court’s November 19, 2014 order, which order also determined that Mason was entitled to the renewal of the CUVA. In that opinion, this Court vacated the trial court’s 2014 order, holding that “the trial court erred in applying OCGA § 48-5-7.4 (a) (1) to the extent that [(1) the trial court found that] the Board was not able to consider Mason’s management of the timber on the Property as evidence that he was not engaged in the ‘good faith production’ of timber,” and (2) the trial court determined that “the Property would automatically qualify for a renewal of the CUVA exemption because there was no testimony that the usage of the Property changed between the prior awards of the CUVA exemption to Mason’s property and his 2013 application.” This Court remanded the case to the trial court for further consideration of the case based on the factors set forth in OCGA § 48-5-7.4 (a) (1) (D).

At the hearing prior to the first appeal, Mason testified that he originally applied for and obtained a CUVAin 1993 and reapplied for and was again granted a CUVA in 2003. Mason testified that the majority of the tract was wooded with poplar, and he had harvested the wood approximately 10-12 years ago, earning $14,000. Mason provided a number of pictures showing examples of the density of the poplar trees across most of the property, and he testified that he provided some of those photographs or similar photographs to the Board. Mason testified that about four or five years earlier he started row farming less than one acre of the property, selling the excess produce; he testified that the sales did not really generate a profit. Along with his 2013 CUVA application, Mason attached copies of the Schedule F he had filed with his federal tax returns from 2011 and 2012.

On cross-examination, Mason admitted that he had a rental home on the tract. On an aerial photograph provided by the Board, Mason indicated the rental home’s location, which showed the house was on the tract at issue; he testified that the home had been on the property the entire time he had owned it — approximately 25 years. Mason’s rental income from the house was $600 per month from the current tenant. When asked on cross-examination, Mason admitted that he had no timber or forestry management plan, he was unaware if anyone from the office ever inspected the property, and he was never contacted about an inspection.

Trey Stephens from the tax assessor’s office testified at the hearing that he inspected the property in September 2013, after the Board denied the CUVA and prior to Mason’s appeal of the denial to the Board of Equalization. Stephens stated that another employee did an initial inspection of the property before the May 2013 denial of Mason’s application, but that individual did not appear at the hearing. Stephens also stated that he did not see any photographs appended to Mason’s CUVA renewal application, but he did submit a copy of his Schedule F. Stephens testified that he saw the garden and trees “seemingly incidental or unkept with underbrush and undergrowth.” Stephens testified that it did not appear to him that Mason was cultivating timber because of the “substantial undergrowth” and no “logging road or access road,” but he admitted he was not a certified forester.

On remand, the trial court held a hearing on March 16, 2016, which consisted only of argument between the parties without further introduction of evidence. Thereafter, the court entered an order on April 6, 2016, again finding that the property qualified as a bona fide conservation use property and ordering the Board to apply the CUVA to the property The Board now appeals the April 6 order, arguing specifically that the trial court erred by (1) finding that despite Mason’s lack of management of the timber his efforts qualify as “good faith production of agricultural products or timber”; (2) finding that photographs of standing timber are sufficient to provide proof of a bona fide conservation use; (3) finding that the Board did not conduct a visual inspection of the property prior to denying Mason’s application; and (4) finding that timber production was the primary use of the property.

“The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.”

1. The Board argues that the trial court erred by finding that Mason’s actions constituted “good faith production, including but not limited to, subsistence farming or commercial production, from or on the land of agricultural products or timber,” pursuant to OCGA § 48-5-7.4.

In this case, Mason testified that he previously had harvested poplar trees, and he intentionally left younger trees at that time so that they could mature and be harvested later. There is no statutory requirement that Mason have a specific timber management plan or that he do continuous active management of the poplar stands. Mason provided visual evidence of the type and density of the stands, and the aerial photograph of the tract shows tree coverage over almost all of the nine plus undeveloped acres. Mason also testified that he would have reported earnings from the harvesting to the IRS, and he filed a Schedule F based on his row farming the two years prior to reapplying for the CUYA. While the Board contends that the trial court impermissibly shifted the burden to it, the trial court simply made a credibility determination, accepting Mason’s account of his past harvesting and intent to harvest poplar in the future. These findings were not clearly erroneous based on the record before the court. OCGA § 48-5-7.4 (a) does not require intelligent or profitable timbering to meet the standard of “good faith production”; instead it requires a showing that the individual is using the designated land to produce timber, crops, or other agricultural products, even if the result is at the level of substance farming. And, as noted above, the factors to be considered are nonexhaustive, and the plain language of the statute does not require that each and every item be met in order to qualify. Accordingly, because the trial court’s application of the law was correct and its findings of fact were not clearly erroneous, this enumeration is without merit.

2. The Board also argues that the trial court erred by finding that Mason’s photographs of standing timber were sufficient to provide proof of a bona fide conservation use and that the trial court erred by finding that it did not conduct a visual inspection of the property as required by OCGA § 48-5-7.4 (b) (2) prior to denying Mason’s application.

With regard to tracts of land under ten acres, OCGA § 48-5-7.4 (b) (2) requires that

[t]he owner . . . shall be required by the tax assessor to submit additional relevant records regarding proof of bona fide conservation use for qualified property that on or after May 1, 2012, is either first made subject to a covenant or is subject to a renewal of a previous covenant. If the owner of the subject property provides proof that such owner has filed with the [IRS] a Schedule E, reporting farm related income or loss, or a Schedule F, with Form 1040, or, if applicable, a Form 4835, pertaining to such property, the provisions of this paragraph, requiring additional relevant records regarding proof of bona fide conservation use, shall not apply to such property Prior to a denial of eligibility under this paragraph, the tax assessor shall conduct and provide proof of a visual on-site inspection of the property Reasonable notice shall be provided to the property owner before being allowed a visual, on-site inspection of the property by the tax assessor.

(a) Photographic evidence. Pretermitting whether the trial court erred by making any finding regarding Mason’s presentation of photographs in order to meet the requirement of OCGA § 48-5-7.4 (b) (2), the Board admitted at the hearing that Mason presented an IRS Schedule F with his application, and such evidence of filing this schedule with the IRS in relation to the property specifically excludes application of the additional records portion of OCGA § 48-5-7.4 (b) (2).

(b) Failure to conduct a visual inspection. OCGA § 48-5-7.4 (b) (2) requires that prior to denial of a CUYA application for property under ten acres, “the tax assessor shall conduct and provide proof of a visual on-site inspection of the property[, and reasonable notice shall be provided to the property owner before being allowed a visual, on-site inspection of the property by the tax assessor.”

The record shows that Mason testified that he was not contacted by anyone from the Board to inspect the property prior to the denial of his application, and although Stephens testified that another Board employee made an inspection, no such report by that employee was presented at the hearing, the employee that allegedly conducted the inspection did not testify at the hearing, and there was no testimony from Stephens regarding whether the other employee contacted Mason prior to conducting an inspection or the nature of the employee’s inspection. Accordingly, the trial court did not err by finding that the Board was prohibited from applying OCGA § 48-5-7.4 (b) (2) because it failed to conduct an on-site inspection.

Decided March 7, 2017

Reconsideration denied March 23, 2017

Jarrard & Davis, Christopher J. Hamilton, G. Aaron Meyer, for appellant.

Dyer & Rusbridge, Robert M. Dyer, for appellee.

3. Finally, the Board argues that the trial court erred by finding that timber production was the primary use of the property because of the rental house. But at the hearing, the attorney for the tax assessor’s office did not dispute that the acres immediately around the house are subtracted from the remainder of the tract as per the statute. There is no evidence that Mason rented out any portion of the tract aside from the excluded residential portion; therefore, the trial court did not err by finding that his rental of the residence did not prohibit his qualification for the CUYA.

Judgment affirmed.

Andrews and Ray, JJ., concur.

       The portions of this Code section applicable to this case have not been amended since the time Mason filed his application in 2013.

       (Citations omitted.) Lamad Ministries v. Dougherty County Bd. of Tax Assessors, 268 Ga. App. 798, 801 (1) (602 SE2d 845) (2004).

       See OCGA § 48-5-311 (e) (1) (A) (i).

       See OCGA § 48-5-311 (g) (3).

       See Lamad Ministries, 268 Ga. App. at 806 (3), n. 3.

       (Punctuation omitted.) Terrell County Bd. of Tax Assessors v. Goolsby, 324 Ga. App. 535, 539 (2) (a) (751 SE2d 158) (2013).

