text:
    A16A1289.
    FIRMANI et al. v. DAR-COURT BUILDERS, LLC et al.
    (793 SE2d 596)
   Branch, Judge.

Stewart and Marcia Weinhoff and their solely-owned corporation, Dar-Court Builders, LLC (collectively “the Weinhoffs”), filed suit in Cobb County Superior Court against a number of defendants, including Dominic Firmani and his company, Firmani Pension Services (“FPS”) (collectively “Appellants”), asserting claims for negligence, negligent misrepresentation, breach of fiduciary duty, constructive fraud, punitive damages, and attorney fees. The Weinhoffs contended that an error by Firmani and FPS in drafting a Dar-Court-sponsored 412 (i) pension plan (“the Plan”) resulted in significant damage to the Weinhoffs in the form of additional tax liability, penalties and interest on that tax liability, and attorney fees and other costs associated with an IRS audit of the Plan. The case proceeded to trial, and a jury found in favor of the Weinhoffs and against Firmani and FPS. Firmani and FPS now appeal from the orders of judgment entered against them, arguing that they are entitled to a new trial because a “script” used by the Weinhoffs’ attorney for her direct examination of one of the Weinhoffs’ witnesses was inadvertently submitted to the jury in violation of the continuing witness rule. Appellants further contend that the trial court erred in failing to grant their motions for a continuance and a mistrial, which were based on the Weinhoffs’ production, during discovery, of redacted attorney fee bills and their subsequent introduction at trial of unre-dacted copies of those bills. Firmani and FPS also assert that the trial court erred in excluding certain testimony offered by their expert witness on damages and in barring testimony regarding an indemnification clause contained in the documents creating the Plan. For reasons explained more fully below, we find no error and affirm the orders of judgment. We also deny the Weinhoffs’ request that we impose sanctions against Firmani and FPS for a frivolous appeal.

Viewed in the light most favorable to the jury’s verdict, Freese II, Inc. v. Moses, 301 Ga. App. 793, 794 (689 SE2d 98) (2009), the record shows that a 412 (i) plan is a defined-benefit pension plan created under 412 (i) of the Internal Revenue Code and funded entirely with two types of insurance products: life insurance policies and annuity contracts. The contributions to this type of pension plan, therefore, are the premiums paid for the insurance products. Funding a 412 (i) pension plan provides tax benefits to both the employer sponsoring the plan and the employee participating in the same; the employer gets to deduct the insurance premiums paid as contributions to the plan, while the employee reduces his salary (and therefore his taxable income) to fund the premiums. The IRS, however, limits the amount of life insurance that can be purchased to fund a 412 (i) plan. These limits serve to cap the amount of tax deductions available to the employer sponsoring the plan, and they also prevent such a plan from having an excessive amount of life insurance if a participant dies. When, as in this case, a 412 (i) plan is funded with whole life insurance, the premiums paid for that insurance may not exceed 66 2/3 percent “of the theoretical contribution generated when determining the Theoretical Individual Level Premium Reserve.”

William Baer served as the Weinhoffs’ financial advisor, and as part of his financial planning services, Baer sold insurance products. In 2002, Baer approached the Weinhoffs regarding the tax benefits of a 412 (i) plan and recommended that they invest in the same. The Weinhoffs thereafter decided to have Dar-Court sponsor such a plan, with Stewart Weinhoff as the sole participant and Marcia Weinhoff as Stewart’s beneficiary. Baer then worked with Stephen P. Toth, an actuary and pension planner, and Toth’s company, National Pension Associates, to design the Plan and determine its funding requirements. The Plan was funded with Pacific Life products, and Baer and Toth shared the commissions generated on those products. Firmani and FPS were hired to serve as the Plan administrator. In that role, Firmani and FPS drafted the necessary documents (the “Plan Documents”) and performed certain administrative duties, including auditing the Plan on an annual basis, preparing the annual forms required by the IRS, and preparing the Plan’s tax return.

At the time of the Plan’s creation, Stewart Weinhoff had applied for life insurance coverage in the amount of $1.25 million, with annual premiums of $75,000. Firmani and FPS drafted the Plan Documents based on this preliminary information. Thus, the Plan as drafted by Appellants in October 2002 provided that the amount of insurance on Stewart Weinhoff’s life “shall be . . . the amount purchased by a premium equal to 49% of the theoretical contribution generated when determining the theoretical individual level premium reserve.” The 49 percent cap was well below the maximum cap of 66 2/3 percent allowed by IRS regulations, and Firmani testified that he chose the 49 percent figure for two reasons. First, the anticipated annual premium of $75,000 fell below the 49 percent cap, and second, in Firmani’s experience, the IRS was less likely to audit a plan when the cap was less than 66 2/3 percent.

After Stewart Weinhoff completed the underwriting process, he was qualified for a $1.5 million life insurance policy with annual premiums of $105,000, and that was the policy that issued. The information regarding the increase in both policy coverage and premiums was forwarded to Firmani in December 2002, and he directed the FPS employee handling the Plan to amend the Plan Documents accordingly. FPS, however, did not amend the Plan Documents to reflect the increased amount of life insurance and the resulting increase in premiums — i.e., Appellants did not amend the Plan to raise the 49 percent cap for life insurance premiums. Although the $105,000 annual premium fell below the 66 2/3 percent cap permitted by IRS regulations, the larger premium exceeded the 49 percent cap by approximately $10,000 per year. Thus, the life insurance policy that issued exceeded the benefits allowed under the terms of the Plan Documents and resulted in the Plan — as created by Firmani and FPS — being overfunded. Had the Plan been amended to provide for a cap of 66 2/3 percent, the premium paid would have complied with the terms of the Plan Documents.

In 2008, the IRS audited Dar-Court’s 412 (i) plan and found that it violated the tax code because although the life insurance premiums fell below the 66 2/3 percent cap set by IRS regulations, they exceeded the 49 percent cap set by the Plan Documents. The IRS therefore deemed the plan a “listed transaction” (i.e., an illegal tax shelter), and assessed the Weinhoffs back taxes and penalties of approximately $1.9 million, exclusive of interest. The Weinhoffs retained Philip Bush, a tax lawyer specializing in employee benefits, to represent them before the IRS. Bush was eventually able to negotiate a settlement with the IRS, under which the Weinhoffs were required to pay $459,757.20 in taxes and penalties and $116,168.69 in interest.

The Weinhoffs brought this lawsuit in an effort to recover the amounts paid to the IRS in taxes, penalties, and interest, as well as the professional fees and costs they incurred in appealing the IRS’s initial ruling that they owed $1.9 million. During discovery, the Weinhoffs produced copies of Bush’s attorney fee bills, but redacted portions of the same, claiming that certain entries were protected by the attorney-client privilege. Additionally, during his deposition, Bush testified that because the attorney-client privilege had been asserted as to the redacted entries, he would not answer questions regarding those entries. At trial, however, the Weinhoffs sought to prove the amount of fees paid to Bush as a result of the IRS audit by introducing “largely unredacted” copies of his bills and questioning him regarding the same. Firmani and FPS objected to this evidence on the grounds that it had not been made available during discovery, but the trial court overruled the objection.

