author: MILLER, Presiding Judge. ANDREWS, Presiding Judge,

text:
    A15A2073, A15A2074.
    SHEATS v. THE KROGER COMPANY et al. (two cases).
    (784 SE2d 442)
   MILLER, Presiding Judge.

In this personal injury case, Brenda Sheats sued The Kroger Company and Clayton Distributing Company, Inc. (“Clayton”), asserting claims based upon product liability, ordinary negligence, and res ipsa loquitur. Sheats also filed a motion for spoliation sanctions, asserting that Kroger destroyed evidence that was essential to her complaint.

In Case No. A15A2073, Sheats appeals from the trial court’s order granting summary judgment to Clayton and denying her motion for spoliation sanctions against Kroger. In Case No. A15A2074, Sheats appeals from the grant of summary judgment to Kroger. For the reasons that follow, in Case No. A15A2073, we affirm the trial court’s grant of summary judgment to Clayton, but vacate the trial court’s denial of Sheats’ motion for spoliation sanctions against Kroger, and we remand this case for further proceedings. In Case No. A15A2074, we affirm the trial court’s grant of summary judgment to Kroger on Sheats’ product liability and res ipsa loquitur claims, but reverse the grant of summary judgment to Kroger on Sheats’ ordinary negligence claim.

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 apply a de novo standard of review to an appeal from the grant of summary judgment, construing the evidence in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555 (588 SE2d 441) (2003).

Viewed in this light, the evidence shows that, on November 7, 2011, Sheats was shopping at a Kroger grocery store in Athens. Sheats took a cardboard package containing several glass bottles of Red Rock Golden Ginger Ale off a shelf and placed it in her cart. Sheats then lifted a second pack off the shelf. As she did so, the bottom of the package opened up, all of the glass bottles fell to the floor, and they broke. At least one bottle struck Sheats’ left foot, injuring her.

A store security guard was called to the aisle where the incident occurred. Upon arriving at the scene, the guard found Sheats standing among broken glass and spilled liquid and holding an empty cardboard package with a bottom that was “fully broken open[ ].” When Sheats told the security guard what happened, the guard asked Sheats to step away from the debris, and she asked for the package Sheats was holding. Sheats refused and told the guard that she wanted to keep the package as evidence. The guard replied that she would keep the package as evidence instead. Sheats then complained to the guard about pain in her foot. The guard offered to call an ambulance, but Sheats declined, saying that she might go to a doctor later.

The guard escorted Sheats to the customer service counter at the front of the store, where Sheats told the store manager what happened. Sheats then told the manager that her left foot was hurting and she was going to the hospital. The manager completed a three-page “Customer Incident Report & Investigation Check List,” which had the following statement printed on each page: “This report is being prepared in anticipation of litigation under the direction of legal counsel. It is confidential and is not to be released to any person unless approved by legal counsel and authorized by a member of Kroger management with such authority.” The manager told Sheats that he would forward information about the incident to Kroger’s headquarters, but he was not sure if Kroger’s insurance would pay for treatment of the injury.

Shortly after the incident, the manager inspected the package and the shelf where it had been displayed and observed that both were dry. According to the manager,

[f]or some unknown reason, the glue on one side of the bottom of the package failed to stay glued to the other flap. I observed that one of the outside bottom flaps was cleanly separated from the other, inside bottom flap, and the glue was only stuck to one flap. It appeared to me that the glue didn’t stick sufficiently to the other flap[.]

The manager then inspected all of the other Red Rock Ginger Ale packages on the shelf, but observed no similar problem. After inspecting the package, the manager recorded it, for inventory purposes, as a “lost” item due to breakage and put it with outgoing refuse to be discarded. The manager stated in his affidavit that, when he spoke to Sheats after the incident, he did not get the impression that Sheats would later file a lawsuit.

After leaving Kroger, Sheats went to a hospital emergency room. She was subsequently diagnosed with a blood clot in her left big toe and had to have surgery to remove the toenail. Sheats had to wear a protective shoe for two months after her surgery. Additionally, her toenail failed to grow back correctly, and she still had pain in her toe at the time of the summary judgment hearing.

Sheats filed this personal injury suit against Kroger and Clayton, setting forth product liability, ordinary negligence and res ipsa loquitur claims. Clayton filed a motion for summary judgment on the ground that Sheats had not provided any evidence to prove that the cardboard package had been defective. Kroger also filed a motion for summary judgment on the same basis. Sheats then filed a motion for spoliation sanctions against both defendants on the ground that Kroger had destroyed essential evidence, i.e., the package.

The trial court granted summary judgment to Clayton and Kroger on Sheats’ product liability claims due to her failure to present evidence that the package was defective. It denied Sheats’ motion for spoliation sanctions on the ground that she did not provide Kroger with actual notice that she was contemplating litigation at the time of the incident. The trial court also granted summary judgment to Kroger on Sheats’ ordinary negligence and res ipsa loquitur claims.

Case No. A15A2073

1. Sheats argues that the trial court erred in denying her motion for spoliation sanctions because, at the time of the incident, Kroger should have reasonably anticipated that she was contemplating litigation. We agree.

(a) Spoliation sanctions against Kroger.

Spoliation is “ ‘the destruction or failure to preserve evidence’ that is relevant to ‘contemplated or pending litigation.’ ” (Citation omitted.) Phillips v. Harmon, 297 Ga. 386, 393 (II) (774 SE2d 596) (2015). The destruction of evidence “may give rise to the rebuttable presumption that the evidence would have been harmful to the spoliator. However, in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue.” Id. at 394 (II). Moreover, a defendant’s duty to preserve evidence is not limited to situations where the plaintiff provides actual or express notice of litigation. Rather,

[n]otice that the plaintiff is contemplating litigation may also be derived from . . . other circumstances, such as the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances.

Id. at 397 (II). “Certainly a trial court has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse. However, an appellate court cannot affirm a trial court’s reasoning which is based upon an erroneous legal theory.” (Citations omitted.) Id.

In this case, the trial court ruled that the uncontroverted evidence showed that Sheats failed to provide Kroger with actual notice that she was contemplating litigation at the time of her injury. In so ruling, the trial court relied solely on Sheats’ deposition, wherein she was asked whether she was contemplating filing a lawsuit when she asked to keep the package, and Sheats answered “No.” The trial court’s ruling was based on the legally incorrect premise that Kroger’s duty to preserve the evidence required actual notice of litigation from Sheats. Consequently, we vacate the denial of Sheats’ spoliation motion as to Kroger and remand this case for the trial court to reconsider that motion in light of the correct legal analysis as set forth herein. See Phillips, supra, 297 Ga. at 397-398 (II).

(b) Spoliation sanctions against Clayton.

Sanctions for spoliation cannot be applied against a party who did not destroy the evidence when there is no evidence to show that the destroying party was acting at the behest of the other party. Boswell v. Overhead Door Corp., 292 Ga. App. 234, 235-236 (664 SE2d 262) (2008). It follows that, because there is no evidence to show that Clayton directed Kroger to destroy the package or was even aware of the incident before it was destroyed, the trial court properly denied the motion for spoliation sanctions as to Clayton.

2. Sheats contends that the trial court erred in granting summary judgment to Clayton on her product liability claim on the basis that she failed to present evidence to prove that the package was defective. We disagree.

Regardless of whether the plaintiff proceeds under a theory of strict liability or negligence, the essence of a product liability claim is the presence of an actual defect in the product. Boswell, supra, 292 Ga. App. at 235. In order to prevail on such a claim, Sheats must prove that there was a defect in the product when it left the manufacturer, the defect was caused by the manufacturer’s negligence, and the defect caused her injury. Id.; Miller v. Ford Motor Co., 287 Ga. App. 642, 644 (1) (653 SE2d 82) (2007).

In this case, Sheats was unable to produce the package in order to prove a defect in the design or manufacturing because Kroger had discarded it. As noted above, however, no presumption of a product defect applies to Clayton as a result of such spoliation. See Division 1 (b), supra. Further, although Sheats points to evidence about the condition of the package at the time she removed it from the store shelf, she is unable to prove that there was an original design or manufacturing defect that existed at the time it left Clayton’s possession. Instead, it is just as likely that the problem that caused the package’s bottom flap to open occurred because of something that was not related to its manufacture that occurred at some point after the package left Clayton’s possession. See Miller, supra, 287 Ga. App. at 644 (1); see also Jenkins v. Gen. Motors Corp., 240 Ga. App. 636, 637 (1) (524 SE2d 324) (1999) (finding that there was evidence of several plausible explanations for the vehicle’s brakes to fail other than a manufacturing defect). In fact, the evidence shows that none of the other packages of Red Rock Ginger Ale on Kroger’s shelf had a problem similar to the one at issue here. Consequently, Sheats cannot meet her burden of proving, by a preponderance of the evidence, that the package was defective when it left Clayton’s possession. Thus, the trial court did not err in granting summary judgment to Clayton on her product liability claim.

3. To the extent Sheats argues that the trial court erred in ruling that she was required to present expert testimony on the issue of whether the package was defective, the trial court’s order does not show that it issued such a ruling. Accordingly, this alleged error presents nothing for this Court to review. See Williamson v. Strickland & Smith, Inc., 296 Ga. App. 1, 6 (7) (673 SE2d 858) (2009) (this Court will not consider issues that were not ruled upon by the trial court).

Case No. A1SA2074

4. Sheats argues that the trial court erred in granting summary judgment to Kroger on her res ipsa loquitur claim. In its order, the trial court ruled that Sheats had failed to establish an essential element of that claim, i.e., that the package had been under Kroger’s exclusive control.