       See also Ga. Comp. R. & Regs., r. 560-11-6-.02 (d), (e).

       See Goolsby, 324 Ga. App. at 536.

       OCGA § 48-5-7.4 (a) (1) (D). See also Ga. Comp. R. & Regs., r. 560-11-6-.02 (d) (3).

       Georgia Court of Appeals Rule 33 (b) (“An unreported opinion is neither a physical nor binding precedent but establishes the law of the case as provided by OCGA § 9-11-60 (h).”).

       See Cherokee County Bd. of Tax Assessors v. Mason, 334 Ga. App. XXV (Case No. A15A1086) (Nov. 17, 2015) (unpublished).

       Id. at *8-*ll.

       In 1993, the property consisted of more than ten acres. Although the Board contends otherwise in its brief, when Mason filed for a CUVA in 2003, the property was listed as being under ten acres. Mason notified the Board of an ownership change in 2010, and the previously applied CUVA remained in effect.

       Mason did not provide supporting documentation for this sale, but he testified that he provided his accountant at the time with the documents and believed he had reported the income to the IRS.

       (Citation and punctuation omitted.) Simmons v. Bd. of Tax Assessors of Effingham County, 268 Ga. App. 411 (1) (602 SE2d 213) (2004).

       Obviously, his current Schedule F would not contain income from timber because he did not sell timber that year.

       See Lamad Ministries, 268 Ga. App. at 806 (3), n. 3.

       Cf. Goolsby, 324 Ga. App. at 539 (2) (a).

       See OCGA § 48-5-7.4 (a) (1) (B) (“Such property excludes the entire value of any residence and its underlying property” equal to “the minimum lot size required for residential construction by local zoning ordinances or two acres, whichever is less.”).

       Cf. Goolsby, 324 Ga. App. at 538-539 (2) (a).


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A17A0194.
    RIGGINS v. CITY OF ATLANTA et al.
    (798 SE2d 730)
   Ellington, Presiding Judge.

Terry Riggins appeals from the order of the Superior Court of Fulton County that dismissed her complaint alleging that the City of Atlanta and named City employees acting in their official capacities violated the Georgia Whistleblower Act (“GWA”), OCGA § 45-1-4, when they allegedly had her employment terminated for complaining about irregularities in the City’s water system. The City argued, and the superior court found, that Riggins’ suit was barred because she failed to comply with the statutory requirement that a plaintiff provide ante litem notice before asserting certain claims against a municipality pursuant to OCGA § 36-33-5. Riggins appeals, contending that the municipal ante litem notice requirement does not apply to claims brought pursuant to the GWA. For the following reasons, we agree.

Decided March 23, 2017.

The Holloway Firm, Samantha A. Holloway; Harry M. Daniels, Jr., for appellant.

Nelson Mullins Riley & Scarborough, Anita W. Thomas, Dennis A. Horn; R. Roger Bhandari, for appellees.

After this appeal was docketed in this Court and briefed, the Supreme Court of Georgia addressed this issue in response to a certified question from the United States District Court for the Middle District of Georgia, and it held “that the pre-suit notice requirement contained in the municipal ante litem notice statute does not apply to a whistleblower claim brought pursuant to the GWA.” West v. City of Albany, 300 Ga. 743 (797 SE2d 809) (2017). Given this recent precedent, we must conclude that Riggins was not required to provide the City with ante litem notice of her GWA claim. Consequently, the superior court’s order must be reversed.

Judgment reversed.

Andrews and Rickman, JJ., concur.


author: McFADDEN, Presiding Judge.

text:
    A16A1552.
    PATEL v. KENSINGTON COMMUNITY ASSOCIATION, INC.
    (797 SE2d 235)
   McFADDEN, Presiding Judge.

This case involves the trial court’s grant of summary judgment to Kensington Community Association, Inc. (“the Association”) in its action against pro se litigant Roshni V. Patel for unpaid homeowners’ association fees. On appeal, Patel challenges the grant of summary judgment, but we find that grant was proper. Patel also challenges the trial court’s denial of two post-judgment motions, but we find that, because the trial court ruled after the notice of appeal had been filed, she lacked jurisdiction. Accordingly, we affirm the grant of summary judgment and vacate the orders on the post-judgment motions.

1. Summary judgment.

Patel argues that the trial court erred in her order granting summary judgment to the Association. As an initial matter, we consider our jurisdiction to review this ruling. The Association argues that we lack jurisdiction because Patel’s notice of appeal from the order contained language suggesting that she did not actually intend it to be a notice of appeal. We find, however, that the notice of appeal was sufficient to confer jurisdiction upon this court. OCGA § 5-6-37.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Ray Mashburn Homes, LLC v. Charterbank, 339 Ga. App. 490, 491 (793 SE2d 655) (2016).

Where, as here, “the movant is the plaintiff, [it] has the burden of presenting evidence to support [its] claim and the burden of piercing the defendant’s affirmative defenses.” State of Ga. v. Rozier, 288 Ga. 767, 768 (707 SE2d 100) (2011) (citations omitted). The Association made a prima facie showing that it met this burden. It presented evidence that from January 21, 2011, until January 7, 2014, Patel was a record title owner of the property that was the subject of the Association’s complaint. That property was subject to the Association’s recorded Declaration of Protective Covenants (“the Declaration”), which pertinently provided:

Each Owner of any Lot, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees to pay to the Association [various specified assessments and charges], including, but not limited to, reasonable fines as may be imposed in accordance with the terms of th[e] Declaration[,] late charges, interest, . . . and reasonable attorney’s fees actually incurred[.]

The Declaration defined an “Owner” to be the “record owner ... of the fee simple title to any Lot located within the Community [governed by the Declaration].” Patel failed to pay assessments and other charges on the property as required by the Declaration. The Association provided evidence of the amounts owed on the property under the Declaration, including attorney fees incurred in the action.

Once the Association made a prima facie showing that it was entitled to judgment as a matter of law, the burden shifted to Patel, who was then required to “present competent evidence establishing a possible defense.” Sawnee Forest v. CRE Venture 2011-1, 339 Ga. App. 339, 341 (2) (793 SE2d 542) (2016) (citation, punctuation and emphasis omitted). Patel failed to do so.

Patel argued that she did not own the property referred to in the complaint and presented evidence that she had conveyed it to another per son in a quitclaim deed that was executed on J uly 18,2011, but not recorded until June 26, 2014, after the Association had filed its motion for summary judgment. This evidence, however, did not create a genuine issue of material fact because Patel’s execution of the quitclaim deed alone did not alleviate her of her obligations under the terms of the Declaration; the Declaration imposed those obligations upon the property’s “record owner,” and until that quitclaim deed was recorded, Patel remained a record owner of the property. See Lionheart Legend v. Norwest Bank Minnesota Nat. Assn., 253 Ga. App. 663, 664 (560 SE2d 120) (2002) (grantor of unrecorded quitclaim deed “remained the record owner of the property”).

Seeking to benefit from a scrivener’s error, Patel also submitted evidence that she did not own property at a different, street address; the Association had used that different, address to refer to the property in its summary judgment brief, and the attorney who had researched the title to the property had used that different address in his affidavit. However, the attorney’s title report, attached to that affidavit and referenced therein, identified the property by the correct street address. This evidence likewise did not create a genuine issue of material fact, because it did not dispute that Patel did own the property that was the subject of the Association’s complaint and, therefore, the subject of the summary judgment on that complaint.

In connection with her post-judgment motions, Patel presented additional evidence that she had never accepted a deed for the property and that, after the summary judgment ruling in this case, a court in a different case ruled that the deed conveying the property to Patel was “invalid, [vjoid and cancelled.” We cannot consider this evidence in our review of the trial court’s summary judgment ruling because this evidence was not before the trial court when the court ruled. See Fennelly v. Lyons, 333 Ga. App. 96, 99, n. 4 (775 SE2d 587) (2015); Atkinson v. City of Atlanta, 325 Ga. App. 70, 72, n. 3 (752 SE2d 130) (2013). We take no position on whether Patel’s additional evidence would or would not have created a genuine issue of material fact that would have precluded summary judgment had she presented it to the trial court before that court ruled on the motion.