Stewart Weinhoff testified that he and his wife had incurred a total of $214,711.23 in professional fees and other expenses in appealing the IRS’s original assessment of back taxes and penalties and in negotiating a settlement with the IRS. This amount included $144,723.73 in attorney fees and $24,987.50 in actuarial fees. On cross-examination, defense counsel attempted to question Weinhoff about an indemnity clause found in the Plan Documents. The Weinhoffs objected to this line of questioning and the trial court sustained the objection, ruling that the indemnification clause could not be interpreted to require the Weinhoffs to indemnify Firmani and FPS for their own negligence.

During their case, Firmani and FPS presented the testimony of Michael Thompson, a CPA who was qualified as an expert in forensic accounting and damages calculations. Firmani sought to introduce testimony from Thompson that the actual damages suffered by the Weinhoffs totaled only $121,752, as well as testimony as to Thompson’s method for calculating these damages. Prior to jury selection, the Weinhoffs made an oral motion in limine seeking to prevent Thompson’s testimony on these issues. After hearing Thompson’s proffered testimony outside the presence of the jury, the trial court granted the motion in limine.

The jury found in favor of the Weinhoffs and awarded them $735,650 in compensatory damages, but further found that the Weinhoffs were not entitled to punitive damages or to an award of attorney fees under OCGA § 9-15-14. The jury apportioned liability as follows: 15 percent to Firmani; 40 percent to FPS; 25 percent to Baer; 15 percent to Baer’s company, National Pension Associates; and 5 percent to the Weinhoffs. The trial court entered judgment on the jury’s verdict, and Firmani and FPS now appeal from the orders of judgment entered against each. Additional facts relevant to this appeal are set forth below.

1. In their first enumeration of error, Firmani and FPS argue that they are entitled to a new trial because of the inadvertent submission to the jury of a document that was not introduced into evidence at trial. The record shows that before the exhibits were sent to the jury room, the trial court gave counsel for all parties the opportunity to review the exhibits and offer any objections. None of the parties objected, and counsel for the parties affirmatively stated that each agreed as to the exhibits and the verdict form being supplied to the jury One of the exhibits that went out with the jury was plaintiffs’ exhibit 88, which was a compilation of the bills the Weinhoffs had received from Bush’s law firm. The appellate record indicates, however, that two additional items were attached to plaintiff’s exhibit 88 at the time it went to the jury One of these items was a document created by plaintiffs’ counsel for her use in conducting a direct examination of Bush. This outline set forth the topics and questions that counsel covered with Bush during his testimony According to Appellants, these attachments were inadvertent, and were not discovered until their counsel reviewed the appellate record.

Firmani and FPS contend that the submission to the jury (as part of plaintiffs’ exhibit 88) of the outline of plaintiffs’ counsel’s direct examination of Bush violated the continuing witness rule. See McDaniel v. McDaniel, 288 Ga. 711, 717 (3) (a) (707 SE2d 60) (2011) (the continuing witness rule prohibits the submission to the jury of any document that could be viewed as a substitute for a witness’s testimony). Appellants further argue that because this violation of the continuing witness rule had the potential to “unduly influence” the jury, they are entitled to a new trial. We disagree.

Regardless of whether the inadvertent submission of this outline to the jury violated the continuing witness rule, the record shows that defense counsel “reviewed the exhibits prior to their submission to the jury and voiced no objection. Accordingly, this issue has not been preserved for our review.” Smith v. Stacey, 281 Ga. 601, 602-603 (2) (642 SE2d 28) (2007) (citation and punctuation omitted). See also Sanders v. State, 246 Ga. 42 (2) (268 SE2d 628) (1980) (trial court did not err in submitting exhibits to jury where counsel was given the opportunity to review the exhibits and thereafter failed to object to their submission). Moreover, given that counsel expressly approved the exhibits as compiled, counsel helped to induce any error that occurred, and Firmani and FPS cannot base their appeal on any such induced error. See Dyals v. Dyals, 281 Ga. 894, 896 (3) (644 SE2d 138) (2007) (where counsel expressly approved of the exhibits “before allowing them to go out with the jury,” any error in submitting the exhibits to the jury was induced by counsel’s conduct and could not serve as the basis for an appeal).

2. Firmani and FPS’s second claim of error relates to the Wein-hoffs’ introduction into evidence of unredacted bills they received from Bush’s law firm, which the trial court allowed despite the fact that the Weinhoffs had produced only redacted versions of those bills during discovery. Georgia’s Civil Practice Act obligates parties to provide all information or evidence in their possession that is responsive to a discovery request from the opposing party, provided such evidence is relevantandnotundulyburdensome. See OCGA § 9-11-26 (b). Additionally, the law imposes a duty on a party to supplement its discovery responses “when new information comes to its attention and the undisclosed matter may be a source of ‘surprise’ at trial to the party making the discovery” Shepherd Interiors v. City of Atlanta, 263 Ga. App. 869, 870 (1) (589 SE2d 640) (2003) (citation and punctuation omitted). See also OCGA § 9-11-26 (e). “When a party claims, during the course of trial, that he has been ‘surprised’ by evidence of a potentially ‘critical’ nature which should have been disclosed under [the] discovery [rules],” the options available to the party so surprised are to seek a brief continuance or postponement of trial to explore the newly-produced evidence, or to move for a mistrial. Shepherd, 263 Ga. App. at 870 (1) (citation and punctuation omitted). See also Infinite Energy v. Cottrell, 295 Ga. App. 306, 309 (3) (671 SE2d 294) (2008).

Citing this law, Firmani and FPS argue that the unredacted attorney fee bills from Bush’s firm and Bush’s testimony regarding the same constituted “surprise” evidence — i.e., it was evidence that the Weinhoffs were obligated to produce prior to trial. Thus, Appellants contend that the trial court erred when it denied their purported motions for a continuance and/or for a mistrial based on the introduction of the unredacted attorney fee bills. The record, however, shows that Appellants never sought either a continuance or a mistrial.

Appellants filed a pretrial motion in limine seeking to prevent the Weinhoffs from introducing into evidence unredacted versions of Bush’s bills because the now-unredacted entries had not been made available during discovery. Firmani and FPS also sought to prevent any testimony regarding the previously redacted entries. The admitted goal of this motion in limine was to prevent the Weinhoffs from recovering any of Bush’s fees as to which they had previously asserted the attorney-client privilege. The trial court heard this motion in limine before the jury was impaneled and reserved ruling on the same. At that time, however, Firmani and FPS did not move for a continuance based on the possibility that the redacted bills would be allowed into evidence. Instead, their attorney conceded that the admission of these bills into evidence was a possibility. Specifically, Appellants’ counsel stated that he understood no ruling had occurred but noted that if “Mr. Bush were to come in and waive the privilege, I would just ask that I get a copy of unredacted bills prior to him taking the stand so I can prepare to cross-examine him.” Both the trial court and counsel for the Weinhoffs agreed, and it is undisputed that counsel for Firmani and FPS received unredacted versions of Bush’s bills at least two days before Bush took the stand.