The elements of the doctrine of res ipsa loquitur are: (1) an injury which ordinarily does not occur in the absence of someone’s negligence; (2) the injury must be caused by an agency or instrumentality within the defendant’s exclusive control; and (3) the injury was not caused by any voluntary action or contribution on the part of the plaintiff. Aderhold v. Lowe’s Home Centers, 284 Ga. App. 294, 295 (643 SE2d 811) (2007). “Res ipsa loquitur should be applied with caution and only in extreme cases, and is not applicable when there is an intermediary cause which could have produced the injury.” (Citations and punctuation omitted.) Id.

Here, the trial court properly concluded that the package had not been in Kroger’s exclusive control because the undisputed evidence showed that the package had been placed on a display shelf and was readily accessible to other customers. See Aderhold, supra, 284 Ga. App. at 296 (res ipsa loquitur doctrine did not apply when the undisputed evidence showed that the item at issue was stacked on a shelf within the reach of other customers). Accordingly, the trial court properly granted summary judgment to Kroger on Sheats’ res ipsa loquitur claim.

5. Sheats contends that the trial court erred in granting summary judgment to Kroger on her product liability claim based upon a finding that she failed to present evidence to prove that the package was, in fact, defective. Sheats’ product liability claim was based upon allegations that Kroger negligently sold a defective and unsafe product and failed to warn customers of the defect. Sheats presented evidence showing that the bottom of the package opened up when she lifted it off the shelf. Sheats is unable to prove, however, that the package opened because of an original manufacturing defect, as opposed to some other cause, such as mishandling during delivery or while stocking the shelf. See Division 2, supra. Consequently, the trial court did not err in granting summary judgment to Kroger on Sheats’ product liability claim. See Miller, supra, 287 Ga. App. at 645 (1) (plaintiffs could not prevail on their failure to warn claim because that claim was predicated on the allegation that the product at issue had an original manufacturing defect).

6. Sheats contends that the trial court erred in granting summary judgment to Kroger on her ordinary negligence claim. She argues, inter alia, that jury issues remain regarding whether Kroger negligently failed to maintain a safe product display.

Pursuant to longstanding Georgia law, “[t]he situation of the retailer and consumer of packed products is properly governed by the rules of negligence law.” (Citations and punctuation omitted.) Howard v. Jacobs’ Pharmacy Co., 55 Ga. App. 163, 164 (189 SE 373) (1937). Accordingly, retailers owe consumers a duty “to supply goods packed by reliable manufacturers, [which] are without imperfections that may be discovered by an exercise of the care, skill, and experience of dealers in such products generally.” (Citations and punctuation omitted.) Id.; see also Brock v. Simpson, 103 Ga. App. 800, 801 (1) (120 SE2d 885) (1961); Fleetwood v. Swift & Co., 27 Ga. App. 502, 505 (108 SE 909) (1921).

Here, with regard to the allegedly defective package of ginger ale, Sheats presented evidence that the glue on one side of the bottom of the package failed to stay glued to the other flap, one of the outside bottom flaps was cleanly separated from the inside bottom flap, and the glue was stuck to only one flap. Because Kroger discarded the allegedly defective package, it cannot show that the alleged defect was not reasonably observable, and Sheats cannot show that it was. Consequently, the question of whether Kroger was or was not negligent, and whether Sheats’ negligence claim is a jury issue, cannot be determined until the trial court first determines on remand whether spoliation occurred and, if so, which spoliation sanctions are appropriate.

In so holding, we note that, with regard to the spoliation issue, the trial court is authorized to craft a solution that fits the facts. For instance, the trial court may

(1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence. This is not an exhaustive list of .sanctions [that] a trial court may impose; rather, the trial court has wide latitude to fashion sanctions on a case-by-case basis, considering what is appropriate and fair under the circumstances.

(Citation and punctuation omitted.) Kitchens v. Brusman, 303 Ga. App. 703, 709 (1) (c) (694 SE2d 667) (2010).

Judgment affirmed in part and vacated in part, and case remanded with direction in Case No. Al 5A2073. Judgment affirmed in part and reversed in part, and case remanded with direction in Case No. A15A2074.

Barnes, P. J., Ellington, P. J., Dillard, McFadden, and Branch, JJ., concur. Andrews, P. J., concurs fully in Divisions 1 (b), 2, 3, 4, and 5, and dissents as to Divisions 1 (a) and 6.

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

1. Under established Georgia law,

[i]t is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury.

King Hardware Co. v. Ennis, 39 Ga. App. 355, 360 (147 SE 119) (1929).

That general rule has some age on it, but it has been consistently followed. See Fed. Ins. Co. v. Farmer’s Supply Store, 252 Ga. App. 17, 19 (555 SE2d 238) (2001); Thomasson v. Rich Products Corp., 232 Ga. App. 424, 426 (1) (502 SE2d 289) (1998); Sirmons v. Derst Baking Co., 221 Ga. App. 127, 128 (470 SE2d 515) (1996); Brock v. Simpson, 103 Ga. App. 800, 801 (1) (120 SE2d 885) (1961); Davis v. Williams, 58 Ga. App. 274 (2) (198 SE 357) (1938).

Decided March 21, 2016.

Palmore, Boenig & Associates, Malcolm A. Palmore, Markus Boenig, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Candis R. Jones, Jeffrey M. Wasick; Cowsert & Avery, M. Steven Heath, Matthew A. Moseley, for appellees.

In the instant case, there was no evidence to alert anyone, store or customer alike, that the package was defective. Imposition of liability in this case would, in effect, render Kroger an insurer. I believe the circumstances here dictated the trial court’s grant of summary judgment for Kroger on the negligence claim.

2. Inasmuch as the trial court properly granted summary judgment for Kroger on the ordinary negligence claim as a matter of law under the venerable line of authority cited above, the discarding of the carton was of no relevance to that cause of action. See Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 798 (1) (697 SE2d 888) (2010).

Phillips v. Harmon, 297 Ga. 386, 393 (774 SE2d 596) (2015), relied upon by the majority, alarmingly expands the situations where a defendant may be charged with notice of anticipated litigation. It seems to place all defendants in a “damned if you do, damned if you don’t” posture, with regard to conducting any risk exposure assessment following any injury and the preservation of any item that potentially could have some evidentiary use. But it does not stand for the proposition that where no cause of action exists as a matter of law, the issue of possible spoliation may be tossed to the jury in hopes of creating one.

Accordingly, I respectfully dissent from Divisions 1 (a) and 6 of the majority opinion. I concur with Divisions 1 (b), 2, 3, 4, and 5.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A0979.
    SHIRLEY v. THE STATE.
    (785 SE2d 24)
   Ray, Judge.

In Shirley v. State, 330 Ga. App. 424 (765 SE2d 491) (2014), this Court affirmed the trial court’s order denying Michael Scott Shirley’s motion to suppress evidence related to images of child pornography seized from his home, finding that the application for a search warrant was supported by probable cause. In Shirley v. State, 297 Ga. 722 (777 SE2d 444) (2015), the Supreme Court reversed, determining that the warrant application was insufficient to support probable cause and that Shirley’s motion to suppress should have been granted. Accordingly, we vacate our earlier opinion, adopt the Supreme Court’s opinion as our own, and reverse the judgment of the trial court.

Decided March 22, 2016.

Crawford & Boyle, Eric C. Crawford, for appellant.

Daniel J. Porter, District Attorney, Richard C. Armond, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews, P. J., and McFadden, J., concur.


author: Ellington, Presiding Judge. DILLARD, Judge,

text:
    A15A2067.
    MBIGI v. WELLS FARGO HOME MORTGAGE.
    (785 SE2d 8)
   Ellington, Presiding Judge.

Lovemore Mbigi sued Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. (“Wells Fargo”) after Wells Fargo sold his home in a foreclosure sale. In his complaint, as amended, Mbigi asserted claims against Wells Fargo for wrongful foreclosure, violation of the Georgia Racketeer Influenced and Corrupt Organizations Act (“RICO”), fraudulent and/or negligent misrepresentation, intentional infliction of emotional distress, punitive damages, breach of duty of good faith and fair dealing, and promissory estoppel. The trial court granted Wells Fargo’s motion to dismiss Mbigi’s complaint for failure to state a claim. See OCGA § 9-11-12 (b) (6). On appeal, Mbigi contends that the trial court erred in dismissing his claims. We affirm in part and reverse in part for the reasons set forth below.

A motion to dismiss for failure to state a claim should not be granted unless:

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525 (1) (668 SE2d 723) (2008). In other words, “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” (Citation and punctuation omitted.) Austin v. Clark, 294 Ga. 773, 775 (755 SE2d 796) (2014). On appeal, this Court “review[s] de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor.” (Citation and punctuation omitted.) Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750 (751 SE2d 545) (2013).

In his complaint, Mbigi alleges that, in 2007, he executed a security deed in favor of Wells Fargo’s predecessor to secure a loan used to fund a 60 percent portion of the $2.68 million purchase price of a Gwinnett County home (the “Property”). The terms of the loan, an “Option ARM,” allowed Mbigi to pick a monthly payment that was less than the amount needed to pay the accruing interest, resulting in negative amortization. Mbigi was not informed by Wells Fargo or the closing attorney that certain payment options would result in negative amortization. When Mbigi later inquired about the mortgage balance, which he had noticed was “very high,” Wells Fargo told him that it would investigate and modify the loan. In December 2008, Wells Fargo told Mbigi to stop loan payments until the loan was modified. In 2009, Mbigi attempted to pay the loan in full, but Wells Fargo refused to accept the payment. Wells Fargo accepted a loan payment in 2010, but then informed Mbigi that he should not make further payments until the loan was modified. Wells Fargo later informed Mbigi that, because of the negative amortization, the loan had to be modified before he could resume payments, and that he should ignore any communications regarding mortgage payments. Mbigi continued to inquire with Wells Fargo about the loan modification status in 2011, 2012, and 2013. Wells Fargo then referred the loan to its attorneys for foreclosure, “at the same time it was purportedly working on a loan modification.”