Patel argues that the reason she did not present more evidence in opposition to summary judgment was because the Association referred to the property by the wrong street address in its summary judgment brief. But “[i]t is the duty of each party at the hearing on the motion for summary judgment to present his [or her] case in full.” Black v. Floyd, 280 Ga. 525, 526 (1) (630 SE2d 382) (2006) (citations and punctuation omitted). If Patel had evidence that created a genuine issue of material fact and precluded summary judgment on the claim asserted in the Association’s complaint (which referred to the property by the correct street address), she should have presented that evidence in opposition to the motion for summary judgment, before the trial court ruled on the motion.

Decided February 23, 2017

Reconsideration denied March 24, 2017.

Roshni V. Patel, pro se.

Pankey & Horlock, Laura C. Horlock, E. Berk Sauls, for appellee.

2. Post-judgment motions.

Patel argues that the trial court erred in denying her post-judgment motions, in which she had asked the trial court to reconsider or set aside the judgment in favor of the Association. The trial court, however, lacked jurisdiction to rule on the motions because, when the trial court ruled, Patel already had filed her notice of appeal from the summary judgment. See Gomez v. Innocent, 323 Ga. App. 1, 4 (3) (746 SE2d 645) (2013) (“Anotice of appeal divests the trial court of jurisdiction to supplement, amend, or modify the judgment while the appeal of that judgment is pending.”) (citation omitted). We therefore vacate those rulings. See id.

Judgment affirmed in part and vacated in part.

Miller, P. J., and McMillian, J., concur.


text:
    A16A1788.
    NORTH BAY AVALON, LLLP v. SPEEDWAY, LLC et al.
    (797 SE2d 610)
   McFADDEN, Presiding Judge.

This case involves the enforceability of restrictive covenants in a deed. The trial court ruled that the restrictive covenants run with the land and bind appellant North Bay Avalon, LLLP as successor in title to the original grantee, and that the benefits of the restrictive covenants are held in gross, so that they are enforceable by appellee Speedway, LLC, the grantor, even though Speedway no longer owns an interest in the property or nearby property. We conclude that the covenants are enforceable in equity, regardless of whether or not the burdens and benefits of the covenants run with the land or are held in gross. We reject North Bay’s argument that the covenants are unconstitutional restraints of trade. So we affirm the trial court.

1. Facts.

The facts are largely undisputed. In May 2002, Speedway Super-America, LLC (Speedway, LLC’s predecessor) sold land at the intersection of Bouldercrest Road and Interstate 285 to one of North Bay’s predecessors in title. The deed, which was recorded in the DeKalb County property records, contains two restrictive covenants limiting use of the land for a gas station:

By acceptance hereof, Grantee agrees that for a period of twenty-five (25) years from and after the date of this conveyance, the premises shall not be used as a Truck Stop for the sale, marketing, storage or advertising of truck diesel and the premises shall also be restricted from the sale of any petroleum fuels other than Marathon, Texaco, Mobil, BP or Shell brand fuels for a period of fifteen (15) years from and after the date of this conveyance, and that this restriction shall be a covenant running with the land and shall be contained in and made a part of every deed, mortgage, lease or other instrument affecting title to said premises.

North Bay purchased the property in 2013. It was aware of the restrictive covenants when it purchased the property Two months later, North Bay filed this quiet title action to remove the restrictive covenants in its chain of title.

2. Enforceability.

North Bay argues that the covenants are unenforceable because Speedway no longer owns an interest in the property or an adjacent property, and no Georgia court ever has enforced a covenant where the benefits are held “ ‘in gross,’ i.e., as a personal right and not running with the land on the benefit side.” Barton v. Gammell, 143 Ga. App. 291, 293 (2) (b) (238 SE2d 445) (1977) (citation omitted). We find that regardless of whether the covenants or their benefits run with the land or are held in gross, the covenants are enforceable in equity.

Our Supreme Court has held that

[cjovenants relating to land, or its mode of use or enjoyment, are enforceable against subsequent grantees with notice, whether named in the instrument or not, and though there is no privity of estate. It is immaterial in such cases whether the covenant runs with the land or not, the general rule being that it will be enforced according to the intention of the parties. It is only necessary that the covenant concern the land or its use, and that the subsequent grantee has notice of it. Covenants are so enforced on the principle of preventing a party having knowledge of the just rights of another from defeating such rights. Whether the . .. covenant run[s] with the land or [is] an equitable servitude, it is clear that a restrictive covenant... is an enforceable covenant against a purchaser with notice.

Timberstone Homeowner’s Assn. v. Summerlin, 266 Ga. 322, 323 (467 SE2d 330) (1996) (citations omitted; emphasis supplied). See also OCGA § 23-1-16 (“He who takes with notice of an equity takes subject to that equity.”). Here, the covenants concern the use of the land, and it is undisputed that North Bay had notice of them when it purchased the property. Consequently, the trial court correctly ruled that the covenants are enforceable.

3. Standing.

North Bay argues that Speedway’s lack of interest in the property or an adjacent property, as well as its lack of any legitimate interest in the covenants’ enforcement, defeats standing. We disagree.

The person entitled to the benefit of a covenant has standing to enforce it. See generally Jones v. Gaddy, 259 Ga. 356, 357 (380 SE2d 706) (1989); Barton v. Atkinson, 228 Ga. 733, 743 (2) (187 SE2d 835) (1972). Thus as long as Speedway was intended to benefit from the covenants, it has standing to enforce them, even if it retained no interest in the burdened property nor an adjacent property. Barton, 228 Ga. at 743 (2). And the circumstances make clear that the covenants were intended to benefit Speedway by imposing certain limits on competition. “Though no language of the promise may suggest an intention that the benefit of the promise shall run, the advantage from its running may be so obvious that it is proper to infer that the parties intended it to do so.” Jones, 259 Ga. at 358 (citation omitted).

Further, to hold that the covenants are not enforceable because Speedway retained no interest in the burdened or nearby property would mean that the covenants were void from their inception; Speedway conveyed its entire parcel via the deed that contained the covenants, so from the beginning of the covenants’ duration, Speedway no longer possessed an interest in the property Speedway as grantor and the original grantee could not have intended the covenants to be void ab initio, and “covenants are to be construed so as to carry into effect the intention of the parties. . . Smith v. Gulf Refining Co., 162 Ga. 191, 194 (134 SE 446) (1926) (citation and punctuation omitted).

In addition, the trial court expressly found as fact that Speedway has an interest in enforcing the covenants. He held that the covenants “provide a legitimate competitive advantage to Speedway by preserving an attractive opportunity for Speedway to reenter the Georgia market.” The court held that the original reason Speedway entered the covenants — to prevent the property from being developed and used as a competitive truck stop or gas station — persists. Nothing in the record contradicts these factual findings.

Decided March 9, 2017

Reconsideration denied March 24, 2017

Davis, Matthews & Quigley, Ron L. Quigley, Matthew R. Thiry, John A. Sugg, for appellant.

Morris, Manning & Martin, Simon R.Malko, Stephen M. Vaughn, Hillary R. Kinsey, Pelham Wilder IV, for appellees.

Because Speedway and the initial grantee intended Speedway to benefit from the covenants, the trial court did not err in ruling that Speedway has standing to enforce them.

4. Unconstitutional restraint of trade.

North Bay argues that the restrictive covenants are not enforceable because they are unconstitutional, illegal restraints of trade. We disagree.

In its order transferring this appeal to our court, our Supreme Court held that “any issue as to whether the prohibition found in Ga. Const. Art. Ill, Sec. VI, Para. V[, which concerns restraints of trade,] applies to restrictive covenants on the use of land is well settled,” citing Godley Park Homeowners Assn. v. Bowen, 286 Ga. App. 21, 23 (649 SE2d 308) (2007). In that case, we held that the constitutional provision and OCGA § 13-8-2 (a) (2), which renders contracts in general restraint of trade unenforceable as against public policy, do not apply to restrictive covenants on the use of real property Godley Park, 286 Ga. App. at 23 (c). We observed that, “[i]n Georgia, it is clear that two parties may contract away or extend their rights as they please regarding the use of real property so long as public policy is not violated.” Id. (citation omitted). For these reasons, we do not find that the trial court erred by holding that the covenants at issue were not unenforceable restraints of trade.

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


text:
    A16A2089.
    LAWTON v. THE STATE.
    (798 SE2d 264)
   McFADDEN, Presiding Judge.

After trial, a jury convicted George Henry Lawton of one count of rape, four counts of aggravated sodomy, four counts of aggravated child molestation, and two counts of child molestation. The trial court merged the aggravated child molestation counts into the aggravated sodomy counts and sentenced Lawton to life plus 20 years to be served in confinement.