Immediately before Bush testified, Firmani and FPS again objected to the introduction of the unredacted fee bills or to any testimony concerning the same. At that time, their lawyer noted that the introduction of such evidence would require a continuance, as it had not been made available during discovery During this discussion, Appellants’ counsel stated, “I don’t want [a continuance] to happen,” and he did not move for a continuance. In response, the trial court stated its belief that because the jury had been impaneled, Firmani and FPS would be required to seek a mistrial rather than a continuance. A short time later, during Bush’s testimony as to his fees, the Weinhoffs introduced copies of the bills they had received from Bush’s firm, and these copies were “largely unredacted.” Appellants objected to the introduction of this evidence, with trial counsel stating that he “was not prepared to cross-examine [Bush] if there is going to be a waiver of [the] privilege” and that he could not ask for the first time in front of the jury questions that Bush had not been allowed to answer at his deposition due to the assertion of such privilege. Firmani and FPS again requested that the Weinhoffs only be allowed to introduce copies of the redacted bills that had been produced during discovery. The trial court overruled Appellants’ objection to the unredacted bills and Bush’s testimony regarding the same and again stated that it would rule on any specific objections related to the previous assertion of privilege as Bush’s testimony progressed. Firmani and FPS, however, did not request a mistrial at that time; nor did their attorney request any type of continuance to prepare for his cross-examination of Bush. Instead, counsel subsequently declined to cross-examine Bush regarding his bills, other than to establish that the Weinhoffs had previously asserted the attorney-client privilege as to portions of most, if not all, of those bills.

Given their failure to move for either a continuance or a mistrial, Firmani’s and FPS’s second claim of error is procedurally barred. See Watts v. State, 265 Ga. 888 (2) (463 SE2d 696) (1995) (where a party neither moved for a continuance nor objected to the trial court’s failure to order a continuance, his claim of error based on the lack of a continuance was procedurally barred). To preserve an issue for appeal, a party is required to make a timely motion or objection — i.e., a motion or objection that is contemporaneous with the ruling or the introduction of the evidence to which they are objecting. See Frazier v. State, 249 Ga. App. 463, 465 (4) (549 SE2d 133) (2001). See also McConnell v. Akins, 262 Ga. App. 892 (1) (586 SE2d 688) (2003) (“[i]f no opportunity is given the court to cure any alleged error, it is waived”) (citation omitted). Here, while Appellants’ counsel and the trial court discussed the potentially available remedies of a continuance and a mistrial, Firmani and FPS never affirmatively made any motion related to these discussions. And despite Appellants’ argument to the contrary, those discussions, which took place before the evidence at issue was introduced, were insufficient to preserve this issue for appeal. See Dagne v. Schroeder, 336 Ga. App. 36, 42-43 (5) (783 SE2d 426) (2016).

3. Firmani and FPS further contend that the trial court erred in excluding the testimony of their damages expert as to his opinion of the Weinhoffs’ damages and his method of calcula ting those damages. With respect to this claim of error, we note that the admission of evidence is a matter resting within the sound discretion of the trial court, and we will not disturb the exercise of that discretion absent evidence of its abuse. Smith v. CSX Transp., 325 Ga. App. 314, 318 (751 SE2d 604) (2013). Similarly, the question of whether an expert witness “has stated a proper basis for expressing an opinion is for the trial court[,]” and we also review a trial court’s ruling on this issue for abuse of discretion. Sevostiyanova v. Tempest Recovery Svcs., 307 Ga. App. 868, 872 (2) (705 SE2d 878) (2011) (citation omitted). We find no abuse of discretion here.

As noted above, Thompson testified outside the presence of the jury that, in his opinion, the Weinhoffs had suffered actual damages of only $121,752. Thompson explained his method for calculating damages, stating that he began by calculating three numbers: the damages suffered by the Weinhoffs as a result of the IRS audit (which Thompson conceded totaled approximately $760,000); the benefits the Weinhoffs would have received if, during the relevant time frame, the Plan had been funded as originally planned (i.e., with a life insurance policy of $1.25 million at an annual premium of $75,000); and the benefits the Weinhoffs in fact received during the relevant time frame as a result of funding the Plan with a $1.5 million life insurance policy at an annual premium of $105,000. In Thompson’s calculations, the ‘Tenefits” the Weinhoffs received included the tax benefits they received as a result of Dar-Court funding the Plan; the cash value of the life insurance policy on Stewart Weinhoff; and the theoretical return the Weinhoffs would have received on their tax savings, which Thompson assumed the Weinhoffs would have reinvested. And under Thompson’s calculations, the benefits that the Weinhoffs actually received as a result of the Plan being funded with a larger insurance policy at a higher premium were greater than the benefits they would have received if Dar-Court had funded the Plan as originally intended, with a premium that fell below the 49 percent cap contained in the Plan Documents. Thompson therefore calculated the difference between these two sets of benefits — i.e., he subtracted the theoretical benefits the Weinhoffs would have received if the Plan were funded with a $75,000 annual premium from the benefits they actually received by funding the Plan with a $105,000 premium. Thompson then took the resulting number and added it to the tax deduction the Weinhoffs had taken for some of the attorney fees they paid in defending themselves in the IRS action. Thompson then subtracted this total amount from the taxes, penalties, interest, and other costs the Weinhoffs incurred as a result of the IRS audit.

The theory underlying Thompson’s method of calculating damages was that an “error” had occurred when the Weinhoffs’ financial advisor and insurance agent (Baer) “overfunded” the Plan with the higher life insurance policy (and thereafter failed to inform Firmani and FPS). He reasoned, therefore, that Firmani and FPS were entitled to offset the “unanticipated” benefits generated by this error against the damages the Weinhoffs suffered as a result of the IRS audit. The flaw in Thompson’s decision to subtract from the Wein-hoffs’ damages the “unanticipated benefits” they supposedly received as a result of funding the Plan at a higher rate is that it misstates the cause of the injury sustained by the Weinhoffs. Specifically, Thompson’s calculation assumes that the Weinhoffs’ damages were caused not by Appellants’ error in failing to amend the Plan Documents, but by an error by Baer in “overfunding” the Plan with an inflated amount of life insurance. Viewing the evidence in the light most favorable to the jury’s verdict (as we are obligated to do), the record shows that the level at which the Plan was funded did not result from an error. Instead, after Stewart Weinhoff qualified only for the life insurance policy with a higher premium, the Weinhoffs decided to fund the Plan at that premium. Thus, the Weinhoffs contended, and the evidence showed, that the Weinhoffs were entitled to receive the tax and insurance benefits associated with the $1.5 million life insurance policy funded with an annual premium of $105,000. The Weinhoffs were injured when, through the negligence of Firmani, FPS, and Baer, the Plan documents were not amended to increase the 49 percent cap on life insurance premiums. In other words, the benefits generated when the Plan was funded with an annual life insurance premium of $105,000 were not unanticipated by the Weinhoffs. And “but for” the negligence of Appellants and Baer (in failing for a number of years to ensure that the Plan Documents accurately reflected the life insurance policy that actually issued) the Weinhoffs would have received those benefits.

As the foregoing demonstrates, Thompson’s damages calculations would not have allowed the Weinhoffs to recover all of the damages they suffered as a result of Appellants’ failure to amend the Plan Documents. Given this fact, and because Thompson’s theory of causation was not supported by the evidence, the trial court did not err in excluding Thompson’s testimony regarding the difference in benefits between a theoretical plan funded with a $75,000 annual life insurance premium and the Weinhoffs’ actual plan (which was funded with a $105,000 annual premium). See John Thurmond & Assoc. v. Kennedy, 284 Ga. 469 (1) (668 SE2d 666) (2008) (as a general rule, “damages are intended to place an injured party, as nearly as possible, in the same position they would have been if the injury had never occurred”); Metro. Atlanta Rapid Transit Auth. v. Green Intl., 235 Ga. App. 419, 422 (1) (509 SE2d 674) (1998) (a party may offer expert testimony as to damages, but the facts relied on by the expert in calculating damages must be “within the bounds of the evidence”).