On February 8, 2014, Mbigi left the United States on business. While he was away, Wells Fargo’s counsel mailed the foreclosure sale notice to a previous notice address and not the address that Mbigi had requested in writing that Wells Fargo use for all correspondence. On June 3, 2014, Wells Fargo sold the Property in a foreclosure sale.

1. Mbigi asserted a claim against Wells Fargo for wrongful foreclosure. A claim of wrongful foreclosure requires the plaintiff to “establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.” (Citations, punctuation and footnote omitted.) DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444, 448 (4) (662 SE2d 141) (2008). Under OCGA § 23-2-114, “Mowers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised.” And “[t]he legal duty imposed upon a foreclosing party under a power of sale is to exercise that power fairly and in good faith.” Wells Fargo Bank, N.A. v. Molina-Salas, 332 Ga. App. 641, 642 (1) (774 SE2d 712) (2015).

(a) In his complaint, Mbigi contended that Wells Fargo breached its duty to exercise the power of sale fairly and in good faith in that it failed to provide him with notice of the foreclosure sale in compliance with OCGA § 44-14-162.2 (a). Mbigi contends that the trial court erred in dismissing his wrongful foreclosure claim to the extent that the claim was based on this alleged breach of duty. We agree.

OCGA § 44-14-162.2 (a) provides, in relevant part, that the notice of the initiation of proceedings to exercise a power of sale shall be sent “to the property address or to such other address as the debtor may designate by written notice to the secured creditor.” Id. In the complaint, Mbigi stated that he provided written notice to Wells Fargo of the designated address it was to use for all correspondence, but that Wells Fargo did not send the notice of the foreclosure sale to that address. The complaint does not disclose with certainty that Mbigi would not be entitled to any relief on account of his contention that Wells Fargo failed to provide the proper statutory notice of foreclosure. See Farris v. First Financial Bank, 313 Ga. App. 460, 464 (2) (722 SE2d 89) (2011) (“The plain language of OCGA § 44-14-162.2 (a) requires the secured creditor send notice to the property address unless the debtor designates in writing another address.”) (Punctuation and footnote omitted; emphasis supplied). See also Babalola, 324 Ga. App. at 753 (2) (a) (allegation that lender failed to provide notice offoreclosure as required by OCGA § 44-14-162.2 supported a wrongful foreclosure claim under Georgia law).

The trial court concluded that Wells Fargo’s alleged failure to comply with the notice requirement afforded no basis for a claim of wrongful foreclosure because Wells Fargo had denied the allegation and maintained that it had provided Mbigi’s counsel with copies of the notices sent to the Property’s address. The order also referenced a copy of the notice of sale under power which was attached to the motion of a third party. Pretermitting whether anything referenced by the trial court, if later established, would conclusively establish that Wells Fargo complied with the statutory notice requirement, the attachment to a motion of a third party was not part of the pleadings in the case and could not be considered as part of the motion to dismiss. See, e.g., Babalola, 324 Ga. App. at 751, n. 4 (attachment to a brief cannot be considered in a motion to dismiss). See also OCGA § 9-11-10 (c) (“[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes”). Wells Fargo’s factual contentions constituted “evidence which may or may not be developed during discovery and can be considered on a subsequent motion for summary judgment.” Austin v. Clark, 294 Ga. at 775. If a trial court considers evidence outside the pleadings, then “when it does so it converts the motion to dismiss into a motion for summary judgment.” Babalola, 324 Ga. App. at 751, n. 4. In such case, the trial court would have been required to inform Mbigi that he “would have no less than 30 days within which to submit his own evidence in response to the motion for summary judgment.” (Citation and punctuation omitted.) Id. The trial court did not follow that procedure here, and Mbigi did not acquiesce to consideration of matters outside the pleadings. Accordingly, we conclude that the trial court erred in finding that Mbigi’s claim that Wells Fargo breached its duty in failing to provide proper notice of the foreclosure sale showed no basis for a wrongful foreclosure claim.

(b) Mbigi also contended in his complaint that Wells Fargo breached its duty by failing to include in the notice of foreclosure “the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor,” as required by OCGA § 44-14-162.2 (a). According to the complaint, the notice of foreclosure sale named Wells Fargo as the entity with such authority but, in fact, Wells Fargo did not have full authority to negotiate, amend and modify all terms of the mortgage. Rather, Mbigi contends that the entity with full authority was the owner of the note, and that the owner of the note was an entity different than Wells Fargo. The trial court held that the complaint nevertheless failed to state any basis for a wrongful foreclosure claim because a reasonable person would construe Wells Fargo to be the proper agent of the entity with full authority, and that, in addition, Mbigi “appears to concede” that Wells Fargo had the authority to modify the loan by seeking a loan modification from Wells Fargo as part of the relief Mbigi sought in this action. Mbigi claims that the trial court erred in these rulings.

In You v. JP Morgan Chase Bank, N.A., 293 Ga. 67, 74 (2) (743 SE2d 428) (2013), the Supreme Court of Georgia looked to the plain language of OCGA § 44-14-162.2 to determine whom the notice contemplated thereby must name. Under the statute, the Court noted, the notice must name “the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor.” (Citation and punctuation omitted.) You, 293 Ga. App. at 74 (2). Thus,

[i]f that individual or entity is the holder of the security deed, then the deed holder must be identified in the notice; if that individual or entity is the note holder, then the note holder must be identified. If that individual or entity is someone other than the deed holder or the note holder, such as an attorney or servicing agent, then that person or entity must be identified. The statute requires no more and no less.

You, 293 Ga. at 74-75 (2).

Wells Fargo argues that its notice fully complied with OCGA § 44-14-162.2 because the complaint shows that it held the security deed, and under You, the holder of the security deed may be the party identified under the statute. However, while the party to be identified might be the holder of the security deed, if that is the entity which has full authority to negotiate, amend, and modify the terms of the mortgage, the entity with such authority could also be “someone other than the deed holder,” including, as alleged here, the owner of the note. You, 293 Ga. at 74 (2). Thus, Wells Fargo does not show, for purposes of the motion to dismiss, that it fully complied with OCGA § 44-14-162.2.

Moreover, Wells Fargo cannot show, for purposes of its motion to dismiss, that it substantially complied with the statute. This Court has “permitted substantial compliance with OCGA § 44-14-162.2 (a) in a limited circumstance involving the requirement to provide certain contact information.” Peters v. CertusBank Nat. Assn., 329 Ga. App. 29, 31 (3) (763 SE2d 498) (2014). See TKW Partners v. Archer Capital Fund, 302 Ga. App. 443, 445-446 (1) (691 SE2d 300) (2010) (notice that provided the name of the lender/secured party and the contact information for the lender’s attorney, who had “as much authority as any individual to negotiate a loan modification on [the lender’s] behalf,” substantially complied with OCGA § 44-14-162.2). See also Stowers v. Branch Banking & Trust Co., 317 Ga. App. 893, 896 (1) (731 SE2d 367) (2012) (concluding that holding in TKW Partners stands for the principle “that substantial compliance with the contact information requirement of OCGA § 44-14-162.2 (a) is sufficient”). However, in TKW Partners and Stowers, the notice at issue provided contact information for the attorney for the entity with modification authority, which entity was named in the notice, and we have indicated that TKW and Stowers apply only to the limited circumstances of those cases. See Peters v. CertusBank Nat. Assn., 329 Ga. App. at 31 (2). Because You requires that the entity with full authority be named in the notice, we conclude that Mbigi could introduce evidence, within the framework of his complaint, that the notice of foreclosure did not comply with OCGA § 44-14-162.2.

The trial court also found that, because Mbigi also sought relief from Wells Fargo by seeking a loan modification, he “appears to concede that Defendant Wells Fargo is the entity with full authority to modify the loan.” However, even assuming that Mbigi’s claims were inconsistent, he was free to plead alternative and inconsistent theories in his complaint. See Southern v. Sphere-Drake Ins. Co., 226 Ga. App. 450, 451 (486 SE2d 674) (1997). See also OCGA § 9-11-8 (e) (2) (“A party máy also state as many separate claims or defenses as he has, regardless of consistency and whether based on legal or on equitable grounds or on both.”). The trial court erred in finding that the complaint’s allegation that the notice of foreclosure failed to comply with OCGA § 44-14-162.2 (a) did not state any basis for a wrongful foreclosure claim.

(c) Mbigi further asserted in his complaint that Wells Fargo directed him to stop making payments on the loan in 2008, and then held him in default for failure to pay. Mbigi alleged that Wells Fargo’s directive to stop making payments and his detrimental reliance thereon was sufficient consideration to support a “quasi-new agreement.” He contends that Wells Fargo therefore breached its duty to exercise the power of sale fairly and in good faith by failing to provide him before it foreclosed with reasonable notice and opportunity to cure, as contemplated by OCGA § 13-4-4. The trial court found the alleged quasi-contract to be unenforceable because, among other reasons, an instruction “not to pay” could not constitute a quasi-contract. Mbigi claims that the trial court erred in dismissing his wrongful foreclosure claim to the extent the claim was based on the alleged “quasi-new agreement.”

OCGA § 13-4-4 provides:

Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.

Under the statute, the parties must not only depart from the terms of the contract, but must also “pay or receive money under such departure.” OCGA § 13-4-4. Thus, there could be no departure from the terms of the contract for purposes of OCGA § 13-4-4 if, as alleged, Mbigi complied with Wells Fargo’s instruction not to make payments on the loan. See Salahat v. Fed. Deposit Ins. Corp., 298 Ga. App. 624, 628 (3) (680 SE2d 638) (2009) (finding no mutual departure under OCGA § 13-4-4 where debtor ceased making payments after the Bank promised the debtor the “loan would be reworked”); Gibson v. Gainesville Bank & Trust, 226 Ga. App. 679, 681 (487 SE2d 460) (1997) (“While a quasi-new agreement may arise where the parties mutually depart from the terms of an executory contract, to support such a departure there must be some evidence that money was paid or received under such departure.”) (citations omitted). The trial court did not err in concluding that, within the framework of the complaint, Mbigi’s assertion that the parties to the loan had entered into a “quasi-contract” did not state any basis for a wrongful foreclosure claim.

