author: Blackwell, Judge.

text:
    A11A1419.
    OUTLAW v. RYE.
    (718 SE2d 905)
   Blackwell, Judge.

Shelby Outlaw is a lawyer, and she represented Brodie Rye in a custody dispute with his ex-wife, Susan. When Brodie failed to pay Outlaw the fees that she apparently had earned, Outlaw attempted, pursuant to OCGA § 15-19-14 (c), to put a statutory attorney’s lien on certain real property in which Brodie then had an interest. Outlaw later filed a petition in Fulton County to foreclose this lien, but by that time, Brodie had conveyed his interest in the property to Susan, and Susan moved to dismiss the foreclosure petition. The court below granted the motion to dismiss, based on its conclusions that the lien does not comply with OCGA § 15-19-14 (c) — because it concerns property that Brodie did not, in fact, recover in the custody proceedings in which Outlaw represented him — and that the lien consequently cannot be enforced. Outlaw now appeals from the dismissal of her foreclosure petition, claiming that the conclusions of the court below are erroneous in several respects. In support of her claims of error, Outlaw relies on the fact that Brodie agreed in his contract with Outlaw that any real property that he then owned would be subject to a lien under OCGA § 15-19-14 (c). For the reasons set out below, we conclude, as the court below did, that the lien does not comply with OCGA § 15-19-14 (c) and is invalid, and we affirm the dismissal of the foreclosure petition.

Because this appeal involves a question of law, we review both the record and the decision of the court below de novo. Atlanta Women’s Health Group, P.C. v. Clemons, 299 Ga. App. 102 (681 SE2d 754) (2009). The facts in this case are undisputed, and the record shows that, pursuant to a final decree of divorce entered in December 2007, Brodie and Susan each was awarded a half interest in the property that later became the subject of the lien, on which their marital residence had been situated. Although Outlaw did not represent either party in the divorce action, Brodie subsequently retained Outlaw to represent him in custody modification proceedings that commenced in March 2008. In connection with this representation, Outlaw and Brodie entered into a written agreement, which provides in relevant part:

You [Brodie] further agree and understand that, upon your failure to execute a promissory note and a security deed or other security interest within the time provided above to secure your unpaid fees, The Outlaw Firm may assert a lien for the remaining balance due the firm on any rights or interest you may have in real property. You agree that, for the purposes of this Representation Agreement, any real or personal property you may have will he deemed to have been recovered as contemplated by OCGA § 15-19-14 in the proceedings undertaken by the Firm on your behalf.

(Emphasis supplied.)

Before the custody proceedings were concluded, Brodie informed Outlaw that he intended to discontinue his payment of the fees that Outlaw apparently had earned. Outlaw filed a motion to withdraw as his lawyer, and after the motion was granted, she filed a statutory attorney’s lien against the property in which he had a half interest. The lien reflects that Brodie is indebted to Outlaw in the principal amount of $21,923.08 for services rendered and expenses incurred in the custody proceedings and also owes her interest on this principal, which accrues, Outlaw claims, at a rate of 18 percent annually.

Brodie and Susan later settled their custody dispute, and they entered into a settlement agreement that addressed not only custody, but some property as well. Pursuant to the terms of the settlement agreement, Susan paid $50,000 to Brodie, and Brodie gave Susan a quitclaim deed, in which he conveyed his half interest in the real property at issue to Susan. Nearly two years after she filed a lien against this property, Outlaw filed a petition to foreclose the lien. Susan appeared at the foreclosure hearing and filed a motion to dismiss the petition. The court below granted the motion to dismiss, and Outlaw now appeals.

1. We find no merit in the first claim of error, that the court below erred when it found that Outlaw could not properly assert a lien under OCGA § 15-19-14 (c) against real property that Brodie did not, in fact, recover in the proceeding in which she represented him. Our Supreme Court has long held that, because the statute concerning attorney’s liens is in derogation of the common law, it must be strictly construed. Woodward v. Lawson, 225 Ga. 261, 262 (2) (167 SE2d 660) (1969). For this reason, Georgia courts have steadfastly refused to apply the statute “to any factual situation not strictly within its wording.” Id.; see also Peoples v. Consolidated Freightways, 226 Ga. App. 265, 266 (1) (486 SE2d 604) (1997) (statutory attorney’s lien may not attach, under OCGA § 15-19-14 (c), “to property beyond the ambit of the statute”). By its clear and unambiguous terms, the statute permits a lawyer to assert a statutory lien only against property recovered by the lawyer for her client. See OCGA § 15-19-14 (c) (“attorneys at law shall have a lien for their fees on the property recovered”). Put another way, the lien that is authorized by the statute “attaches to the fruits of the labor and skill of the attorney,” and it properly can be directed only to properties that are among those “fruits.” See Carragher v. Potts, 300 Ga. App. 735, 736 (1) (a) (686 SE2d 348) (2009) (punctuation omitted).