Furthermore, the Appellants’ argument that the tax deduction the Weinhoffs received as a result of their dispute with the IRS could be used to offset their damages in this case finds no support in the law. Georgia law is clear that in tort actions, “a benefit bestowed on the injured party should not be shifted so as to create a windfall for the tortfeasor.” Broda v. Dziwura, 286 Ga. 507, 508 (689 SE2d 319) (2010) (citation omitted). “It is the tortfeasor’s responsibility to compensate for all harm that he causes, [and that responsibility is] not confined to the net loss that the injured party receives.” Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 406 (1) (434 SE2d 450) (1993) (citation and punctuation omitted). Thus, “[i]f a windfall must be had, it will inure to the benefit of the injured party rather than relieve the wrongdoer of full responsibility for his wrongdoing.” Broda, 286 Ga. at 508 (citations omitted). Additionally, although Georgia courts have not previously addressed this question, we note that the “general rule” recognized by other states is that in a case involving financial damages, those “damages should not be reduced by the amount of money that [the plaintiff] was able to save by deducting the loss ... on her tax returns.” Burdett v. Miller, 957 F2d 1375, 1383 (7th Cir. 1992) (applying Illinois law). See also Fullmer v. Wohlfeiler & Beck, 905 F2d 1394, 1402 (V) (10th Cir. 1990) (applying Utah law); Western-Realco Limited Partnership 1983-A v. Harrison, 791 P2d 1139, 1147 (II) (Colo. App. 1989); Coty v. Ramsey Assoc., 546 A2d 196, 204 (III) (B) (Vt. 1988); Danzig v. Grynberg & Assoc., 161 Cal. App. 3d 1128, 1139-1140 (III) (1984).

In light of the foregoing, we find no abuse of discretion by the trial court in excluding Thompson’s testimony as to his opinion of the damages suffered by the Weinhoffs and his method for calculating the same.

4. Appellants contend that the trial court erred in excluding evidence of an indemnity provision found in the Plan Documents drafted by Firmani and FPS because this provision would have allowed the jury to consider “whether FPS’s role as a plan administrator subject to an indemnity provision subjected it to different, consideration than that given to Toth and Baer — [the financial professionals and] insurance salesman who sold the Plan, ruined the Plan with excess insurance, and walked away” We find no error.

Because the indemnity clause is a contractual provision, its interpretation is a question of law, and we therefore review the trial court’s ruling on this issue de novo. Willesen v. Ernest Communications, 323 Ga. App. 457, 459 (1) (746 SE2d 755) (2013). And under Georgia law, “the words of a contract of indemnification must be construed strictly against the indemnitee . . . [a]nd every presumption is against [an] intention to indemnify.” Svc. Merchandise Co. v. Hunter Fan Co., 274 Ga. App. 290, 292 (1) (617 SE2d 235) (2005) (punctuation and footnote omitted). Accordingly, we will not interpret “contractual indemnities [to] extend to losses caused by an indemnitee’s own negligence unless the contract expressly states that the negligence of the indemnitee is covered.” Ryder Integrated Logistics v. BellSouth Telecommunications, 281 Ga. 736, 737-738 (642 SE2d 695) (2007). See also Emergency Professionals of Atlanta v. Watson, 288 Ga. App. 473, 477 (2) (654 SE2d 434) (2007) (“unless a contract for indemnification explicitly and expressly states that the negligence of the indemnitee is covered, this Court will not interpret such an agreement as a promise to save the indemnitee from his own negligence”) (footnote omitted). Here, the indemnity clause did not “expressly, plainly, clearly, and unequivocally state that [Dar-Court] would indemnify [Appellants] from [their] own negligence.” Id. (footnote omitted). Instead, the clause provided:

Insurance and Indemnity. The Employer [Dar-Court] may purchase ... and keep current as an authorized expense liability insurance for the Plan, its Fiduciaries, and any other person to whom any financial or other administrative responsibility with respect to the Plan ... is allocated or delegated, from and against any and all liabilities, costs and expenses incurred by such persons as a result of any act or omission to act in connection with the performance of the duties, responsibilities and obligations under the Plan . . . ; provided, that any such insurance policy purchased with Plan assets permits the subrogation by the Insurer against the Fiduciary in the case of breach by such Fiduciary. Unless otherwise determined and communicated to affected parties by the Employer, the Employer shall indemnify and hold harmless each such person, other than a corporate trustee, for and from any such liabilities, costs and expenses which are not covered by any such insurance, except to the extent that any such liabilities, costs or expenses are judicially determined to be due to the gross negligence or willful misconduct of such person. No Plan assets may be used for any such indemnification.

Decided November 10, 2016.

Bovis, Kyle, Burch & Medlin, William M. Davis, for appellants.

(Emphasis supplied.)

We acknowledge that the wording of the indemnification provision, which references indemnification “against any and all liabilities, costs and expenses incurred by [the indemnitee]... in connection with the performance of [their] duties, responsibilities and obligations under the Plan,” might at first appear to support Appellants’ position. However, the indemnification clause also makes clear that it was not intended to shield Firmani and FPS from liability resulting from breach of their fiduciary duties, even when such a breach resulted from mere negligence. Given this fact, and because the indemnification clause “is bereft of any express or explicit statement about coverage for the [Appellants’] own negligent acts or omissions [,] ” Dar-Court cannot be required to indemnify FPS and Firmani for their own negligence. Park Pride Atlanta v. City of Atlanta, 246 Ga. App. 689, 691 (1) (541 SE2d 687) (2000). See also Ryder Integrated Logistics, 281 Ga. at 738. Accordingly, given that the indemnification clause did not require Dar-Court to indemnify FPS and Firmani for their own negligent acts, the trial court did not err in excluding evidence related to that clause.

For the reasons set forth above, we affirm the orders of judgment entered against Firmani and FPS by the trial court. We deny the Weinhoffs’ request that we impose sanctions against Firmani and FPS for a frivolous appeal.

Judgment affirmed.

Ellington, P. J., and Mercier, J., concur.

Robbins, Ross, Alloy, Belinfante & Littlefield, Richard L. Robbins, Jeremy U. Littlefield, Kimberly K. Anderson, for appellees.

       Other defendants named in the lawsuit were the Weinhoffs’ financial planner, William Baer; Baer’s company, Baer Wealth Management, LLC; Stephen Toth, an actuary and pension planner; and Toth’s company, National Pension Associates, LLC. All of the named defendants other than Firmani and FPS settled with the Weinhoffs prior to trial.

       An excessive amount of life insurance would be an amount that would provide a death benefit in excess of the amount that could be paid out under the terms of the pension plan — i.e., it would result in the plan having a surplus of assets.

       The “Theoretical Individual Level Premium Reserve,” or “ILP,” is an actuarial funding method, and it represents the amount of pension funds that would be available at the time of a participant’s death “if, for each year of plan participation, a contribution was made on behalf of the participant equal to the theoretical contribution.” Melanie N. Aska & James E. Turpin, Pension Distribution Answer Book § 12:69 (2016 ed.). The “theoretical contribution” represents “the amount of the contribution that would have been made on behalf of the participant, using the ILP funding method from the age at which participation began to normal retirement age, to fund the participant’s entire retirement benefit . . . .” Id.