2. Mbigi also asserted a claim against Wells Fargo for violation of the Georgia RICO statute. To establish “a civil RICO claim, [Mbigi] is required to show by a preponderance of the evidence that [Wells Fargo] violated the RICO statute, OCGA § 16-14-4, that [he] has suffered injury, and that [Wells Fargo’s] violation of the RICO statute was the proximate cause of the injury.” (Citations omitted.) Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 109 (2) (b) (734 SE2d 883) (2012). To demonstrate a violation of OCGA § 16-14-4, Mbigi must “show an injury by a pattern of racketeering activity. A pattern requires at least two interrelated predicate offenses.” (Citations omitted.) Brown v. Freedman, 222 Ga. App. 213, 217 (3) (474 SE2d 73) (1996).

Mbigi identified seven different acts or omissions which, he contended, constituted residential mortgage fraud and were part of a fraudulent scheme to wrongfully foreclose on his home. Mbigi also claimed that Wells Fargo committed an additional predicate act by stealing the equity in his home through the wrongful foreclosure. The trial court found that Mbigi’s allegations could not form the basis of a RICO claim because Mbigi “has not demonstrated that Wells Fargo acted improperly.” The trial court further concluded that the acts alleged by Mbigi could not constitute a pattern of racketeering activity because the acts arose from the same transaction. Mbigi contends that the trial court erred in failing to consider whether his allegations could form the basis of a RICO claim, and that two acts taken in furtherance of one transaction is sufficient to show a pattern of racketeering activity.

Under OCGA § 16-14-3 (8) (A) (2014), to constitute a pattern of racketeering activity, the acts of racketeering must be taken “in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics[.]” OCGA § 16-14-3 (8) (A) (2014). The statute was amended in 2001 to provide the acts be taken “in furtherance of one or more incidents, schemes, or transactions,” (emphasis supplied) and so we cannot agree with the trial court that, if the alleged predicate acts were taken in furtherance of one transaction, then Mbigi’s RICO claim must necessarily fail. See Ga. L. 2001, p. 858, § 1. Compare Cobb v. Kennon Realty Svcs., 191 Ga. App. 740, 741-742 (2) (382 SE2d 697) (1989) (Trial court correctly granted summary judgment as appellant failed to allege any pattern of racketeering activity in his complaint, and the evidence submitted concerned one extended transaction between appellant and appellees.).

Further, theft by deception and residential mortgage fraud, if shown, would constitute RICO predicate acts. See OCGA § 16-14-3 (9) (A) (ix) (2014); OCGA § 16-14-3 (9) (A) (xl) (2014). Wells Fargo does not contest that the alleged act of theft could be a predicate act. Wells Fargo argues, however, that five of the acts alleged to be residential mortgage fraud are not crimes for purposes of OCGA § 16-8-102 and that the other two acts, which involved allegations of misrepresentations and omissions that must have occurred at or before the loan closing in 2007, were too remote to be part of a pattern of racketeering activity for purposes of OCGA § 16-14-3 (8) (A) (2014).

Pretermitting whether Wells Fargo is correct that some of the predicate acts alleged by Mbigi could not constitute residential mortgage fraud for purposes of OCGA § 16-8-102, one of the alleged predicate acts is that Wells Fargo filed the deed under power in the Gwinnett County records with at least one false statement. Wells Fargo contends that the recording of the deed under power, even if the deed contained a false statement, could not have been done with the intent to defraud Mbigi because his interest in the property had been foreclosed upon before the deed was filed.

Aperson commits residential mortgage fraud when, as pertinent here, such person, “with the intent to defraud,” “[f]iles or causes to be filed with the official registrar of deeds of any county of this state any document such person knows to contain a deliberate misstatement, misrepresentation, or omission.” OCGA § 16-8-102 (5). To “defraud,” in its ordinary meaning, is to “[t]o deprive of some right, interest, or property by a deceitful device; to cheat; to overreach.” Berry v. State, 153 Ga. 169, 174 (111 SE 669) (1922). Adeed under power is required to be filed following foreclosure and, if certain recitations are contained therein, will serve to protect the validity of title of subsequent purchasers in good faith. See OCGA §§ 44-14-160 (a); 44-14-162.4. As the recording of the deed under power could have deprived Mbigi of a valuable interest, and therefore defrauded him, the complaint does not show with certainty that Mbigi would not be able to show that the recording of the deed under power was an act of residential mortgage fraud. Accordingly, as Mbigi’s complaint alleges that he was injured by at least two predicate acts which could constitute a pattern of racketeering activity, Wells Fargo does not show that Mbigi “could not possibly introduce evidence within the framework of the complaint” sufficient to grant relief on the RICO claim. (Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. at 525 (1). It follows that the trial court erred in dismissing Mbigi’s RICO claim.

3. Mbigi contends that the trial court erred in dismissing his claims of fraudulent and negligent misrepresentation. Mbigi asserted in his complaint that Wells Fargo made false statements which induced Mbigi into defaulting on the loan, and that he reasonably relied thereon when he stopped making loan payments. Wells Fargo argued below that Mbigi’s fraud and negligent misrepresentation claims were barred by the statute of limitation because they arose from a statement made by Wells Fargo in December 2008, and that the four-year statutory period of limitation ran before Mbigi asserted the claims in 2014. The trial court agreed and dismissed the two counts. On appeal, as he did below, Mbigi argues that he did not suffer harm for which he could recover damages until his home was foreclosed upon in June 2014, and that, as a consequence, the claims accrued within the time allowed under the statute of limitation.

A four-year statute of limitation applies to actions for fraud and negligent misrepresentation. See OCGA § 9-3-31; Willis v. City of Atlanta, 265 Ga. App. 640, 643 (595 SE2d 339) (2004); Shapiro v. Southern Can Co., 185 Ga. App. 677, 677-678 (365 SE2d 518) (1988). Further,

[i]t has been long recognized and is well established that a statute of limitation begins to run on the date a cause of action on a claim accrues. In other words, the period within which a suit may be brought is measured from the date upon which the plaintiff could have successfully maintained the action.

(Citations omitted.) Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805 (1) (273 SE2d 16) (1980). See Colormatch Exteriors v. Hickey, 275 Ga. 249, 251 (1) (569 SE2d 495) (2002) (“The true test to determine when a cause of action accrues is to ascertain the time when the plaintiff could first have maintained his or her action to a successful result.”) (citation and punctuation omitted).

Nevertheless, “[t]o establish a cause of action for fraud, a plaintiff must show that actual damages, not simply nominal damages, flowed from the fraud alleged.” Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 344 (2) (348 SE2d 628) (1986). And, as to negligent misrepresentation, “in a claim for economic injury sustained due to reliance upon false information negligently provided by a defendant, the statute of limitation begins to run when the plaintiff suffers pecuniary loss with certainty, and not as a matter of pure speculation.” Hardaway Co. v. Parsons, Brinckerhoff, Quade & Doug-las, 267 Ga. 424, 428 (1) (479 SE2d 727) (1997). The complaint does not show that Mbigi was necessarily damaged in December 2008, at the time of the allegedly false representation, such that he could have successfully maintained an action for fraud or negligent misrepresentation at that time. See id. at 427 (1) (finding that “until it suffered economic loss, [appellant] did not even have a claim for negligent misrepresentation”). It follows that the complaint did not show with certainty that Mbigi’s claims for fraud and negligent misrepresentation were barred by the statute of limitation, and the trial court erred when it dismissed those claims. See, e.g., Jankowski v. Taylor,; Bishop & Lee, 246 Ga. at 805 (1) (“Georgia recognizes the accrual of a right of action for a tort when there is a violation of a specific duty accompanied with damage.”) (citations omitted).

4. Mbigi claims that the trial court erred in dismissing his claim for intentional infliction of emotional distress. The elements of the tort are: “(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; [and] (4) The emotional distress must be severe.” (Citation and punctuation omitted.) Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985). See Odem v. Pace Academy, 235 Ga. App. 648, 654 (2) (510 SE2d 326) (1998) (accord).

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been extreme and outrageous.

(Punctuation and footnote omitted.) Jarrard v. United Parcel Svc., 242 Ga. App. 58, 61 (529 SE2d 144) (2000). “Whether the alleged conduct is sufficiently extreme or outrageous is a question of law for the trial court.” (Punctuation and footnote omitted.) Kirkland v. Earth Fare, Inc., 289 Ga. App. 819, 823 (4) (658 SE2d 433) (2008).