Lawton appeals, arguing that the evidence does not support the convictions, but we find that there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that Lawton was guilty. Lawton argues that trial counsel was ineffective for failing to call an expert witness to challenge the state’s experts, but we find that Lawton has not shown that counsel’s decision was unreasonable. Lawton argues that the state improperly commented on his pre-arrest failure to come forward, but we find that the comments were not improper. So we affirm Lawton’s convictions.

1. Sufficiency of the evidence.

“On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the verdict.” Coleman v. State, 284 Ga. App. 811, 812 (1) (644 SE2d 910) (2007) (citation omitted). So viewed, the evidence showed that the victims were M. M., who was ten years old at the time of trial, and M. B., who was eight years old at the time of trial. Lawton, their mother’s boyfriend, lived with them when the abuse happened. M. M. testified that the abuse began when she was eight years old, it happened “lots of times,” and it happened in different locations. She testified that Lawton would have her touch his penis with her hand, that he touched her vagina and buttocks with his penis, and that he ejaculated. She testified that it hurt her vagina. M. M.’s grandmother testified about M. M.’s outcry, in which M. M. described the abuse in some detail. The state played for the jury a video recorded interview of M. M., in which M. M. described the sexual abuse and described witnessing Lawton’s abuse of M. B., including his “lick[ing] her behind and private parts.”

Lawton was indicted for one count of rape of M. M., three counts of aggravated sodomy of M. M., one count of aggravated sodomy of M. B., three counts of aggravated child molestation of M. M., one count of aggravated child molestation of M. B., one count of child molestation of M. M., and one count of child molestation of M. B.

Lawton argues that the evidence was insufficient to sustain his convictions for conduct involving M. B. because M. B. testified that nothing occurred. In fact, M. B., who was five years old at the time of the abuse, was a reluctant witness, who testified that she did not remember anything, good or bad, that happened with Lawton when she was five years old. And as detailed above, M. M. described the abuse of M. B. that she witnessed.

Lawton argues that the evidence was insufficient to support his convictions for conduct involving M. M. because M. M. testified that the only touching that occurred was Lawton “kissing on her.” On the contrary, as detailed above, M. M. described Lawton’s abuse. In sum, the evidence as presented above was sufficient to authorize the jury to find Lawton guilty beyond a reasonable doubt of the crimes with which he was charged. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Assistance of counsel.

Lawton argues that trial counsel was ineffective for failing to call an expert witness to rebut the testimony of the state’s expert witnesses. To prevail on his claim of ineffective assistance of counsel, Lawton

must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different, had it not been for counsel’s deficient performance. If [Lawton] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citations and punctuation omitted).

Lawton argues that trial counsel should have called an expert witness to evaluate the video recorded interviews of the victims and to address the state’s experts’ conclusions. Trial counsel’s decision not to call an expert was not ineffective. It is well established

that the decision as to which defense witnesses to call is a matter of trial strategy and tactics. And tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.

Perdue v. State, 298 Ga. 841, 845 (3) (785 SE2d 291) (2016) (citation and punctuation omitted).

At the motion for new trial hearing, trial counsel testified that to determine whether he needed to hire an expert witness, he reviewed the video recordings and he had another lawyer review them independently to get another opinion. After reviewing the recordings, he and the other attorney determined that an expert was unnecessary Counsel based his conclusion on his experience of trying these kinds of cases, his attendance at seminars on this topic, and his experience of having listened to such experts testify in other cases.

Counsel explained that he thought the interview of M. M. was well done. He thought there was no point in attacking the interview of M. B. because she did not disclose anything substantive in her interview. He intended to attack the interviews through cross-examination.

Lawton has not shown that trial counsel’s decision not to call an expert was an unreasonable decision that no competent attorney would have made under similar circumstances. Perdue, 298 Ga. at 845 (3). See also Gawlak v. State, 310 Ga. App. 757, 759 (2) (a) (714 SE2d 354) (2011) (“trial counsel’s decision to forego presentation of counter expert testimony and to rely instead on cross-examination to address the interviewing techniques of the state’s witnesses” was reasonable strategic decision); Towry v. State, 304 Ga. App. 139, 147 (2) (f) (695 SE2d 683) (2010) (trial counsel’s decision, based on his own experience with such cases and his review of videotaped interview, to forego presentation of an expert in child interviewing techniques was reasonable strategic decision).

3. Failure to come forward.

Lawton argues that the trial court erred by allowing the state to present evidence of his failure to come forward to the police. He argues that the evidence violated the rule set out in Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991), overruled on other grounds by Chapel v. State, 270 Ga. 151, 154-156 (4) (510 SE2d 802) (1998), see Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999), that the state may not comment upon a defendant’s silence or failure to come forward. We find that the evidence does not fall within the Mallory rule.

The officer who investigated the case testified that she obtained Lawton’s telephone number from the victims’ mother and that she called the number and the man who answered verified that he was Lawton. The officer testified that she told Lawton that his name had come up in an investigation and that she asked him to come in to speak with her. The officer testified that Lawton asked her if the matter involved sexual assault. She testified that she responded to Lawton that she did not discuss cases over the phone, but that she would be willing to speak with him if he would like to come in and that he agreed to meet with her on April 12, 2012. The officer testified that on April 11, the victims’ mother called the officer and related that Lawton had called her, telling her that the officer had told Lawton to call the mother to ask about the investigation. The officer testified that this was not true and that she called Lawton, explaining that the investigation had to do with the mistreatment of the mother’s children. The officer testified that Lawton said he would still make the appointment the next day.

The officer testified that Lawton did not show up for the April 12 appointment, and that when she called him, he said that he was at work and would call her later. The officer testified that Lawton did not call, so the next day, the officer called him again. The officer testified that Lawton agreed to meet her on April 16, but that he did not show up for that meeting. The officer testified that she obtained an arrest warrant, and Lawton was arrested in Florida four days later.

In Mallory, 261 Ga. at 625, our Supreme Court held that although former OCGA § 24-3-36 provided that

“[acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission[,]” ... in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative ... [and] such a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.

Mallory, 261 Ga. at 630 (5). Assuming the continued viability of Mallory, but see Hernandez v. State, 299 Ga. 796, 801 (4), n. 3 (792 SE2d 373) (2016) (noting the Supreme Court has “repeatedly reserved decision on the continuing validity of Mallory” in light of the repeal of OCGA § 24-3-36 by the adoption of our new Evidence Code), we conclude that the statements here do not fall within its rule. Lawton actually spoke with the officer and agreed to meet with her. In spite of his agreement, he failed to appear at the meetings. The officer’s testimony was limited to noting the inconsistencies between Law-ton’s statements and his behavior. This does not violate Mallory. See State v. Sims, 296 Ga. 465, 469 (2) (a) (769 SE2d 62) (2015) (explaining the “bright line rule” of Mallory is not violated where the comments are “limited to noting inconsistencies in [the defendant’s] pretrial statements to authorities”). Further, evidence of Lawton’s flight to Florida was admissible. Waters v. State, 303 Ga. App. 187, 191 (3) (692 SE2d 802) (2010).

For these reasons, Lawton has not shown reversible error.

Judgment affirmed.

Miller, P. J., concurs. McMillian, J., concurs in Divisions 1 and 2 and in judgment only in Division 3.

Decided March 9, 2017

Reconsideration denied March 24, 2017.

Vernon H. Smith, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.


author: Andrews, Judge.

text:
    A17A0182.
    DIAZ v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (798 SE2d 731)
   Andrews, Judge.

Dinora Diaz slipped and fell while walking across a parking deck owned by the Metropolitan Atlanta Rapid Transit Authority (MARTA). Diaz sued MARTA, claiming that injuries she suffered as a result of the slip and fall were proximately caused by MARTA’s negligent failure to discharge the duty imposed under OCGA § 51-3-1 to exercise ordinary care to keep the parking deck safe for her as an invited customer. Diaz appeals from the trial court’s order granting summary judgment in favor of MARTA. For the following reasons, we affirm.