       At trial, counsel for the Weinhoffs stated that during the discovery period, Bush believed that the Weinhoffs could have some lingering issues with the IRS, and he therefore believed it necessary to keep the attorney-client privilege intact with respect to certain work he had done for them. By the time of trial, however, Bush believed that all issues with the IRS had been resolved, and therefore unredacted versions of his bills could be produced.

       The other item attached to plaintiffs’ exhibit 88 was a DVD of the videotaped deposition of Stephen Toth, which had been introduced into evidence and played at trial.

       We note that the trial court’s refusal to exclude this evidence is supported by relevant law. See Infinite Energy, 295 Ga. App. at 309 (3) (“When a party proffers at trial evidence which should have been disclosed during discovery, exclusion of the proffered evidence is not an authorized sanction. The proper sanction is to order a postponement or a mistrial.”) (punctuation and footnote omitted). See also Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 480 (6) (491 SE2d 909) (1997) (noting that where a plaintiff produces surprise evidence at trial, ‘the court should allow a postponement of the trial for a sufficient length of time to enable the defendant to interview the witness, check the facts to which he would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach him. The trial judge should exercise his discretion as to the length of time that would be necessary for counsel.”) (citation and punctuation omitted).

       In their brief, Firmani and FPS argue that the unredacted invoices could have led to the discovery of additional relevant evidence because they constituted a waiver of the attorney-client privilege with respect to the legal matters identified on the bills. Specifically, Appellants argue that “[b]y producing largely unredacted invoices at trial, [the Weinhoffs] opened the door to the rest of [Bush’s attorney] file” with respect to the Weinhoffs’ dispute with the IRS. Appellants’ brief, however, cites no legal authority to support the proposition that the production of the unredacted bills constituted a wholesale waiver as to the entirety of Bush’s legal files. See Waldrip v. Head, 272 Ga. 572, 578-579 (2) (532 SE2d 380) (2000) (where a defendant files a habeas corpus petition based on ineffective assistance of counsel, he has waived the attorney-client privilege to the extent necessary to allow the State to defend against that petition); Felts v. State, 244 Ga. 503, 505 (4) (260 SE2d 887) (1979) (holding that where defendant had testified without objection at his previous trial that he had lied to his attorney about where he had received the gun used in the crime, he waived the attorney-client privilege as to that lie, but limiting the waiver to that statement). Moreover, although Appellants speculate in their brief that Bush’s representation of the Weinhoffs “may have included . . . discussions with actuaries regarding opinions as to what issues existed with the Plan, who should bear responsibility for those issues, and whether the [Weinhoffs] responded reasonably to settlement overtures [,] they point to nothing in the unredacted bills that supports this speculation.

       In calculating this theoretical return on the presumed reinvestment of the Weinhoffs’ tax savings, Thompson assumed a return of 2.5 percent. This amount represented the return the Weinhoffs would have received on a 10-year treasury bond, which Thompson explained represented the most conservative investment available.

       Notably, Firmani acknowledged in his testimony that the Plan Documents should have been amended to increase the life insurance premium cap to the maximum 66 2/3 percent allowed under IRS regulations, and had they been so amended, the Weinhoffs “probably” would not have been penalized by the IRS.

       Moreover, Thompson acknowledged during his testimony that the tax consequences to the Weinhoffs of any damages award they recovered in this action were unknown.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A16A1372.
    A16A1373.
    OCCIDENTAL FIRE AND CASUALTY OF NORTH CAROLINA v. GOODMAN et al. GOODMAN et al. v. STOVER et al.
    (793 SE2d 606)
   McFADDEN, Judge.

The main appeal in this case challenges a trial court’s order granting summary judgment to plaintiffs on their claims for breach of contract and reformation of an insurance policy to name the correct insured and denying summary judgment to the defendants as to all claims. However, the trial court correctly ruled that the insurance policy must be reformed to correct the mutual mistake of the parties naming the wrong insured and correctly found that there exist genuine issues of material fact as to the remaining claims. Accordingly, we affirm the summary judgment rulings. The cross-appeal challenges the trial court’s order dismissing certain of the plaintiffs’ claims as time-barred by the statute of limitation. However, the trial court correctly ruled that the claims were filed after the statute of limitation had expired, so we affirm.

Case No. A16A1372

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. Norton v. Cobb, 284 Ga. App. 303 (643 SE2d 803) (2007). This Court reviews de novo a grant or denial of summary judgment, viewing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Id. at 303-304.

So viewed, the evidence shows that on November 17, 2008, R & R Spirits of Atlanta, LLC, entered into an agreement with Irish Bred Pub & Grill V, Inc., for the purchase of all the assets and interests of a bar and restaurant business in McDonough, Georgia, known as Irish Bred Pub & Grill. On February 26, 2009, Anthony Jones, the sole member of R & R, signed an application for commercial insurance coverage for the new bar and restaurant business. The application identified the insureds as Irish Bred Pub & Grill V, Inc., and Irish Bred Pub & Grill. On that same date, Jones signed an acceptance of a written proposal for insurance coverage from Occidental Fire and Casualty of North Carolina (“Occidental”) for Irish Bred Pub & Grill V, Inc. and Irish Bred Pub & Grill. Thereafter, Occidental issued an insurance policy, effective February 27, 2009, listing the insured as Irish Bred Pub & Grill V, Inc.

On March 8, 2009, Gregory Ryan Gilliam was fatally stabbed at the Irish Bred Pub & Grill. In April 2009, R & R was served with a lawsuit filed by the parents and estate of Gilliam (hereinafter, “the plaintiffs”), seeking wrongful death damages. R & R requested that, pursuant to the policy, Occidental provide R & R with a defense in the wrongful death suit. But Occidental denied coverage and refused to provide a defense on the basis that R & R was not listed as, and did not come within the definition of, an insured under the policy.

After Occidental denied coverage, R & R entered into a settlement agreement with the plaintiffs, whereby R & R assigned all of its claims against Occidental to the plaintiffs. On July 26,2012, a default judgment was entered against R & R, and on April 25, 2013, an order was entered reflecting that the judgment was entered against R & R d/b/a Irish Bred Pub & Grill.

On August 19, 2013, the plaintiffs filed their original complaint against Occidental and others. Then on April 24, 2014, plaintiffs filed their first amended complaint against Occidental and others, asserting, among other things, claims for reformation of the insurance policy and breach of contract. The plaintiffs claimed that the former owner of the business, not the current owner R & R, was identified as the insured due to mutual mistake of the parties. The plaintiffs moved for summary judgment on their reformation claim and partial summary judgment on their breach of contract claim, while Occidental filed an opposing motion for summary judgment on all claims. The trial court granted the plaintiffs’ motions, finding that there was an enforceable contract between R & R and Occidental. The trial court held that the amount of damages caused by the breach of contract was an issue for the jury The trial court denied Occidental’s motion for summary judgment on the plaintiffs’ claims. Occidental appeals from the trial court’s summary judgment order.

1. Reformation.

Occidental argues that the trial court erred in reforming the policy to identify the owner of the business, R & R, rather than the former owner, as the insured. We disagree.