An intentional wrongful foreclosure may be the basis for an action for intentional infliction of emotional distress. See Blue View Corp. v. Bell, 298 Ga. App. 277, 279 (1) (679 SE2d 739) (2009); DeGolyer v. Green Tree Servicing, 291 Ga. App. 444, 449-450 (4) (662 SE2d 141) (2008). Wells Fargo contends that the circumstances alleged by the complaint are nevertheless not sufficiently outrageous and extreme. We disagree. Mhigi could show, within the framework of the complaint, not only that Wells Fargo wrongfully foreclosed on his home, but that it engineered a default on the loan by instructing Mbigi not to pay, lied about why it could not accept payment, and improperly refused to accept Mbigi’s attempt to pay the loan in full. See Webb v. Bank of America, 328 Ga. App. 62, 62-63 (761 SE2d 485) (2014) (allegations in the complaint, which included that lender intentionally refused to accept loan payments and intentionally breached the loan modification agreement could, within the framework of the complaint, warrant a grant of the relief sought, which included wrongful foreclosure and intentional infliction of emotional distress); DeGolyer, 291 Ga. App. at 448-449 (4) (evidence supported claim for intentional infliction of emotional distress where party-proceeded with foreclosure and sale after being told it was foreclosing on the wrong tract of property); Blanton v. Duru, 247 Ga. App. 175, 178-179 (5) (543 SE2d 448) (2000) (trial court’s award of damages for intentional infliction of emotional distress affirmed, where foreclosure proceedings were instituted under a security deed that the court had ordered to be canceled). Compare James v. Bank of America, N.A., 332 Ga. App. 365, 368 (3) (772 SE2d 812) (2015) (physical precedent only) (failure to provide proper notice of foreclosure was not extreme or outrageous conduct); Racette v. Bank of America, N.A., 318 Ga. App. 171, 174 (1) (733 SE2d 457) (2012) (allegation that appellees conducted a foreclosure sale despite knowledge of inaccuracies in published foreclosure notice was not extreme or outrageous conduct). Accordingly, we conclude that the trial court erred in dismissing Mbigi’s claim for intentional infliction of emotional distress.

5. Mbigi further contends that the trial court erred in dismissing his claim for breach of duty of good faith and fair dealing. “This implied duty requires both parties to a contract to perform their promises and provide such cooperation as is required for the other party’s performance.” (Citation and punctuation omitted.) Brown v. Freedman, 222 Ga. App. 213, 216 (2) (474 SE2d 73) (1996).

The trial court found that Mbigi failed to plead or otherwise demonstrate a breach of contract by Wells Fargo, and so dismissed his claim of breach of the implied duty of good faith and fair dealing. Although “[e]very contract implies a covenant of good faith and fair dealing in tbe contract’s performance and enforcement, . . . the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability.” (Punctuation and footnote omitted.) OnBrand Media v. Codex Consulting, Inc., 301 Ga. App. 141, 147 (2) (c) (687 SE2d 168) (2009). Thus,

to prevail on [his] claim for breach of the duty of good faith and fair dealing, [Mbigi] must establish that [Wells Fargo] owed a contractual obligation. . . . And to prevail on [his] claim for breach of an implied duty of good faith and fair dealing, [Mbigi] must demonstrate that [Wells Fargo] somehow violated ... an implied duty.

Id.

In this case, the complaint alleged that Wells Fargo was a party to the security deed, and, with respect to the breach of duty of good faith and fair dealing, that Wells Fargo’s acts “reflect a failure by Wells to perform the promises required by the contract, and to provide such cooperation as was required for [Mbigi] to perform under the contract.” Thus, Mbigi’s claim is not independent of a contractual obligation by Wells Fargo. See generally Brown, 222 Ga. App. at 216 (2) (finding that trial court did not err in denying claim for breach of duty of good faith and fair dealing in performance and enforcement of security deed). And a lender’s alleged bad faith in inducing a default under a security deed may constitute a breach of its implied duty of good faith and fair dealing. See West v. Koufman, 259 Ga. 505, 506 (384 SE2d 664) (1989) (where security deed provided for a default thereunder if liens were filed against the property and not removed within 30 days, grantee’s conduct in soliciting third parties to file false liens against the property, if proved, could constitute breach of the duty of good faith and fair dealing). Accordingly, as the complaint does not show with certainty that Mbigi would not be entitled to relief under any state of provable facts asserted in support thereof, we find that the trial court erred in dismissing Mbigi’s claim for breach of the implied duty of good faith and fair dealing.

6. Lastly, Mbigi contends that the trial court erred in dismissing his claim for promissory estoppel. The elements of promissory estoppel are: “the defendant made a promise upon which he reasonably should have expected the plaintiff to rely, the plaintiff relied on the promise to his detriment, and injustice can be avoided only by enforcing the promise because the plaintiff forwent a valuable right.” (Citation omitted.) Thompson v. Floyd, 310 Ga. App. 674, 682 (3) (713 SE2d 883) (2011). See OCGA § 13-3-44.

The complaint alleges that in 2007, in response to Mbigi’s inquiry concerning his mortgage balance, Wells Fargo advised him that it “was going to investigate and modify the loan.” Wells Fargo thereafter directed Mbigi in 2008 and 2010 to cease making mortgage payments until the loan was modified, and told him, in or after 2011, that the loan “had to be modified before he could resume payment.” Notwithstanding Mbigi’s subsequent inquiries and his repeated submission of modifications proposals, Wells Fargo never processed his loan for a modification.

The trial court concluded that because Mbigi had alleged that Wells Fargo promised to provide financing in the future, but did not specify any terms, the promise was too indefinite to be enforced. “Promissory estoppel does not . . . apply to vague or indefinite promises, or promises of uncertain duration.” (Citation omitted.) Ga. Investments Intl., Inc. v. Branch Banking and Trust Co., 305 Ga. App. 673, 675 (1) (700 SE2d 662) (2010). The trial court also found that the promissory estoppel claim failed because Mbigi sought damages rather than enforcement of the alleged promise.

In his complaint, Mbigi gave notice that he contended Wells Fargo made promises to modify the loan through at least 2011, and that he relied on those promises to his detriment by complying with Wells Fargo’s directives to withhold payments on the loan. Mbigi was not required to set forth every material term of the alleged promises in the complaint to avoid dismissal of his claim. See, e.g., Scott v. Scott, 311 Ga. App. 726, 729 (716 SE2d 809) (2011) (trial court erred in concluding that plaintiff was required to allege additional facts sufficient to support a claim for change of custody from parent to grandparent where petition gave fair notice of the claim). See also Austin, 294 Ga. at 775 (At the motion to dismiss stage, it did “not matter that the existence of [facts that would be required to show a violation of ministerial duty, the pivotal determination in the case] is unlikely.”).

Nor does the complaint show that Mbigi would not be entitled to any relief on the claim for promissory estoppel. Mbigi prayed for both damages and that “he be allowed to complete the loan modification process.” Pretermitting whether the alleged promise to modify the loan could be enforced after foreclosure, Mbigi was not precluded from recovering damages. “Under [a] promissory estoppel theory, [plaintiff] may recover those damages as are equitable and necessary to prevent injustice from occurring.” (Punctuation and footnote omitted.) Hendon Properties v. Cinema Dev., LLC, 275 Ga. App. 434, 441 (3) (620 SE2d 644) (2005). See OCGA § 13-3-44 (“The remedy granted for breach may be limited as justice requires.”). As Wells Fargo does not show that Mbigi could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief on his claim for promissory estoppel, the trial court erred in dismissing the claim.

Decided March 22, 2016.

Lovemore Mbigi, pro se.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper, Dylan W. Howard, Daniel P. Moore, for appellee.

Judgment affirmed in part and reversed in part.

McFadden, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       See OCGA § 16-14-1 et seq.

       Wells Fargo is the successor by merger to the original lender, World Savings Bank, F.S.B.

       We note that a departure or modification from a contract can be accomplished other than by the exchange of money; however, the breach of duty alleged by the complaint arises from Wells Fargo’s failure to take the actions required by OCGA § 13-4-4 before he could he held to the strict terms of the loan. See Turem v. Sinowski & Jones, 195 Ga. App. 829, 830 (1) (395 SE2d 60) (1990) (OCGA § 13-4-4 “sets forth a plain statutory consequence of the receipt or payment of money under a departure,” but does not supplant other legal circumstances which would constitute a modification or novation).

       Compare Curl v. Federal Sav. & Loan Assn., 241 Ga. 29 (244 SE2d 812) (1978) (Where lender had accepted late and irregular payments for several years, preferring to contact borrower and convince her to make up the defaults, at least in part, and where lender failed to give notice of intention to insist on compliance with the exact terms of the agreement prior to accelerating the loan, lender failed to show that the borrower’s complaint lacked any essential element of a cause of action under OCGA § 13-4-4.).

       This provision was renumbered as OCGA § 16-14-3 (4) (A), effective July 1,2015. See Ga. L. 2015, p. 693, § 2-25.

       To the extent that Wells Fargo suggests that OCGA § 16-14-3 (8) (A) (2014) requires that the last predicate act be committed within four years of the filing of the complaint, that is not what the statute provides. Compare OCGA § 16-14-8 (2014) (civil action “may be commenced up until five years after the conduct in violation of a provision of this chapter terminates or the cause of action accrues.”). However, its contention that Mbigi could not show any acts of residential mortgage fraud following the closing of the loan in 2007 is relevant. For purposes of OCGA § 16-14-3 (8) (A) (2014), apattern of racketeering activity requires “[e]ngaging in at least two acts of racketeering activity ... provided... that the last of such acts occurred within four years . . . after the commission of a prior act of racketeering activity[.]” (Emphasis supplied.) Thus, an act of racketeering activity in 2014 could not he considered the last act of a pattern of racketeering activity if the prior act of racketeering activity occurred in 2007.

       See OCGA § 1-3-1 (b) (Other than words of art or words connected with a particular trade or subject matter, “[i]n all interpretations of statutes, the ordinary signification shall be applied to all words [.]”).

       Mbigi’s complaint also alleged that a 2010 class action settlement agreement entered in the United States District Court for the Northern District of California regarding the “Option ARM” loans, such as the loan which had been made to Mligi, “required Wells to offer [him] a loan modification.” In his reply brief, Mbigi concedes that he cannot base a promissory estoppel claim on account of any loan modification procedure contemplated thereby; however, the complaint does not show that the promises on which Mbigi relied were necessarily related to the settlement agreement.

       See also Funderburk v. Fannie Mae, 2014 U. S. Dist. LEXIS 41689 (II) (E) (N.D. Ga. 2014) (claim that agent for defendant promised to modify loan if she made a payment on her account, then denied the modification and conducted foreclosure proceedings, supported a claim for promissory estoppel under Georgia law).