The statute does not authorize the lien that Outlaw sought to foreclose. It is undisputed that Outlaw did not represent Brodie in his divorce, and the half interest in the property at issue that he secured in the settlement of the divorce is not, therefore, among the fruits of the labor and skill of Outlaw. To the contrary, Outlaw only represented Brodie in a subsequent custody dispute, and Brodie ultimately surrendered his half interest in the property in the settlement of that dispute. The court below correctly concluded that the lien in this case was not authorized by OCGA § 15-19-14 (c) and is, therefore, invalid. See Woodward, 225 Ga. at 262 (2) (refusing to enforce statutory attorney’s lien against real property that lawyer did not recover for his client, notwithstanding that lien was for fees that lawyer earned by doing title work on the property); Gutter-Parker v. Pridgen, 268 Ga. App. 205, 205 (601 SE2d 707) (2004) (lawyer who represented homeowners in a lawsuit for money damages against the firm that built their house was not entitled to enforce a lien under OCGA § 15-19-14 (c) against house because, although the lawsuit related to the house, the lawsuit did not seek recovery of the house).

2. We also find no merit in the claim that the court below erred when it determined that a lawyer and her client cannot properly render enforceable a statutory lien that is not authorized by OCGA § 15-19-14 (c) simply by agreeing, at the time the representation commences, that any real property then owned by the client will be deemed to have been recovered by the lawyer for the client, when the property is not, in fact, recovered by the lawyer for her client. As Outlaw conceded at oral argument, the authority of a court to enforce a statutory lien under OCGA § 15-19-14 must be drawn from the statute itself. As we discussed in Division 1 above, however, the statute does not authorize any court to enforce a lien against property that was not actually recovered for the client by his lawyer, either by judgment, decree, award, settlement, or otherwise. Carragher, 300 Ga. App. at 736 (1). And despite her arguments to the contrary, we cannot agree with Outlaw that a statute can be effectively amended by a contract between private parties, so as to confer a power upon a court that the statute itself does not confer.

In reaching this conclusion, we understand all too well the difficulties that lawyers sometimes encounter in their efforts to secure the payment of fees that they have rightfully earned. And we acknowledge that a lawyer representing a client in a proceeding in which no money or property is sought or recovered — in a proceeding, for instance, merely to determine who ought to have custody of a child — may face unique problems when he attempts to secure the payment of the earned fees. Although lawyers representing clients in proceedings in which no money or property is recovered cannot properly resort to a statutory lien under OCGA § 15-19-14 (c), we suppose that certain other liens recognized in our existing law might be available to such lawyers. See, e.g., Routon v. Woodbury Banking Co., 209 Ga. 706, 708 (75 SE2d 561) (1953) (“equity may enforce liens created by express contracts under proper pleadings, and may protect equitable rights by impressing liens in the absence of a contract”); Country Greens Village One Owner’s Assn. v. Meyers, 158 Ga. App. 609, 611-612 (3) (281 SE2d 346) (1981) (“our Supreme Court has held that ‘a special lien on specific property may be decreed whenever under the rules of equity the circumstances require this remedy’ ”) (citation omitted). We need not answer that question today, however, because Outlaw specifically seeks to enforce a statutory lien pursuant to OCGA § 15-19-14 (c). We decide only that Outlaw is not entitled to enforce the specific statutory lien that she sought below to foreclose, and we affirm the judgment below.

Decided November 15, 2011

Shelby A. Outlaw, Wayland R. Walker, Jr., for appellant.

Callner, Portnoy & Strawser, Charla E. Strawser, for appellee.

Judgment affirmed.

Barnes, B J., and Adams, J., concur.

         OCGA § 15-19-14 (c) provides, in relevant part: “Upon all actions for the recovery of real or personal property and upon all judgments or decrees for the recovery of the same, attorneys at law shall have a lien for their fees on the property recovered superior to all liens except liens for taxes . . . .”