Reformation of a contract is an equitable remedy for correcting an instrument to make it express the true intention of the parties, where from some cause, such as fraud, accident, or mistake, it does not express such intention. The remedy is not available for the purpose of making a new and different, contract for the parties, but is confined to establishment of the actual agreement. Where reformation is sought on the ground of mutual mistake, it must, of course, be proved to be the mistake of both parties.

Anthony v. Grange Mut. Cas. Co., 226 Ga. App. 846, 847 (487 SE2d 389) (1997) (citations and punctuation omitted). “The cause of the defect is immaterial so long as the mistake is common to both parties to the transaction. And the negligence of the complaining party will not defeat his right to reformation if the other party has not been prejudiced.” Curry v. Curry, 267 Ga. 66, 67 (1) (473 SE2d 760) (1996) (citations omitted). Furthermore, “[a]Though the evidence as to the mistake must be clear, unequivocal and decisive, there is no rule that reformation will be denied unless the mistake be admitted by both parties.” Fox v. Washburn, 264 Ga. 617, 618 (1) (449 SE2d 513) (1994) (citations omitted).

In this case, the initial cause of the defect was Jones’ application for insurance coverage, in which he mistakenly identified the prior corporate owner of the business and Irish Bred Pub & Grill, rather than current owner R & R, as the party to be insured. Jones explained in his affidavit that he did this because he knew R & R owned the assets and interests of the business so he believed “that by listing Irish Bred Pub & Grill that [the] bar and restaurant would be completely covered under the Occidental policy.” He further deposed that he thought R & R had purchased all the names associated with the business, including Irish Bred Pub & Grill V, Inc., and that he did not know R & R had to be listed on the insurance application.

Thereafter, Occidental, in issuing the policy for commercial general liability coverage for the bar and restaurant business, labored under the same misconception that the name of the insured should be the prior corporate owner’s name. Occidental has pointed to no evidence in the record creating a genuine issue of material fact as to why either Jones or Occidental would have intended for the policy to provide such coverage to the prior owner who no longer had any interest in the business, rather than the actual current owner. As the trial court correctly found, the clear intent of the contracting parties was to provide “insurance coverage for the new business which was owned by R & R and not [by] Irish Bred Pub & Grill V, Inc.” Thus, the trial court correctly concluded that the mistake was mutual in that Occidental relied on Jones’ mistake in issuing the policy in the name of the former owner of the business. “As the mistake was one common to both parties, that is both parties were laboring under the same misconception[,] and as this common mistake existed at the time of the execution of the . . . contract of insurance, it was mutual rather than unilateral.” Brannen v. Gulf Life Ins. Co., 201 Ga. App. 241, 244 (3) (410 SE2d 763) (1991) (citations omitted). Accordingly, Occidental has not shown that the trial court erred in reforming the policy on this ground.

2. Prejudice.

Occidental contends that it was prejudiced by reformation of the policy. However, “[regarding the question of prejudice, the Supreme Court of Georgia [has] explained that a party cannot be hurt by reforming the instrument, so as to keep them from getting what they did not buy” Ledford v. Smith, 274 Ga. App. 714, 727-728 (4) (618 SE2d 627) (2005) (citation and punctuation omitted). Here, Occidental agreed to insure the operations of the bar and restaurant, accepted payment to do so, and now seeks to avoid such coverage. Under these circumstances, “we find [Occidental,] rather than being prejudiced by the negligence of [Jones in misidentifying the correct name of the insured,] stands, in fact, to obtain a windfall not bargained for absent the equitable remedy of reformation.” Brannen, supra at 244 (4) (citations omitted). Accordingly, the trial court did not err in granting reformation.

3. Breach of contract.

Occidental enumerates that there was no enforceable contract between it and R & R, and thus the trial court erred in denying Occidental’s motion for summary judgment and in granting the plaintiffs’ motion for summary judgment on the breach of contract claim. But as explained above, the trial court correctly reformed the contract to name R & R as the insured under the policy. Therefore, this enumeration fails.

4. Post-judgment interest.

The trial court entered judgment against Occidental for post-judgment interest on the 2012 judgment entered against R & R, as provided for in the policy. Occidental claims that this ruling is contrary to the terms of the policy, which states that such interest is covered only with respect to any lawsuit against an insured which Occidental defends. Since Occidental did not defend R & R in the prior suit which was settled and resulted in the 2012 judgment, Occidental contends that it has no obligation under the policy to pay interest on that judgment. The contention is without merit.

[Occidental] is essentially arguing that simply because its insured agreed to settle a claim for which [Occidental] refused to provide either coverage or a defense, [Occidental] is relieved of its obligation to pay under the policy. This argument, however, is at odds with both our precedent and learned treatises.... [A]n insurer has a ... duty to defend its insured against all claims covered under a policy, even those that are groundless, false, or fraudulent. An insurer that refuses to indemnify or defend based upon a belief that a claim against its insured is excluded from a policy’s scope of coverage does so at its peril, and if the insurer guesses wrong, it must bear the consequences, legal or otherwise, of its breach of contract.

Southern Guar. Ins. Co. v. Dowse, 278 Ga. 674, 676 (1) (605 SE2d 27) (2004) (citations and punctuation omitted).

In this case, rather than defend the action with a reservation of rights as to coverage, Occidental simply denied coverage and refused the request to provide a defense to the lawsuit based on its incorrect belief that the claim against R & R was not covered by the policy Under these circumstances, Occidental must bear the consequences of its decision not to defend the suit and must pay for its breach of the contract. Accordingly, the trial court correctly awarded post-judgment interest as provided for in the policy See Empire Fire & Marine Ins. Co. v. Driskell, 262 Ga. App. 447, 448-449 (585 SE2d 657) (2003) (insurer required to pay post-judgment interest on claim it refused to defend where it incorrectly argued that party against whom judgment was entered was not an insured under the policy).

5. Standing.

Contrary to Occidental’s argument, the plaintiffs, as assignees of R & R, have standing to bring the reformation and breach of contract claims. See Ins. Agency of Glynn County v. Atlanta Cas. Co., 255 Ga. App. 323, 324 (1) (565 SE2d 547) (2002) (reformation of written instruments may be had by the immediate parties thereto and those standing in privity with them, such as their successors). See generally Cherokee Nat. Life Ins. Co. v. Coastal Bank of Ga., 239 Ga. 800, 803 (3) (238 SE2d 866) (1977).

6. Breach of fiduciary duty and attorney fees.

Occidental contends that the trial court erred in denying its motion for summary judgment on the plaintiffs’ claims for breach of fiduciary duty and attorney fees. These contentions are premised entirely on Occidental’s assertion that R & R was not insured under the policy. But as explained above, R & R was the correct insured under the reformed policy, and therefore these enumerations of error fail.

Case No. A16A1373

In addition to suing Occidental, the plaintiffs also brought claims against Shannon Stover and Insurance Office of America, Inc (hereinafter “IOA”), for negligence and breach of fiduciary duty in failing to procure liability insurance for R & R. Stover and IOA moved to dismiss the claims against them on the basis that they were time-barred by the four-year statute of limitation set forth in OCGA § 9-3-31. The trial court granted the motion to dismiss. The plaintiffs filed this cross-appeal, arguing that the trial court erred in dismissing the claims against Stover and IOA. We hold that the statute of limitation began to run when Occidential denied coverage. So we affirm the trial court’s order.