While walking across the ground floor of the MARTA parking deck to catch a train, Diaz slipped and fell in water on the floor. It had been raining the day prior to the fall, and it was raining when she fell. Photographs of the area where Diaz fell showed a pedestrian walkway across the concrete floor located on the covered first floor of the parking deck a few feet from the side of the deck, which was open to the elements. According to Diaz, this was the path she and other pedestrians took when entering from outside the parking deck. Diaz testified at her deposition that the entire floor of the parking deck was wet and that the place where she slipped was “puddled” or “more wet” than other areas of the floor. Diaz could not see the water she slipped in, but she saw that the place where she slipped appeared to be darker than other spots. According to Diaz, “[tjhat part it looks like the weather was [sic] been there for days or I don’t know because there was, like, dark — darker spot.” Diaz was unable to say that the water she slipped in was of any particular depth, just that it was enough to get her clothes wet. After her deposition, Diaz filed an affidavit stating that “[t]he water on the ground appeared to have stained as if it had been there for a long time,” and that “[t]he concrete around the water appeared as if it had stained due to puddling in that area over a period of months or even years.” MARTA’s chief engineer testified that he inspected the area where Diaz fell and confirmed that the concrete appeared to be discolored. But he said the discoloration could not have been caused by standing water because the floor was designed and constructed with a slope that drained water and prevented puddling, and there had been no puddling problems in the parking deck since it was constructed. The engineer conceded that, when it is raining, rainwater can get on the pedestrian walkway adjacent to the open side of the deck, but he said the sloped floor design prevented any puddling of the rainwater. On cross-examination by Diaz, the engineer testified that there was no basis for any claim that water had somehow accumulated on the floor of the parking deck by wicking up from underneath the deck through the concrete floor. The senior liability adjuster for MARTA testified that there had been no other slip and fall incidents at the parking deck.

Having invited Diaz to enter its parking deck premises for a lawful purpose, MARTA was liable in damages to Diaz “for injuries caused by [its] failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

While not an insurer of the invitee’s safety, the owner/occupier is required [under OCGA § 51-3-1] to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. Lau’s Corp. v. Haskins, 261 Ga. 491 (1) (405 SE2d 474) (1991).

Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

To prevail on a motion for summary judgment [under OCGA § 9-11-56], the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. The moving party may carry this burden either by (1) presenting evidence negating an essential element of the nonmoving party’s claim, i.e., affirmatively disproving the element with evidence which makes it impossible for the nonmoving party to prove the element at trial; or (2) demonstrating an absence of evidence to support an essential element of the nonmoving party’s claim. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. On appeal, we review de novo the trial court’s ruling on a motion for summary judgment, construing all facts and reasonable inferences therefrom in the light most favorable to the nonmovant.

Parks v. Multimedia Technologies, 239 Ga. App. 282, 286-287 (2) (520 SE2d 517) (1999) (citations, punctuation and emphasis omitted); Lau’s Corp., 261 Ga. App. at 491.

Applying these principles, we conclude that MARTA was entitled to summary judgment on Diaz’s premises liability claim under OCGA § 51-3-1 because the record shows as a matter of law that the water on the parking deck floor that caused the slip and fall was not a hazardous condition on the premises which created an unreasonable risk of harm. The facts showed that it was raining on the day prior to the slip and fall and at the time of the slip and fall and that Diaz knew about the rain and knew the entire parking deck ground floor was wet with water, including the pedestrian walkway area where she slipped in water and fell. This area ran directly adjacent to the open side of the deck, and, as Diaz acknowledged, was on a path taken by her and by other pedestrians entering from outside the parking deck. The facts support the conclusion that Diaz slipped and fell in rainwater on the floor of the parking deck in a location where she should have reasonably expected to find rainwater present.

While [Diaz] was exposed to some risk of harm by reason of the water accumulation on the floor, it was neither unusual nor unreasonable. Rather, it was one to which all who may go out on a rainy day may be exposed and which all may expect or anticipate. ... [A premises owner] should not be held [liable] if an injury results from an ordinary or usual risk which, in the light of the weather conditions, could not be classed as unreasonable. To do so would make him an insurer of the safety of his invitee, and that is not and should not be the law in this State.

Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 177-178 (2) (138 SE2d 77) (1964); Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (332 SE2d 304) (1985). It is common knowledge that, when it is raining, an area like the pedestrian walkway where Diaz slipped and fell — an area adjacent to an open side of the parking deck and used by pedestrians entering from outside the deck—will be wet with rainwater falling or blowing onto the floor or tracked onto the floor by rain-wet pedestrians, and that a rain-wet floor is a slip and fall hazard. Gibson, 110 Ga. App. at 172-174. “It is not the duty of persons in control of such [premises] to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas. . . Id. at 174, 176-177 (2).

Decided March 24, 2017.

Morgan & Morgan, Matthew L. Hilt, for appellant.

Although Diaz testified that the pedestrian walkway where she slipped and fell appeared to be more wet than other areas of the parking deck, she could not identify any particular depth of the water she stepped in, and she produced no evidence that the accumulation of rainwater in that area was unusual, abnormal, or unexpected given the location of the walkway and the weather conditions. MARTA produced evidence that no unusual puddling or accumulation of water occurred in the parking deck, which was designed and constructed with a slope to promote drainage and prevent such puddling. The record showed that no slip and fall of any kind had occurred in the parking deck prior to Diaz’s slip and fall. The affidavit that Diaz filed after her deposition, stating that the stained spot on the concrete floor showed she slipped and fell in water puddled for a period of months or years, was unsupported speculation and was refuted by the testimony from the MARTA engineer. Uninformed “speculation which raise[s] merely a conjecture or possibility [is] not sufficient to create even an inference of fact for consideration on summary judgment.” Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996). There was no evidence to support Diaz’s suggestion that she slipped in water which had wicked up through the concrete floor and posed a hazard, creating an unreasonable risk of harm.

To impose liability on a slip and fall claim under OCGA § 51-3-1, the threshold requirement is proof of a hazard on the premises which created an unreasonable risk of harm — in the absence of such proof, the claim fails at the threshold. Drew v. Istar Financial, 291 Ga. App. 323, 325 (1) (661 SE2d 686) (2008); Robinson, 268 Ga. at 740 (1); Law’s Corp., 261 Ga. at 492. Because there was no evidence that the rainwater hazard on the MARTA premises created an unreasonable risk of harm, MARTA was entitled to summary judgment.

Judgment affirmed.

Ellington, R J., concurs. Rickman, J., concurs in judgment only.


text:
    A16A1812.
    ONE BUCKHEAD LOOP CONDOMINIUM ASSOCIATION, INC. v. REGENT TOWER HOLDINGS, LLC.
    (798 SE2d 633)
   Ellington, Presiding Judge.

In a complaint filed in 2015, One Buckhead Loop Condominium Association, Inc. (the “Association”), sued Regent Tower Holdings, LLC f/k/a Regent Tower Holdings, Inc. (“Regent”), for breach of contract, among other claims, contending that Regent breached the terms of an easement agreement in which Regent had granted the Association, subject to certain limitations, a perpetual non-exclusive right to access Regent’s private road system. The trial court subsequently granted Regent’s motion for summary judgment on all of the Association’s claims. On appeal, the Association contends that the trial court erred in finding that it was estopped from asserting that Regent breached the easement agreement on the ground that, in 2006, it had executed an estoppel certificate certifying that there were no defaults thereunder. We reverse for the reasons set forth below.

Under OCGA § 9-11-56 (c),

[sjummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Citations and punctuation omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475, 475-476 (759 SE2d 557) (2014).

So viewed, the evidence shows that, in 1995, Regent and Buck-head Station, LLC, entered into an “Easement Agreement for Access and Utilities” (the “Easement”). Thereunder, among other things, Regent granted, for the benefit of Buckhead Station, a perpetual non-exclusive easement for passenger vehicle and pedestrian egress, ingress, and access over and through a private roadway system constructed on Regent’s property Regent acknowledges that the Association is a successor-in-interest to Buckhead Station and has a right to enforce the Easement.

The Easement contemplates that Regent may close its roadway system, which is located in the Buckhead area of Atlanta, during rush hour. In that respect, the Easement affords Regent the exclusive right to determine the location and the control mechanisms used to restrict or prohibit vehicular traffic. The Easement further provides, however, that, “[t]o the extent any vehicular traffic is allowed through such control points, [the Association] shall have the same vehicular access through such control point.”

From the time the road system was constructed in 1996, Regent has closed the roadway system during rush hour. In 2003, Regent entered into an agreement with Buckhead Community Improvement District (“BCID”) to allow the District’s shuttle bus (the “BUC”) to travel over its roadway system. Beginning in 2004, Regent installed traffic control gates that are lowered during rush hour. The BUC is allowed to open the traffic gate through the use of a remote electronic device. Security guards employed on properties contiguous to the roadway system also have the ability to raise the traffic gate through a remote electronic device.