       See also Insilco Corp. v. First Nat. Bank, 248 Ga. 322, 323 (2) (283 SE2d 262) (1981) (trial court erred in dismissing complaint as it did not show with certainty that appellant would not be entitled to relief under the doctrine of promissory estoppel; the complaint prayed for damages on account of appellant’s reliance on appellee’s promises).


author: Boggs, Judge.

text:
    A15A2104.
    LINDSAY v. THE STATE.
    (785 SE2d 6)
   Boggs, Judge.

Following a bench trial, Mark Lindsay appeals from his convictions for seven counts of theft by receiving stolen property. He contends that insufficient evidence supports each of his convictions, that his constitutional right to a speedy trial was violated, that he received ineffective assistance of counsel, and that the trial court erred in its sentence. Based upon the State’s failure to prove an essential element of the crimes it charged Lindsay with committing, we reverse.

The State indicted Lindsay for theft by receiving various tangible goods that were purchased with funds embezzled from the victim by Lindsay’s mistiess. It is undisputed from the evidence presented at trial that the goods given to Lindsay were not taken from the victim. Instead, his mistress purchased the items with funds she had embezzled and then gave the items to Lindsay. The State presented evidence that Lindsay knew the items had been purchased with the employer’s funds.

1. Lindsay asserts that his conduct in receiving goods purchased with stolen funds cannot satisfy the “receiving stolen property” element of OCGA § 16-8-7 (a). As the trial court noted below, this is an issue of first impression in Georgia. When considering this issue, we must bear in mind that “[w]here the violation of a statute is made criminal, it must be tested by the rule of strict construction applicable to criminal statutes.” (Citation and punctuation omitted.) Burmaster v. State, 233 Ga. 753, 755 (213 SE2d 650) (1975). “[I]n applying this rule the plain meaning of language must not be disregarded, but will be given full effect.” Cargile v. State, 194 Ga. 20, 23 (2) (20 SE2d 416) (1942). And “[w]hen a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused.” (Citation and punctuation omitted.) Frix v. State, 298 Ga. App. 538, 542-543 (1) (a) (680 SE2d 582) (2009).

OCGA § 16-8-7 (a) provides:

Aperson commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

In support of its argument that goods purchased with stolen funds qualify as stolen property, the State asserts that property traceable to stolen funds remains the property of the victim of the theft through equity. See OCGA § 53-12-132 (a) (creation of constructive trust); First Nat. Bank of Cartersville v. Hill, 412 FSupp. 422, 425 (N.D. Ga. 1976) (it is a “general rule of common law that no title is acquired by an embezzler, but that such title remains in the victim, who is the beneficial owner of a constructive trust which is imposed on such monies or on property purchased with such money”). Compare Atlanta Classic Cars, Inc. v. Chih Hung USA Auto Corp., 209 Ga. App. 908, 910 (2) (439 SE2d 498) (1993) (no constructive trust imposed where defendant had no knowledge that party was converting another’s money by paying off amounts for the purchase of cars); see also OCGA § 23-1-14 (“When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss.”). In a case involving an indictment which alleged the wrong owner of stolen goods, we held that “[t]he technical quality of an owner’s interest need not be pursued in a prosecution for theft by receiving, because ownership is important only in the sense of whether the goods were owned by someone other than the accused.” (Citation, punctuation and footnote omitted.) Greeson v. State, 253 Ga.App. 161, 165 (4) (558 SE2d 749) (2002).

Decided March 22, 2016

Joshua P. Weiss, for appellant.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

But whether the owner may have had an equitable interest in the goods purchased by the mistress with the embezzled funds begs the question of whether these particular goods satisfy the “stolen property” element of OCGA § 16-8-7 under a plain reading of the statute. After carefully considering this issue, we conclude that a common sense reading of the plain language of the statute requires the State to prove that the tangible goods received by the defendant were the same goods that were taken from the owner. See Causey v. State, 139 Ga.App. 499, 500(1) (229 SE2d 1) (1976) (state must present evidence sufficiently identifying goods in defendant’s possession as same goods that were stolen). “The unambiguous words of a criminal statute are not to be altered by judicial construction so as to punish one not otherwise within its reach, however deserving of punishment his conduct may seem.” (Citation omitted.) Waldroup v. State, 198 Ga. 144, 145 (30 SE2d 896) (1944). Accordingly, we reverse Lindsay’s convictions for theft by receiving stolen property.

2. Our holding in Division 1 renders Lindsay’s remaining enumerations of error moot.

Judgment reversed.

Doyle, C. J., and Peterson, J., concur.

       Lindsay was acquitted on an eighth count.

       The State did not charge Lindsay with theft by taking as a party to a crime or conspiracy. See OCGA §§ 16-2-20 (party to a crime), 16-4-8 (conspiracy), 16-8-2 (theft by taking).


author: BARNES, Presiding Judge.

text:
    A15A2211.
    STEPHENS v. KMART CORPORATION.
    (785 SE2d 21)
   BARNES, Presiding Judge.

Nadine Stephens appeals from the trial court’s grant of summary judgment to the Kmart Corporation on Stephens’ personal injury complaint for damages after she was injured when she fell stepping off the curb of a Kmart store. Because an issue of fact exists as to whether Stephens exercised ordinary care for her own safety, we reverse.

We review a grant of summary judgment de novo and view the evidence in a light most favorable to the nonmoving party. Summary judgment should be granted when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. If there is no evidence to support at least one essential element of the plaintiff’s case, the defendant is entitled to summary judgment.

(Footnotes omitted.) Nemeth v. RREEF America LLC, 283 Ga. App. 795, 796 (643 SE2d 283) (2007).

So viewed, the record demonstrates that on March 12, 2011, Stephens and her husband went to a Kmart store located in Tifton to make a payment on items that were being held in layaway at the store. Stephens had visited the store on two or three other occasions to make payments, but would make her payment and leave. On this occasion, while her husband went inside the store, Stephens remained outside to browse through several clothing racks located on the sidewalk in front of the store. As she was looking at the clothes, Stephens navigated around a column located on the sidewalk to get to another rack of clothes and her foot stepped off the curb, causing her to fall on the asphalt. Stephens testified that the clothes were hanging down from the racks onto the sidewalk, the racks were lined up bumper to bumper, and the racks were “right up against the curb,” with no space between the racks and the curb. Stephens fractured her C-6 vertebra in the fall.

A manager on duty the day of the fall took Stephens’ statement and photographed the scene and also reported the incident to Kmart. He further testified that it was his routine practice to initial and date the photographs before sending them and the report to Kmart’s insurance carrier. The manager identified an exhibit introduced at his deposition as a photograph taken the day of Stephens’ accident. However, the photograph did not contain a date or his initials. According to the manager, he did not see a problem with the way the racks were set up on the sidewalk, but he also testified that Stephens had not complained about how the racks were set up or mentioned that she had fallen because her view was obstructed by the racks being placed too close to the curb. A Kmart corporate representative testified that per- their sidewalk sale policies and procedures, “we make sure there’s a 36-inch clearance between rack to rack or whether its pallet to pallet outside. We make sure that customers are able to maneuver from each side of the pallet or whatever we may have displayed outside.”

Following a hearing, the trial court granted Kmart’s motion for summary judgment based on the “entire record, including briefs, applicable law, and oral argument.” On appeal, Stephens essentially contends that the trial court erred in granting summary judgment to Kmart because of remaining disputed material facts.

1. Stephens first asserts that the trial court impermissibly traversed the province of the jury and based its grant of summary judgment on “the fact-specific nature of the claims.” But the quoted phrase is from a letter the trial court sent to the parties in which the trial court noted that, “[t]his is a very close call. Case law is all over the place because of the fact-specific nature of these claims. I’m granting Defendant Kmart’s motion.”

Even assuming, without deciding, that the letter, which does not contain a stamped file date, is part of the record below, we conduct a de novo review on appeal from a grant of summary judgment, and thus Stephens cannot show that the trial court’s statement reflects any action which harmed her. See McClain v. George, 267 Ga. App. 851, 854 (2) (600 SE2d 837) (2004) (failure to show harm vitiates any possible error).

2. Stephens also contends that the trial court erred in granting Kmart summary judgment because there were material issues of fact as to whether the curb was obstructed by the racks and clothing on the sidewalk. We agree.

[T]he “routine” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed. . . . [A]n invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.... [A]n invitee presents some evidence of the exercise of reasonable care for personal safety when the invitee explains that something in the control of the owner/occupier and of such a nature that the owner/occupier knew or should have known of its distractive quality caused him not to look at the site of the hazard.

(Emphasis supplied.) Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997). “Astatic condition is one that does not change and is dangerous only if someone fails to see it and walks into it.” Thomas v. Executive Committee of the Baptist Convention of Ga., 262 Ga. App. 315, 319 (c) (585 SE2d 217) (2003). Aperson is presumed to have knowledge of such a defect “when that person has successfully negotiated the alleged dangerous condition on a previous occasion.” (Punctuation andfootnote omitted.) Nemeth, 283 Ga. App. at 797 (1). Here, “the issue is whether the factual evidence is plain, palpable, and undisputed that nothing obstructed [Stephens’] ability to see the [drop off to the curb] and thus the defect was or should have been visible to her.” Thomas, 262 Ga. App. at 319 (c). Notably, “[i]tis ... [Stephens’] knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which plaintiff observes and avoids.” (Punctuation and footnote omitted.) Jackson v. Waffle House, 245 Ga. App. 371, 374 (2) (537 SE2d 188) (2000).