The plaintiffs contend that the issue in this case is controlled by the Supreme Court of Georgia’s decision in Hoffman v. Ins. Co. of North America, 241 Ga. 328 (245 SE2d 287) (1978), which found that the tort claim against an insurance agent for negligent procurement of coverage was not barred by the statute of limitation. In Hoffman, the Supreme Court stated:

The statute of limitation begins to run on any given claim on the date the claim accrues — in other words, on the date that suit on the claim can first be brought. When the question is raised as to whether an action is barred by a statute of limitation[ ], the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.

Id. at 329 (citation and punctuation omitted). The court further explained:

The test to be applied in determining when the statute of limitation [ ] begins to run against an action sounding in tort is in whether the act causing the damage is in and of itself an invasion of some right of the plaintiff, and thus constitutes a legal injury and gives rise to a cause of action. If the act is of itself not unlawful in this sense, and a recovery is sought only on account of damage subsequently accruing from and consequent upon the act, the cause of action accrues and the statute begins to run only when the damage is sustained; but if the act causing such subsequent damage is of itself unlawful in the sense that it constitutes a legal injury to the plaintiff, and is thus a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, however slight the actual damage then may be.

Id. at 330 (citations and punctuation omitted). In short, “[t]he action in tort for negligence depends upon the presence of damages and, therefore, may not be maintained until the principal suffers a loss.” Id. at 329 (citation omitted).

The plaintiffs contend that R & R did not suffer a loss from Stover and IOA’s negligence in failing to procure coverage until there was a judgment against it on July 26, 2012. But contrary to this contention, Hoffman did not hold that a negligent procurement claim against an insurance agent accrues only when there is a final judgment against the insured. Instead, the crux of Hoffman was to reject and reverse this court’s ruling in Hoffman v. Ins. Co. of North America, 144 Ga. App. 420 (241 SE2d 303) (1977), which relied on the rule in attorney malpractice cases that the claim accrues and the statute of limitation begins to run from the date of the breach of the duty rather than from the date the resulting damage occurs. Hoffman, 241 Ga. at 328. The Supreme Court in Hoffman noted that in an even earlier declaratory judgment case involving the same parties, Hoffman v. Ins. Co. of North America, 130 Ga. App. 777 (204 SE2d 520) (1974), this court had held that the insured’s action could not be maintained until actual damages had been sustained, and thus both of this court’s rulings were in direct conflict and put the insured “in the untenable position of never being able to bring his action; it has at all times been either too early or too late.” Hoffman, 241 Ga. at 330. While it is apparent that the Supreme Court in Hoffman held that the statute of limitation in such a tort case begins to run from the date damage was sustained, not from the date of the breach, the Supreme Court did not expressly hold, as the plaintiffs propose, that damage is sustained only when there is a final judgment of liability against the insured. Id.

And while we are not bound by federal authority, we find persuasive the decision of a federal court which analyzed this issue, including the Hoffman case, and found that

Georgia law appears to indicate that the statute of limitation[ ] does not begin to run until the insurer refuses to honor the beneficiary’s claim. The Court is further persuaded by the rationale of other state courts that have addressed negligent procurement claims and reached the same conclusion. See Bush v. Ford Life Ins. Co., 682 So.2d 46, 47 (Ala. 1996) (concluding that a negligent procurement claim against a credit-life insurance policy provider did not accrue until the insurer’s refusal to honor the beneficiary’s claim); Blumberg v. USAA Cas. Ins. Co., 729 So.2d 460, 462 (Fla. Dist. Ct. App. 1999) (finding that the statute of limitation[ ] began to run on an insured’s claim for negligent procurement when he learned that coverage had been denied) [.]

Decided November 14, 2016

Dennis, Corry, Porter & Smith, R. Clay Porter, John D. Dixon, M. Angela Cooper, for Occidental Fire & Casualty.

Bondurant, Mixson & Elmore, Michael B. Terry, Robert L. Ashe III; Peauy Law, John H. Peavy, Jr.; The Ausband Firm, Andrew C. Ausband, Kathryn W. Carpenter, for Goodman et al.

James Bates Brannan Groover, Jo Lanier Meeks, for Stover et al.

Saye v. Unumprovident Corp., CivilAction File No. 1:07-CV-31-TWT, 2007 U.S. Dist. LEXIS 58901 *14-15 (II) (A) (2) (N.D. Ga. 2007). See also Plaza Bottle Shop v. Al Torstrick Ins. Agency, 712 SW2d 349, 350 (Ky. Ct. App. 1986) (stating that a cause of action for negligent procurement began to run when insured was informed that it had no coverage, not when judgment was rendered against it).

In this case, we find that the plaintiffs’ claims against Stover and IOA for allegedly failing to procure insurance accrued, and the statute of limitation began to run, on the date Occidental denied coverage to R & R, which was May 27, 2009. See generally Vara v. Essex Ins. Co., 269 Ga. App. 417, 418 (a) (604 SE2d 260) (2004) (insurer’s notice that there was no coverage under policy and that it would not defend lawsuit gave plaintiffs the right to institute third-party action against insurer to determine whether insurer had duty to indemnify insureds in the suit). As assignees of R & R’s claims, the plaintiffs therefore had four years from that date, until May 27, 2013, to bring the negligence and breach of duty claims against Stover and IOA. But the plaintiffs did not initiate this action until August 2013. “A motion to dismiss barred claims is properly granted when a complaint shows on its face that the statute of limitation has run and there is no further showing by amendment or by affidavit that a tolling of the statute is possible.” Harpe v. Hall, 266 Ga. App. 340 (596 SE2d 666) (2004) (citation and punctuation omitted). Accordingly, the trial court did not err in granting the motion to dismiss the claims against Stover and IOA.

Judgments affirmed.

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


text:
    A16A0722.
    DOUGLAS ASPHALT COMPANY v. MARTIN MARIETTA AGGREGATES et al.
    (793 SE2d 615)
   McFADDEN, Judge.

Douglas Asphalt Company appeals the grant of summary judgment to Martin Marietta Aggregates on Douglas Asphalt Company’s counterclaim for breach of contract. It also appeals the trial court’s dismissal of its amended counterclaim. We affirm the judgment to Martin Marietta Aggregates because Douglas Asphalt has failed to point to evidence giving rise to a triable issue. We affirm the dismissal of the amended counterclaim because Douglas Asphalt did not obtain leave of court before filing it.

1. Facts.

Martin Marietta Aggregates filed a suit on account against Douglas Asphalt Company and Douglas Asphalt Paving, Inc. It alleged that Douglas Asphalt Company owed it $547,056 on an open account/line of credit under which Martin Marietta had provided aggregate material to Douglas Asphalt Company on numerous occasions. It further alleged that Douglas Asphalt Paving was the successor to Douglas Asphalt Company and had assumed its debts.

The defendants answered the complaint, and Douglas Asphalt Company filed a counterclaim, alleging that “pursuant to one or more agreements” between Douglas Asphalt Company and Martin Marietta, Martin Marietta was required to provide aggregate material within a specific schedule, but, on numerous occasions, it had failed to do so. Douglas Asphalt Company did not specify the occasions on which Martin Marietta allegedly failed to meet a specific schedule, but in the course of litigation, it clarified that it sought damages for delays in regard to seven particular projects that it identified as the Brantley County project, the Monroe County project, the Crisp/Turner project, the Bacon/Ware project, the Appling project, the Appling/Wayne project, and the Barco-Duval project.