In 2006, in connection with a development project in which Regent was involved, the Association executed the Estoppel Certificate at issue. Therein, the Association acknowledged, among other things, that “to the best actual knowledge of the principal officers of the [Association], no default, or event with the passage of time or the giving of notice, or both, [that] would constitute a default on the part of [Regent]” had occurred under the Easement. The Estoppel Certificate affirmed that Regent “may rely upon the statements set forth herein.” The Easement also provides that “[a]ny ... entity requesting an . . . Estoppel Certificate . . . concerning this Agreement shall be entitled to rely on... an Estoppel Certificate” from a party authorized to represent the Association.

In 2015, the Association sued Regent for breach of contract, among other claims, alleging that Regent had violated the Easement by selectively allowing vehicular access through the traffic control gate during closure of the roadway system, including the BUC and private security vehicles, to the exclusion of the Association. The Association also sought, among other claims, injunctive and declaratory relief. Regent moved for summary judgment on all claims. The trial court granted summary judgment to Regent, finding that the Association is estopped from contending that Regent breached the Easement by permitting the BUC and the security guards to travel over the roadway system without permitting the Association to engage in the same known conduct.

1. The Association contends that the trial court erred in finding that Regent was entitled to judgment as a matter of law. More specifically, the Association argues that a jury should decide whether Regent reasonably relied on the Estoppel Certificate. The Association also argues that any estoppel arising from the Estoppel Certificate did not extend to the alleged breaches of the Easement arising after the date of that certificate.

(a) The law in Georgia “recognizes, on grounds of public policy and good faith, that the execution of an estoppel certificate can create an estoppel effect against future claims for damages.” (Citations and punctuation omitted.) Fundus America (Atlanta) L.P. v. RHOC Consolidation, 313 Ga. App. 118, 121 (1) (a) (720 SE2d 176) (2011). In other words, “a party who executes an estoppel certificate should not be allowed to raise claims of which it knew or should have known at the time the certificate was executed.” (Citation and punctuation omitted.) Id. at 122 (1) (b).

By executing an estoppel certificate, “a party can agree to be estopped under circumstances that might not otherwise constitute an estoppel under common law.” Fundus America (Atlanta) L.P. v. RHOC Consolidation, 313 Ga. App. at 121 (1) (a) (rejecting argument that party claiming benefit of estoppel certificate was required to prove elements of equitable estoppel, including proof of some concealment or false representation, in order to prevail on summary judgment). Nevertheless, a party asserting the benefit of an estoppel certificate must show that it reasonably relied thereon. See Office Depot v. The District at Howell Mill, 309 Ga. App. 525, 527-529 (1) (710 SE2d 685) (2011) (finding, in affirming grant of summary judgment to landlord on tenant’s claim that the landlord had violated the lease, that there remained no issue of material fact as to the landlord’s reasonable reliance on the tenant’s certificate that landlord was notin default under the lease); Bibb County v. Ga. Power Co., 241 Ga. App. 131, 137 (4) (525 SE2d 136) (1999) (“estoppel requires justifiable reliance on the opposing party’s representations or conduct and a change in position to one’s detriment”) (citation and punctuation omitted).

The Estoppel Certificate stated that the Association had been advised that Regent was transferring a tract of real estate to another party, 3344 Peachtree, LLC, which was constructing thereon a mixed-use project consisting of approximately 471,000 rentable square feet of office space, 20,000 square feet of retail space, 100 residential condominium units, and associated parking spaces. The Estoppel Certificate further provided that 3344 Peachtree was obtaining financing for the project from a lender, and that Regent, 3344 Peachtree, and the lender “require from [the Association] an estoppel relating to the” Easement. A representative of Regent testified that, in reliance on the Estoppel Certificate, Regent conveyed property to 3344 Peachtree, which, in turn, borrowed money to finance the project. The Association suggests that, if it had refused to provide the Estoppel Certificate, Regent could have terminated the BU C’s license to access its road system and proceeded with the transaction. But whatever might have happened, the record shows only that the Association did give the Estoppel Certificate and that Regent relied thereon in conveying its property to 3344 Peachtree.

The Association argues that, even if Regent relied on the Estop-pel Certificate, its reliance was not reasonable or justified because it knew that it was in violation of the Easement in refusing the Association access through the traffic control gate while allowing thirdparties unfettered access. In light of the principle that “[h]e who would have equity must do equity,” the Association argues, Regent cannot use an estoppel certificate as a “trap” to engage in activities it knows are in breach of the Easement. Here, as of the date of the Estoppel Certificate, both parties were in a position to assess whether Regent was in breach of the Easement by allowing third parties through the traffic control gate at rush hour. Generally, “an estoppel cannot result where both parties have equal knowledge or equal means of knowing the truth.” (Citation and punctuation omitted.) Fundus America (Atlanta) L.P. v. RHOC Consolidation, 313 Ga. App. at 122 (1) (b). But, as we have previously found, the parties may also “contract around this rule of law,” and they may do so, in the context of an estoppel certificate, by agreeing that a party shall have the right to rely on representations set forth in the certificate. (Punctuation omitted.) Id. Because the Association agreed in the Estoppel Certificate that Regent “may rely upon the statements set forth herein,” Regent could reasonably do so, notwithstanding that it was aware that the BUC and security guards had access through the gate at rush hour. Further, there is no evidence of any inequitable conduct on the part of Regent, which has consistently denied that the BU C’s passage through the gate during rush hour constitutes a default under the Easement, in an attempt to “trap” or deceive the Association through the Estoppel Certificate. Therefore, the Association does not show that there remains an issue of material fact as to Regent’s reasonable reliance on the Estoppel Certificate in its conveyance of its real property to 3344 Peachtree.

(b) The Association argues that, notwithstanding Regent’s reasonable reliance thereon, the Estoppel Certificate does not bar claims arising after its execution. Specifically, the Association contends that the expansion of the BUC, which increased the frequency of passage through the traffic gate, gave rise to a breach of the Easement outside the scope of the Estoppel Certificate.

In Fundus America (Atlanta) L.P. v. RHOC Consolidation, 313 Ga. App. at 124 (1) (d), we indicated that claims arising from the alleged breach of a lease that arose before the execution of an estoppel certificate were estopped thereby and that claims for the breach of the lease that arose thereafter would not be estopped, but that the appellant had failed to come forward with evidence of any such post-certificate breach notwithstanding the trial court’s specific invitation to do so. In assessing whether the claims at issue here are estopped, we find persuasive the observation of the Appellate Court of Illinois that “[b]y their very nature, estoppel certificates look to the course of performance. In an estoppel certificate, the signer is certifying the course of performance has not produced any defaults.” K’s Merchandise Mart v. Northgate L.P., 359 Ill. App. 3d 1137, 1144 (II) (B) (835 NE2d 965) (2005). In this case, the BUC and the security guards had been passing through the traffic control gate on Regent’s roadway system before the Association executed the Estoppel Certificate certifying that there were no defaults under the Easement. We conclude that the Association had agreed that the course of performance at the time of execution of the Estoppel Certificate had not given rise to a default under the Easement, and the Association is estopped from asserting a claim of default arising out of the same course of performance.

Nevertheless, we agree with the Association that evidence of changed conditions, specifically the change in the frequency in which the BUC passed through the traffic control gates, precludes the grant of summary judgment. The Association points to evidence that, after the execution of the Estoppel Certificate, changes in the operation of the BU C arising out of a new operation agreement between BCID and a third party in 2012 caused the shuttle bus to pass through the control gate much more frequently Specifically, the BUC routes were consolidated, and, the Association contends, the new schedule shows that the frequency of the buses passing through the traffic control point changed from between 15 and 30 minutes to between 9 and 12 minutes.

In its final order, the trial court held that it “is unpersuaded that the frequency of travel has increased, and thus[ ] invalidated the Estoppel Certificate.” However, viewing the evidence in the light most favorable to the Association, as the nonmovant, the Association did come forward with evidence as to a change in the operation of the BUC and an increased frequency of passage by buses through the traffic control gate. Regency does not contest the factual basis of the Association’s argument but responds that the frequency of passage through the control point is irrelevant given that the Easement provides that the Association’s right to access to the road at rush hour is triggered “[t]o the extent any vehicular traffic is allowed through such control points[.]” However, by its express terms, the Estoppel Certificate was a representation that “no default, or event with the passage of time or the giving of notice, or both, would constitute a default on the part of [Regent] ... has occurred” (emphasis supplied), and it did not speak to future events. The Association points to an issue of fact as to whether Regent, subsequent to the Estoppel Certificate, altered its course of performance by allowing significant changes in third party access to its private roadway It follows that Regent did not show, for purposes of its motion for summary judgment, that as a matter of law it is shieldedby the Estoppel Certificate from the Association’s breach of contract claim.