Stephens maintains that, even with the general knowledge that there was a drop off from the sidewalk to the curb, it was impossible to determine where the drop off was because of the position of the racks and because the clothes were hanging down to the sidewalk. In Robinson, the Supreme Court rejected the contention that an invitee must continuously survey the floor for defects. Robinson v. Kroger Co., supra at 742 (1). Thus, “an invitee need not look continuously at the ground for defects because the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.” (Punctuation and footnote omitted.) Christensen v. Overseas Partners Capital, 249 Ga. App. 827, 830 (2) (549 SE2d 784) (2001).

Stephens described the clothing racks as flush against the edge of the curb with no space between the clothing racks and the curb, and also stated she could not see where the sidewalk ended. Moreover, although Kmart’s corporate representative testified about the policies and procedures regarding the placement of displays during a sidewalk sale, there is no evidence that the clothing racks’ placement on the day of Stephens’ fall complied with its policy. Likewise, the store manager stated that he took a photograph of the scene and submitted an incident report to the insurance carrier, but the photograph introduced as an exhibit to his deposition is not signed or dated as he testified was customary.

Decided March 22, 2016.

The Kirbo Law Firm, Clifford M. Kirbo, for appellant.

Strawinski & Stout, James S. Strawinski, Jay M. O’Brien, for appellee.

Accordingly,

there is a question of fact as to whether the configuration of the merchandise display by [Kmart] was such that the injury sustained was proximately caused by its negligence and whether [Stephens] exercised reasonable care for her own safety. Therefore, the trial court erred in granting summary judgment to [Kmart].

Myers v. Harris, 257 Ga. App. 286, 288 (1) (570 SE2d 600) (2002) (reversing summary judgment where plaintiff testified that furniture in showroom camouflaged the fact floor dropped off onto the ramp below, even where plaintiff had previously negotiated the ramp up to the raised floor).

Judgment reversed.

McMillian, J., concurs. Ray, J., concurs fully in Division 2 and in the judgment as to Division 1.

       The paper the photograph is printed on contains the date “6/16/2011,” but there is no indication in the record what the date represents.


text:
    A15A2090.
    RZI PROPERTIES, LLC v. SOUTHERN REO ASSOCIATES, LLC.
    (782 SE2d 731)
   Boggs, Judge.

The buyer, RZI Properties, LLC (“RZI”), sued a brokerage firm, Southern REO Associates, LLC (“REO”), after SunTrust Mortgage, Inc., rejected its offer to purchase a parcel of real property. The trial court granted REO’s motion for summary judgment, concluding that there is no evidence that it breached any duty to perform ministerial acts with reasonable care. Because an issue of fact remains regarding REO’s exercise of reasonable care in the performance of its duties, we reverse.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review the trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.

(Citation and punctuation omitted.) Swanstrom v. Wells Fargo Bank, 325 Ga. App. 743 (754 SE2d 786) (2014).

Construed in favor of RZI, the evidence showed that RZI desired to purchase property owned by SunTrust Mortgage (“the seller”). RZI’s principal member, Ehsan Razavi, asked Phetfamone Senesombath (“Pat”), a broker with REO, to broker the deal. RZI owned other, contiguous lots and desired to purchase this fourth lot to create an assemblage. RZI and Pat entered into a verbal agreement, and Razavi informed her that she would receive a commission of approximately $1,500 “for performing the simple tasks related to the closing.” His instructions to her were “to perform or provide all necessary paperwork as requested by the Seller [,] ... to promptly notify [him] if anything was needed from [him], and to timely notify [him] of any and all communications from the Seller.”

After some negotiation, in early January 2012, RZI submitted an offer to purchase the property. The events that occurred thereafter are as follows:

January 4 The seller’s listing broker sent Pat an e-mail (“the preferred form for offers”) with “BANK ADDENDUMS FOR MEMORIAL DRIVE LOT #2” in the subject line, and noting that “ALL OFFERS ARE SUBJECT TO FINAL CORPORATE APPROVAL.” The e-mail listed a purchase price of $5,000, requested that RZI provide a complete package of information within 24 hours that included a purchase and sales agreement with certain terms, a copy of the earnest money check made out to the seller’s closing attorney, and an “[u]pdated proof of funds within the last 30 days.” The e-mail also instructed that the earnest money check be mailed to a particular address within 48 hours. Pat forwarded this e-mail to Razavi within an hour of receiving it (and Razavi acknowledged that he did in fact receive it), adding a message to him that, “[w]e have accepted contract for $5,000. Please read below and let me know. Thanks!”
January 6 Razavi provided Pat with the packet of information requested by the seller’s broker, but the proof of funds he included was not dated within the past 30 days. Pat nevertheless submitted the packet of information to . the seller’s broker the same day.
January 10 Between January 10 and January 12, several e-mails were exchanged between Pat and the seller’s broker regarding receipt of the earnest money. Pat apparently sent the earnest money to the closing attorney instead of the seller’s broker as directed.
January 12 The seller’s broker sent Pat an e-mail message at 4:08 p.m.: “Contract was rejected because the proof of funds is over 30 days old. Please send updated proof of funds and the seller is now requesting an extension to the close date to 02/24/2012.1 need this back by 10:00 am!!” Pat forwarded this e-mail to Razavi the same day with the instruction to “Please read below.” Razavi deposed that he did not receive this e-mail from Pat until midday on January 13, and that he contacted Pat to inquire “as to what was going on because I thought we had a contract. Consequently, I believed there was no need for an updated proof of funds.” He told Pat that he would provide an updated proof of funds on Tuesday, January 17, 2012 (Monday, January 16, was a holiday). Pat responded to the e-mail from the seller’s broker: “Buyer is out of town right now. Is there any where that you can give time to get back in town to get you the update [proof of funds]?”
January 17 At 8:52 a.m., the seller’s broker e-mailed Pat: “Please advise on the updated [proof of funds] and extension. If it is not in today the seller are [sic] going to move on & your offer will be rejected.” Pat responded at 9:02 a.m.: “Buyer accepts the extension on the closing date and getting the update [d] [proof of funds], but he will not be back in town until tomorrow.” At 9:36 a.m., the seller’s broker responded: “Seller is moving on. Please advise we need by end of business today.” At 10:17 a.m., Pat replied: “We did all we can, but the Buyer will not be in town until tomorrow. He is banking with small bank and cannot find one where he is right now. He can get you the [proof of funds] tomorrow. If the Seller wants to move on, there is nothing we can do. If that is what the Seller wants to do, should I call the attorney’s office to let them know the contract is being rejected?” Razavi averred that he faxed Pat an updated proof of funds at approximately 11:00 a.m., but that he did not receive any communication from her and was not told about the close of business day “ ‘drop dead’ e-mail from the Seller’s agent.” At 3:02 p.m., the seller’s broker e-mailed Pat: “Your offer has been rejected. Property is going back on the market. Sorry we couldn’t make this work.” At 4:49 p.m., Pat e-mailed the seller’s broker: “Is the property back on the market today? My Buyer wants to present another offer with an update [d] proof of funds tomorrow.” The seller’s broker responded minutes later: “You can resubmit an offer, but not until I have the updated proof of funds.”
January 18 Razavi provided Pat with an updated proof of funds and Pat submitted another offer to purchase the property.
January 19 At 8:56 a.m., the seller’s broker informed Pat that the seller had already accepted another offer. At 12:06 p.m., Pat forwarded to Razavi the January 17 e-mail from the seller’s broker informing her of the end of day deadline, with a message to Razavi, “Here you go!”

Razavi averred that had he been informed of the “January 17 ‘drop dead’ close of business deadline,” he “would have easily been able to comply with this deadline and provide an updated proof of funds to Pat.” He stated further that he had an updated proof of funds in his possession on January 17 and “could have easily re-sent it,” but he believed that he had an “ ‘accepted’ ” contract and that we were “ ‘good to go.’ ”

Under Georgia law, the relationship between real estate brokers and potential buyers of real estate is governed by the Brokerage Relationships in Real Estate Transactions Act (“BRRETA”). OCGA § 10-6A-letseq. The intent of BRRETA, as declared by the Georgia legislature, is to provide codification of the relationships between real estate brokers and consumers of brokerage services in order to prevent detrimental misunderstandings and misinterpretations of such relationships by both consumers and real estate brokers and thus promote and provide stability in the real estate market. OCGA § 10-6A-2 (a). In this regard, BRRETAprovides that, absent a written, signed agreement to the contrary, the duties and obligations imposed upon a real estate broker who performs brokerage services are limited to those set forth in the statute. OCGA § 10-6A-4 (a). More specifically, it provides that “[a] broker shall not be deemed to have a fiduciary relationship with any party or fiduciary obligations to any party but shall only be responsible for exercising reasonable care in the discharge of its specified duties as provided in this chapter and, in the case of a client, as specified in the brokerage engagement.”

(Punctuation and footnote omitted; emphasis supplied.) Harrouk v. Fierman, 291 Ga. App. 818, 820 (1) (662 SE2d 892) (2008). Because there was no written agreement between RZI and Pat, RZI was Pat’s “customer” as defined in OCGA § 10-6A-3 (8): “ ‘Customer’ means a person who is not being represented by a real estate broker in an agency capacity pursuant to a brokerage engagement but for whom a broker may perform ministerial acts in a real estate transaction pursuant to either a verbal or written agreement.” And Pat was therefore a “transaction broker” as defined in OCGA § 10-6A-3 (14):

[A] broker who has not entered into a client relationship with any of the parties to a particular real estate transaction and who performs only ministerial acts on behalf of one or more of the parties, but who is paid valuable consideration by one or more parties to the transaction pursuant to a verbal or written agreement for performing brokerage services.