Martin Marietta moved for summary judgment on the counterclaim in June 2010. Among other arguments, Martin Marietta contended that it was entitled to summary judgment because the parties had not entered an enforceable agreement for the sale of goods and that Douglas Asphalt Company never produced the contracts that underlie its counterclaim.

On November 28, 2012, more than three years after filing its answer and counterclaim, Douglas Asphalt Company filed an amended counterclaim, seeking relief on a theory of promissory estoppel. It alleged that it had relied to its detriment on Martin Marietta’s promises to supply all rock on numerous Georgia Department of Transportation contracts.

Martin Marietta moved to dismiss the amended counterclaim as Douglas Asphalt Company had not obtained leave of court before filing it. Douglas Asphalt Company then moved for leave to file its amended counterclaim.

In brief orders, the trial court granted Martin Marietta’s motion for summary judgment on Douglas Asphalt Company’s counterclaim and its motion to dismiss the amended counterclaim. After Martin Marietta dismissed its pending claims on the suit on account, Douglas Asphalt Company filed this appeal.

2. Summary judgment.

On summary judgment, Martin Marietta, which would not bear the burden of proof at trial on Douglas Asphalt Company’s counterclaim,

need not affirmatively disprove [Douglas Asphalt Company’s] case; instead, the burden on [Martin Marietta on summary judgment] may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support [Douglas Asphalt Company’s] case. If [Martin Marietta] discharges this burden, [Douglas Asphalt Company as] the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

BAC Home Loans Servicing v. Wedereit, 297 Ga. 313, 316 (773 SE2d 711) (2015) (citation omitted).

Here, Douglas Asphalt Company alleged an unspecified number of breaches of contractual terms relating to seven particular projects. It argues that two different kinds of contracts between Martin Marietta and Douglas Asphalt Company governed the seven projects. The first kind of contract was a job requirements contract, in which Martin Marietta would submit a quotation to supply the materials for a specific job. According to Douglas Asphalt Company, if Douglas Asphalt selected Martin Marietta as a supplier, then Martin Marietta would prepare a sales order and occasionally send an acknowledgment of order to Douglas Asphalt Company for its files. Douglas Asphalt Company contends that the Crisp/Turner, Bacon/ Ware, Appling, Appling/Wayne, and Barco-Duval projects at issue in this case were governed by this type of job-specific agreement.

The second kind of contract, according to Douglas Asphalt Company, was a “plant requirements agreement.” Under this type of agreement, Martin Marietta would provide Douglas Asphalt Company with a quotation for the price per ton of material from its quarries for a certain period of time. According to Douglas Asphalt Company, the Brantley County and Monroe County projects at issue in this case were governed by this type of agreement.

Douglas Asphalt Company argues that both kinds of agreements are evidenced by two types of documents: the quotation that Martin Marietta would provide to Douglas Asphalt Company and either a sales order or acknowledgment of order that Martin Marietta would supply once Douglas Asphalt Company had accepted the quotation. It argued that under OCGA § 11-2-309, Martin Marietta had to deliver the material within a reasonable time. It also argued that the parties’ course of conduct established that a reasonable delivery time was one week.

To discharge its burden on summary judgment, Martin Marietta pointed out by reference to the documents in the record that there was an absence of evidence of any contracts relating to the seven projects at issue. Martin Marietta observed that in response to its request for documents evidencing the parties’ agreements, Douglas Asphalt Company produced in discovery more than 100 quotations and sales orders. But, Martin Marietta noted, Douglas Asphalt Company failed to link the quotations and sales orders to any of the seven projects for which it sought damages.

Undoubtedly the parties had a contractual relationship stemming from the open account/line of credit agreement upon which Martin Marietta initially filed suit. But Douglas Asphalt Company’s breach of contract claim depends upon evidence that Martin Marietta violated the contractual terms governing the seven projects at issue. “[A]s the party alleging that a contract exists, [Douglas Asphalt Company would have] the burden of proving its existence and its terms.” Swanstrom v. Wells Fargo Bank, 325 Ga. App. 743, 744 (2) (754 SE2d 786) (2014) (citation and punctuation omitted). Douglas Asphalt Company alleged that Martin Marietta was required to provide aggregate material within a specific schedule, but, on numerous occasions, it had failed to do so. Yet it has failed to point to evidence of the contractual terms imposing the specific schedules, or, in other words, the dates by which Martin Marietta had to deliver the aggregate material for these seven projects. “A contract cannot be enforced if its terms are incomplete, vague, indefinite[,] or uncertain.” Burns v. Dees, 252 Ga. App. 598, 601-602 (1) (a) (557 SE2d 32) (2001) (citation and punctuation omitted). And although

some details might be supplied under the doctrines of reasonable time or reasonable requirements[,] . . . indefiniteness [is] not cured [where] the agreement relied upon was so vague, indefinite and uncertain as to make it impossible for courts to determine what, if anything, was agreed upon, therefore rendering it impossible to determine whether there had been performance.

Jackson v. Williams, 209 Ga. App. 640, 642-643 (1) (434 SE2d 98) (1993) (citations and punctuation omitted) (finding construction agreement unenforceable where there was no agreement regarding the material to use in construction, the precise location of the construction, the time period for construction). Without pointing to evidence of the contractually required delivery dates for the materials for the seven projects, Douglas Asphalt Company cannot show that Martin Marietta failed to deliver the materials in a timely manner; it has not pointed “to specific evidence giving rise to a triable issue.” BAC Home Loans Servicing, 297 Ga. at 316. Douglas Asphalt Company has failed to overcome Martin Marietta’s motion for summary judgment, and the trial court did not err in granting the motion.

3. Amended counterclaim.

Douglas Asphalt Company has not shown that the trial court erred by dismissing its amended counterclaim. OCGA § 9-11-13 (f) provides: “When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” Although Douglas Asphalt Company filed a motion seeking leave to amend the counterclaim, it did not obtain such leave before filing the amended counterclaim; the record contains no ruling on the motion. The trial court, therefore, did not err in dismissing the amended counterclaim. Bellamy v. FDIC, 236 Ga. App. 747, 749-750 (c) (512 SE2d 671) (1999) (defendant’s new theories were additional grounds for compulsory counterclaim and, thus, were new counterclaims which were barred without first obtaining leave of court); Cornelius v. Auto Analyst, 222 Ga. App. 759, 762 (3) (476 SE2d 9) (1996) (OCGA § 9-11-13 (f) applies to both compulsory and permissive counterclaims; although defendant sought leave to file additional counterclaims, he did not obtain leave before filing them, so trial court properly dismissed them); Conerly v. First Nat. Bank of Baldwin County, 209 Ga. App. 601, 603-604 (3) (434 SE2d 143) (1993) (“The second counterclaim filed here involved totally new theories” based upon the same facts as the underlying complaint and first counterclaim, so defendant had to obtain leave before filing it.).

Judgment affirmed.

McMillian, J., concurs. Miller, P. J., concurs in judgment only.

Decided November 15, 2016

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellant.

Hun ter, Maclean, Exley & Dunn, Bradley M. Harmon; Walters & Pujadas, Thomas E. Pujadas; The Futch Law Firm, Kenneth E. Futch, Jr.; Hall Booth Smith, An thony A. Rowell, for appellees.