2. Regent contends that, even if this Court disagrees with the trial court’s reasoning as to effect of the Estoppel Certificate, we must affirm its grant of summary judgment under the principle of “right for any reason” because the Association’s claims are time barred. Regent’s arguments are premised on the six-year statute of limitation for breach of a written contract. OCGA § 9-3-24. Regent contends that the Association’s breach of contract claim accrued in 2004 and that the statute of limitation for breach of a written contract bars the Association’s breach of contract claim because it was not asserted until 2015. See Gamble v. Lovett School, 180 Ga. App. 708, 710 (350 SE2d 311) (1986) (“the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result”) (citation and punctuation omitted).

However, the statute of limitation for an action on an instrument under seal is 20 years, OCGA § 9-3-23, and, pretermitting whether Regent’s limitation argument would otherwise have merit, it is not applicable to the extent OCGA § 9-3-23 applies.

The law is clear that to constitute a sealed instrument, there must be both a recital in the body of the instrument of an intention to use a seal and the affixing of the seal or scroll after the signature. It is also established that a contract may be under seal as to some parties and not as to others.

(Citations and punctuation omitted.) McCalla v. Stuckey, 233 Ga. App. 397, 398 (504 SE2d 269) (1998). The body of the Easement provides that “the duly authorized representatives of Regent and Buckhead have signed and sealed this Agreement as of the date and year first above written.” Regent placed its corporate seal, containing the word “SEAL,” adjacent to its signature. Regent argues that the presence of its corporate seal is insufficient to establish it signed the Easement under seal because the purpose of a corporate seal is to show that the individual signing the document on behalf of a corporation has the authority to do so. Further, Regent maintains, Donalson v. Coca-Cola Co., 164 Ga. App. 712 (298 SE2d 25) (1982) is inconsistent with McCalla. See Donalson, 164 Ga. App. at 713 (2) (“The contract between DHS and Coca-Cola was under both of their corporate seals. Thus, any action properly brought under the contract could be brought within 20 years. Code Ann. § 3-703 (now OCGA § 9-3-23).”) (emphasis omitted). We decline Regent’s implicit invitation to overrule Donalson . Rather, considering both McCalla and Donal-son, we conclude that the Easement was an instrument under seal for purposes of OCGA § 9-3-23 because Regent’s intent to seal the contract is shown in the body of the instrument, and, in light of that express intent, the impression of Regent’s corporate seal is sufficient to constitute the affixing of the seal.

Decided March 6, 2017

Reconsideration denied March 27, 2017.

Williams Teusink, R. Kyle Williams, Christopher L. Collier, for appellant.

Morris, Manning & Martin, John A. Lockett III, for appellee.

3. The Association contends that the trial court erroneously found that, in addition to barring its claim for breach of contract, the Estoppel Certificate barred its remaining claims for breach of the duty of good faith and fair dealing, specific performance, injunctive relief, and declaratory judgment. As the trial court erred in granting summary judgment on the Association’s breach of contract claim, and as it did not reach the merits of the Association’s other claims, those claims remain outstanding as well.

Judgment reversed.

Branch and Mercier, JJ., concur.

       Specifically, Section 5.5 of the Easement provides that “Regent shall have the right to restrict or prohibit the flow of vehicular traffic on the Regent Roadway System at such points as it deems necessary or desirable during the periods from 7:00 a.m. to 9:30 a.m. and from 4:30 p.m. to 6:30 p.m. daily.”

       An estoppel certificate is a signed statement by a party certifying for another’s benefit that certain facts are correct, such as that a lease exists, that there are no defaults, and that rent is paid to a certain date. A party’s delivery of this statement estops that party from later claiming a different state of facts.
      (Citation and punctuation omitted.) Fundus America (Atlanta) L.P. v. RHOC Consolidation, 313 Ga. App. 118, 119 n. 7 (720 SE2d 176) (2011).

       OCGA § 23-1-10.

       This Court also found K’s Merchandise Mart to be persuasive authority in Fundus America (Atlanta) L.P. v. RHOC Consolidation, 313 Ga. App. at 122 (1) (b).

       See Payless Shoesource v. Joye, No. 2:12-cv-00517-MCE-DAD, 2014 U. S. Dist. LEXIS 14372 (D. C. Calif., February 4, 2014) (Appellant’s argument that its estoppel certificate could not be considered for conduct extending past its date of issuance was misplaced because the signer of an estoppel certificate is certifying that a course of performance has not produced any defaults, and, in that case, “the course of conduct both before and after the Estoppel Certificate was identical with respect to [the matter at issue].”).

       The sentence referenced by Regent provides, in full, that “[t]o the extent any vehicular traffic is allowed through such control points, the [Association] shall have the same vehicular access through such control point.” At this time in the litigation, the Association’s rights under the Easement have not been construed by the trial court as Regent’s motion for summary judgment was based on estoppel, and, alternatively, the bar of the statute of limitation, and the trial court granted summary judgment to Regent on the Association’s claim for declaratory judgment without reaching its merits. It is premature for this Court to assess whether the BUC’s frequency of travel through the control point is wholly immaterial to the Association’s rights under the Easement. For the purposes of addressing Regent’s argument, however, we cannot conclude that, because the Easement refers to “any vehicular traffic,” the Association is forever estopped from asserting a claim thereunder.

       The Association acknowledges that it informed the trial court at the motion for summary judgment hearing that it would not be proceeding with its claims for expenses of litigation and punitive damages.


author: Branch, Judge.

text:
    A16A2118.
    JOE ENTERPRISE, LLC v. KANE.
    (798 SE2d 97)
   Branch, Judge.

Moments after plaintiff Janet Kane left an IHOP restaurant, she fell on a ramp leading from the sidewalk in front of the restaurant into its parking lot. Kane later brought this negligence action against Joe Enterprise, LLC, the owner of the restaurant. On this appeal, Joe Enterprise argues that the trial court erred when it denied Joe Enterprise’s motion for summary judgment because Kane successfully negotiated the same ramp shortly before her fall and because any hazard posed by the ramp was open and obvious. We agree and reverse.

To prevail at summary judgment under OCGA § 9-11-56,the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing 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 plaintiff’s case.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (emphasis omitted).

Thus viewed in favor of Kane, the record shows that on the morning of March 16, 2013, a ‘Teautiful” and clear day, Kane’s husband drove Kane and the couple’s granddaughter to an IHOP restaurant in Kingsland, Georgia, and parked the family’s car legally in a handicapped parking space to the left of a concrete ramp leading from the parking surface to the sidewalk. The curb rose three-and-a-half inches above the parking surface. The ramp, which was made of concrete, tapered at its left and right sides but was flush with the sidewalk at its center. Neither the sidewalk nor the ramp was painted along the line where the two met each other. Kane, who had previously visited this IHOP, exited the car, “walked up the ramp” from the parking surface to the sidewalk, and entered the restaurant. After their meal, the Kanes left the restaurant. As Kane stepped off the sidewalk and “one or two steps” onto the ramp, she felt “unevenness” under “both of [her] feet,” and testified that “it just took me and spun me out and I wound up on my bottom on the ramp.” Kane suffered a broken leg and other injuries as a result.

Kane first testified that she could not draw a circle to show where she was stepping when she fell. When questioned further, however, Kane testified that she was “positive” or “almost positive” that she walked onto the “middle” of the ramp. On cross-examination, Kane also testified that she fell while attempting to walk over the right side of the ramp where it flared down from the sidewalk toward the restaurant entrance side of the parking lot, and she circled a photograph of the scene to show the location of her fall. Kane also retained an expert, Mark Williams, who testified that on the basis of his inspection of the photographs of the scene, “[t]he unmarked drop-off [of the ramp’s side flares] at the concrete sidewalk curb . . . created a deception for pedestrians” descending the ramp. Williams also testified that the ramp violated a variety of safety standards, including the Americans with Disabilities Act Accessibility Guidelines.