The term “ministerial acts” is defined as “those acts described in Code Section 10-6A-14 and such other acts which do not require the exercise of the broker’s or the broker’s affiliated licensee’s professional judgment or skill.” OCGA § 10-6A-3 (12). Examples of ministerial acts that are “include [d] without limitation” are set forth in OCGA § 10-6A-14 (a).And OCGA § 10-6A-14(b) provides a list of the mandatory duties of a transactional broker. While not specifically enumerated among the examples of ministerial acts listed in subsection (a), RZI’s claim here, that Pat failed to timely communicate vital information concerning the status of its offer to purchase the property, is an act that did not require the exercise of Pat’s professional judgment or skill. Under this statutory framework then, we are required to determine if a genuine issue of fact exists regarding whether Pat exercised reasonable care in the discharge of a ministerial duty. See OCGA § 10-6A-4 (a).

RZI argues that it suffered damages due to Pat’s breach of the duty of reasonable care. It contends that it was Pat who caused the late delivery of the updated proof of funds. RZI asserts that not only did Pat fail to timely present the updated proof of funds, she also failed to send the earnest money to seller’s broker as requested, led RZI to believe that contract was “ ‘accepted’ ” and “ ‘everything was good,’ ” did not inform RZI of the final ultimatum until two days after it had expired, and sent an unauthorized response acquiescing in the seller “mov[ing] on.”

While RZI presents argument regarding various actions or in-actions of Pat that it believes resulted in the rejection of its offer, the undisputed facts show that the seller rejected the offer because RZI failed to timely submit an updated proof of funds. The only material issue of fact, then, is whether the failure to do so was due to Pat’s failure to exercise reasonable care in timely disclosing the final deadline for submission of the proof of funds. In this regard, Razavi averred that Pat did not promptly inform him of the January 13, 10:00 a.m. deadline “with a simple telephone call,” instead sending him an e-mail that he did not receive until the next day, and that she also failed to call him about the “January 17 ‘drop dead’ close of business deadline.” His deposition testimony establishes that he did have a telephone conversation with Pat at sometime after the 3:02 p.m. rejection of RZI’s offer on January 17: “I had to hurry up ... get back to Atlanta and then I believe in the meanwhile she was telling me that the seller . . . backed out of the deal... I was coming to get the updated proof of funds so I can go ahead and give it to [Pat] . . . either I e-mailed it or . . . faxed it.” And Pat deposed that she exchanged text messages with Razavi informing him that his offer was rejected on January 17, and that he told her he wanted to make another offer but “he couldn’t get the proof of funds to me right away so we had to wait.”

So while there is evidence that, on January 17, Pat communicated to Razavi that the seller had rejected his offer, there is no evidence that she informed him that the seller’s broker had again extended the deadline for submitting the updated proof of funds to the close of business that day. Pat deposed, however, that if anything was urgent, she would contact Razavi by telephone. The record before us therefore shows that a genuine issue of material fact remains regarding whether Pat exercised reasonable care in the discharge of the ministerial duty of timely informing Razavi of the deadlines set by the seller. Specifically, a question of fact exists as to whether she timely informed Razavi of the January 13 deadline, and whether she notified him at all that the seller had given him yet another deadline on January 17 to submit the updated proof of funds. See, e.g., Davis v. Silvers, 295 Ga. App. 103, 106-107 (670 SE2d 805) (2008) (issue of fact whether broker breached duty to disclose adverse material facts affecting property); Ikola v. Schoene, 264 Ga. App. 338, 341-342 (1) (590 SE2d 750) (2003) (same).

Decided February 24, 2016

Reconsideration denied March 23, 2016.

Johnson & Ward, Stanley E. Kreimer, Jr.; Lawrence G. Morton, for appellant.

Freeman, Mathis & Gary, Neil L. Wilcove, for appellee.

The trial court therefore erred in granting REO’s motion for summary judgment.

Judgment reversed.

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

       RZI also sued SunTrust Mortgage, Inc., but later dismissed the suit without prejudice.

       In his deposition, however, Razavi stated that he faxed or e-mailed it to Pat, “Either it was on the 17th. Sometime[ ] around, you know, that timeframe,” but later admitted, “I believe she didn’t receive it because what happened was probably I faxed it and also I took a picture of it on my iPhone and I resend [sic] it to her, you know, again.”

       We note that this list provides that the broker shall perform duties timely: “timely present all offers,” “timely account for all money,” and “timely disclose” certain facts. OCGA § 10-6A-14 (b).

       The trial court found in its order that the seller’s “agent informed Pat via e-mail that RZI’s offer had been rejected and the Property was going back on the market, and Pat forwarded that e-mail to Razavi the same day,” but the record does not support the finding that she forwarded the e-mail.

       We do not address whether RZI failed to show damages as the trial court’s order shows that it made no ruling on the post-discovery evidence presented on the issue.


author: Rickman, Judge.

text:
    A15A1716.
    WARREN v. SMITH.
    (785 SE2d 25)
   Rickman, Judge.

Mark Warren appeals from the final order entered on a complaint he filed against Melissa Smith, seeking a modification of custody of their minor child and a modification of child support. Pursuant to a judgment and decree of divorce, Warren and Smith were awarded joint legal custody and joint physical custody of the child. Warren challenges the trial court’s failure to find sufficient grounds to warrant a change in custody and to award him primary physical custody of the child, and he contends that the trial court abused its discretion by failing to make specific findings of fact and conclusions of law to support its judgment after he had requested the court to do so. For the following reasons, we vacate the judgment to the extent that it denies Warren’s request for modification of custody, and we remand the case to the trial court.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child.

(Citations and punctuation omitted.) Lynch v. Horton, 302 Ga. App. 597, 600 (4) (692 SE2d 34) (2010); see Daniel v. Daniel, 250 Ga. App. 482, 483-484 (2) (552 SE2d 479) (2001) (once a divorce decree has been approved and a permanent child custody award has been entered, the test for use by the trial court in change of custody suits is whether there has been a change of condition affecting the welfare of the child). The trial court may consider a variety of relevant factors in determining the best interest of the child. See OCGA § 19-9-3 (a) (3).

At the end of the bench trial in this case, Warren’s counsel stated on the record that he “would like to ask before the evidence closes that there be specific findings of fact and conclusions in this case. I don’t think I have ever asked for that before but I think this would be good.” The trial court replied: “Let’s hope this is the last time. It just means I have to work harder but you have the right to ask.”

The trial court, in its order, failed to make any findings of fact and conclusions of law concerning Warren’s request for modification of custody. In that regard, the court merely determined: “The Court does not find sufficient grounds warranting a change in custody[.]” In a footnote, the court stated that Warren had “requested that the court make written findings of fact, but subsequently withdrew that request by e-mail message received January 27, 2015, a copy of which is attached.” But no such e-mail was attached to the order, we found no such e-mail in our review of the appellate record, and in his appeal brief, Warren denies having withdrawn his request for findings of fact and conclusions of law.

Pursuant to Chapter 9 of Title 19 of the Official Code of Georgia which governs child custody proceedings, in all cases in which, the custody of any child is at issue between the parents, the following pertinently applies:

If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge’s decision in making an award of custody including any relevant factor relied upon by the judge as set forth in paragraph (3) of this subsection. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order. . . .

(Emphasis supplied.) OCGA § 19-9-3 (a) (8). Moreover, pursuant to OCGA § 9-11-52 (a) of the Civil Practice Act, “in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” (Emphasis supplied.) The Supreme Court of Georgia has held that, for the purposes of statutory construction, the word “shall” is to be generally construed as a mandatory directive. See Lewis v. State, 283 Ga. 191, 194 (3) (657 SE2d 854) (2008); Southern Crescent Newspapers v. Dorsey, 269 Ga. 41, 45 (3) (497 SE2d 360) (1998); State v. Henderson, 263 Ga. 508, 510 (436 SE2d 209) (1993) (“shall” is generally construed as a mandatory directive); and see Bonds v. Bonds, 241 Ga. App. 378 (1) (527 SE2d 215) (1999) (pursuant to OCGA § 9-11-52 (a), entry of findings of fact are mandatory upon request by a party); Doe v. Chambers, 188 Ga. App. 879, 881 (2) (374 SE2d 758) (1988) (determining that OCGA § 9-11-52 (a) “requires separate specific findings of fact and conclusions of law in non-jury trials only upon request of any party made prior to such ruling”) (punctuation omitted; emphasis supplied).

In this case, the appellate record clearly reflects that Warren requested the trial court to make findings of fact and conclusions of law, and the law mandates that he was entitled to them. “Findings of fact and conclusions of law enable the parties to specify the errors the trial court purportedly made, and enable the appellate court to review the judgment adequately and promptly.” (Citation omitted.) Grantham v. Grantham, 269 Ga. 413, 414 (1) (499 SE2d 67) (1998). Warren denies that he withdrew his request, and the record fails to show otherwise. Therefore, we hereby vacate the trial court’s judgment to the extent it denies Warren’s request for a modification of custody, and we remand the case to the trial court for further proceedings not inconsistent with this opinion. See generally id. (in child custody dispute, judgment of the trial court vacated and case remanded where appellant timely petitioned the trial court pursuant to OCGA § 9-11-52 to provide findings of fact and conclusions of law and trial court failed to provide such). Compare Weickert v. Weickert, 268 Ga. App. 624, 629 (2) (602 SE2d 337) (2004) (in a child custody modification action, the trial court was not required to include specific findings of fact in its written order because neither party requested that the court do so, as provided in OCGA § 9-11-52 (a)); Doe, 188 Ga. App. at 881 (2).

Decided March 23, 2016.

Stearns-Montgomery & Proctor, Jennifer K. Brown, for appellant.

Melissa P. Smith, pro se.

Judgment affirmed in part and vacated in part, and case remanded.

Dillard and McFadden, JJ., concur.

       Warren does not appeal the judgment to the extent that it modifies child support.

       See OCGA § 19-9-3 (a) (2) (“The judge hearing the issue of custody shall make a determination of custody of a child and such matter shall not he decided by a jury.”).