After moving to exclude the expert’s testimony on grounds including that he had not visited the actual site of the accident, Joe Enterprise moved for summary judgment. Without ruling on the motion to exclude the expert’s testimony, but relying in part on that testimony, the trial court held that questions of fact remained as to whether Kane had equal knowledge of any hazard presented by the ramp and whether Kane exercised reasonable care under the circumstances. We granted Joe Enterprise’s application for interlocutory review. On appeal, Joe Enterprise argues that the trial court erred when it denied the motion for summary judgment because Kane successfully negotiated the ramp on her way into the restaurant and because any defect in the ramp was open and obvious.

1. As a preliminary matter, we note that because Kane has not explained the inconsistencies in her testimony as to where she fell, she can only speculate as to what caused her fall.

In considering a motion for summary judgment, all the evidence is normally construed in favor of the nonmoving party, but testimony by the nonmoving party which contradicts other testimony given by the nonmoving party will be construed against that party, unless a reasonable explanation for the contradiction is offered.

Hall v. Norfolk Southern R. Co., 258 Ga. App. 712, 715 (574 SE2d 902) (2002), citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (1) (343 SE2d 680) (1986).

Kane appears to argue that her fall was proximately caused by the lack of any color demarcation between the edge of the sidewalk and the side flares of the ramp. But Kane has offered no explanation for the inconsistencies between her initial refusal to say where she fell, her later testimony that she was “almost positive” that she fell in the middle of the ramp (where it is flush with the sidewalk), and her final circling of the photograph to suggest that she fell on the right side of the ramp. “[Ejven if we were to assume a genuine issue with regard to the existence of a hazard,” then, “speculation and conjecture” are the “only support” for the conclusion that any specific defect in the ramp’s design, including the sloping away of the two sides of the ramp, caused Kane to fall. Under these circumstances, summary judgment must be granted to Joe Enterprise. See Pinckney v. Covington Athletic Club and Fitness Center, 288 Ga. App. 891, 893-894 (655 SE2d 650) (2007) (citation omitted) (applying the Prophecy rule and holding that where evidence did not raise a genuine issue of fact as to why plaintiff fell, summary judgment was properly granted to defendant); Pennington v. WJL, LLC, 263 Ga. App. 758, 761 (2) (589 SE2d 259) (2003) (affirming grant of summary judgment to defendant when the only causation evidence was the presence of hoses at the accident scene and “speculation after the fact” that plaintiff must have tripped over them); Moore v. Teague, 255 Ga. App. 220-221 (564 SE2d 817) (2002) (affirming grant of summary judgment to defendant where plaintiff “assumed” she slipped on wet floor, but “did not actually know if the floor was wet” and did not know why she slipped).

2. As Joe Enterprise argues, moreover, Kane’s proffered evidence of a “deceptive” condition does not create a genuine question of fact as to whether the restaurant had superior knowledge of the ramp’s alleged defects. As in Norwich v. The Shrimp Factory, 332 Ga. App. 159 (770 SE2d 357) (2015), Kane’s successful negotiation of the ramp shortly before her fall bars recovery.

In order to recover for injuries sustained in a fall, an invitee such as Kane “must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997); see also American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009). As to the second prong of the Robinson test, we are authorized to reverse a denial of summary judgment to the defendant only when “the record shows plainly, palpably and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety” Callaway Gardens Resort v. Bierman, 290 Ga. App. 111, 112 (658 SE2d 895) (2008) (citation and punctuation omitted).

When a plaintiff’s suit involves a static condition such as the ramp at issue here, and when “[the] invitee knows of the condition or hazard[,] there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” Callaway Gardens, 209 Ga. App. at 112, quoting Powell v. Woodridge Condo. Assn., 206 Ga. App. 176, 177 (424 SE2d 855) (1992); see also Brewer v. Atlanta South 75, 288 Ga. App. 809, 810 (655 SE2d 631) (2007). This is so because

a claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom.

Perkins v. Val D'Aosta Co., 305 Ga. App. 126, 128 (699 SE2d 380) (2010) (citations and punctuation omitted; emphasis supplied). The rule imputing knowledge to an invitee of the danger posed by a premises feature is limited “to cases involving a static condition that is readily discernible to a person exercising reasonable care for his own safety.” Strauss v. City of Lilburn, 329 Ga. App. 361, 364 (765 SE2d 49) (2014) (citation and punctuation omitted; emphasis in original); see also Perkins, 305 Ga.App. at 128-129. Such a limitation “is simply a restatement of the truism, still applied, that a plaintiff is held to have knowledge of an open and obvious condition.” Norwich, 332 Ga. App. at 162 (punctuation omitted); see also Wright v. K-Mart Corp., 286 Ga. App. 765 (650 SE2d 300) (2007) (no error in granting a store summary judgment as to plaintiff’s claim arising from a trip over store’s shelf corner); Music v. Steamco, Inc., 265 Ga. App. 185, 186 (593 SE2d 370) (2004) (plaintiff was held to have had equal knowledge of water on steps leading from restaurant).

As we emphasized in Norwich, “ ‘it is the plaintiff’s knowledge of the specific hazard which caused the fall that determines whether the plaintiff can prevail on a premises liability claim.’ ” 332 Ga. App. at 163 (emphasis in original), quoting Orff v. Stonewood Restaurant Group, 285 Ga.App. 488, 490 (646 SE2d 702) (2007). Here, the record shows without dispute that Kane successfully traversed the ramp, which included its sloping sides, on her way into the restaurant, and there is no evidence that conditions had changed such that her perception of the ramp could have been materially different during her departure from the restaurant. See Norwich, 332 Ga. App. at 163 (affirming grant of summary judgment when plaintiff had successfully negotiated a step up into a bathroom stall shortly before she attempted to descend the step under the same lighting conditions and fell); Orff, 285 Ga.App. at 490 (affirming grant of summary judgment when plaintiff stepped up into an elevated booth two hours before attempting to descend the same step).

Kane’s reliance on expert testimony to create a question of fact as to her equal knowledge of the hazard is also unavailing. Kane proffered expert testimony as to the “deceptive” conditions posed by the ramp, including the absence of warning strips along the sections where it sloped down toward the parking lot surface and fell away from the sidewalk. As we noted in Norwich, however, any

Decided March 9, 2017

Reconsideration denied March 27, 2017

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Steven G. Blackerby, for appellant.

The Williams Litigation Group, Nathan T. Williams, Brian D. Corry, for appellee.

reliance on expert testimony [as to] an “apparent continuity” appearing from one angle but not another would gut the longstanding rule that the successful negotiation of an obvious, static, and specific hazard,... bars recovery for injuries sustained in a fall on the way back down the same hazard.

332 Ga. App. at 163.

We understand that an invitee like Kane “is not. . . required, in all circumstances, to look continuously at the [ground or] floor, without intermission, for defects." American Multi-Cinema, 285 Ga. at 447 (3) (punctuation and footnote omitted). But “the ultimate issue in this case is whether the owner of this property was negligent in maintaining a hazardous condition on the property, which fault cannot arise from a failure to warn an invitee of the obvious.” Norwich, 332 Ga. App. at 164 (citation and punctuation omitted). Because any hazard posed by the ramp was open and obvious under the undisputed conditions under which Kane successfully traversed the ramp, the trial court erred when it denied summary judgment to Joe Enterprise for Kane’s claim arising from her fall down the same ramp under the same conditions.

Judgment reversed.

Mercier, J., concurs. Ellington, P. J., concurs in judgment only.

       Although our whole-court decision in Norwich appeared more than a year before the trial court filed the order at issue in this appeal, the trial court did not cite or discuss that decision, which distinguished many of the cases on which that court relied.

        Christensen v. Overseas Partners Capital, 249 Ga. App. 827 (549 SE2d 784) (2001), cited by the trial court and on appeal, does not require a different result. There, the bottom of an uneven handicapped ramp was “sunken in” below the level of the parking deck pavement, and the plaintiff testified that she did not notice the height differential as she stepped from the parking deck onto the ramp without incident on her way into a building, such that the height differential would not have been visible except by looking specifically downward at the moment she crossed onto the ramp or by looking backward after doing so successfully. Id. at 828. We noted that the height differential in that ramp was “not noticeable” on entering that building, such that we “[could] not conclude as a matter of law that [the plaintiff] negotiated the allegedly dangerous condition on her way up the ramp.” Id. at 829 (2). By contrast, the height differential between the sides of this ramp and the sidewalk is plain in the photograph of the ramp provided by Kane herself, and would have been so to any person approaching the ramp from the parking lot on a clear day.