       Outlaw apparently did not seek to place a lien against the $50,000 that Susan paid Brodie in the settlement ’of the custody dispute.

       Throughout this litigation, Outlaw consistently has identified her lien as a statutory lien under OCGA § 15-19-14 (c), and she never has contended that her lien is anything else. Moreover, Outlaw conceded at oral argument that she relies in this case exclusively on the power conferred upon the courts by the statute to enforce attorney’s liens.

       Because we conclude that the contract between Outlaw and Brodie, even if it were enforceable, would not render her statutory lien enforceable, we need not consider the claim that the court below erred when it determined that the contractual agreement as to a statutory attorney’s lien is void because it is contrary to public policy.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A11A1572.
    JEROME ROAD, LLC et al. v. FIRST CITIZENS BANK AND TRUST COMPANY, INC.
    (718 SE2d 913)
   McFadden, Judge.

Jerome Road, LLC and Jonathan W Been appeal the order confirming the sale at foreclosure of certain Fulton County property. They argue that the trial court’s order must be vacated because it failed to include findings of fact and conclusions of law. Because Jerome Road and Been did not request findings of fact and conclusions of law before the trial court entered judgment, the trial court was not required to include them in its order. We therefore affirm.

First Citizens Bank and Trust Company filed an application for confirmation of a foreclosure sale of certain property that secured Jerome Road’s indebtedness to First Citizens. First Citizens alleged that Been guaranteed the indebtedness. After conducting a hearing, the trial court entered an order confirming the foreclosure sale. The order consists of two paragraphs, the first of which sets forth details about the hearing on First Citizens’ petition. The second paragraph states that it is:

ORDERED, that the notices, advertisements and regularity of the foreclosure sale conformed to Georgia law and the fair market value of said property on the date of the foreclosure sale was $850,500.00, and therefore, First Citizens may pursue a deficiency judgment against the respondents.

Fifteen days after entry of the order, Jerome Road and Been moved for the court to set forth its findings of fact and conclusions of law. The record contains no order resolving the motion. Fifteen days after filing the motion, Jerome Road and Been filed a notice of appeal.

Jerome Road and Been’s sole enumeration of error is that the trial court’s confirmation order violates Georgia law because it does not include specific findings of fact and conclusions of law. In support of their contention that such findings and conclusions are mandatory in confirmation orders, Jerome Road and Been rely on three cases: Lanier v. Citizens State Bank, 186 Ga. App. 395 (367 SE2d 585) (1988); Mathis v. Citizens DeKalb Bank, 157 Ga. App. 693 (278 SE2d 500) (1981); and Pruitt v. First Nat. Bank of Habersham County, 142 Ga. App. 100 (235 SE2d 617) (1977).

The cases of Mathis and Pruitt, however, were decided under the predecessor to OCGA § 9-11-52 (a) before that Code section’s extensive amendment in 1987. Mathis, 157 Ga. App. at 693; Pruitt, 142 Ga. App. at 100-101 (1). Lanier, though decided after the amendment, relied on Mathis and Pruitt. See Lanier, 186 Ga. App. at 395-396. “Under the former statute, entry of findings and conclusions was required, unless waived by the parties. See Ga. L. 1987, pp. 1057-1058, § 1.” Poor v. Leader Fed. Bank &c., 221 Ga. App. 889 (1) (473 SE2d 563) (1996). Under the current version of OCGA § 9-11-52 (a), only if a party in a nonjury trial requests findings and conclusions before entry of judgment is the inclusion of findings and conclusions mandatory. If the party makes the request after judgment, then whether to include findings and conclusions is within the court’s discretion. OCGA § 9-11-52 (c); Greene County v. North Shore Resort at Lake Oconee, 238 Ga. App. 236, 241 (2) (517 SE2d 553) (1999). To the extent Lanier, 186 Ga. App. 395, holds that a trial court must include findings of fact and conclusions of law in a confirmation order absent a party’s request before entry of judgment, it is hereby overruled.

Decided November 15, 2011.

Knight Johnson, James M. Johnson, Stephanie A. Everett, for appellants.

Busch, Slipakoff & Schuh, Mathew A. Schuh, Jason B. Godwin, for appellee.

Jerome Road and Been did not request findings of fact and conclusions of law under OCGA § 9-11-52 (a) before the trial court entered its confirmation order. Instead they made their request 15 days after entry of the judgment. Therefore, the trial court was not required to include findings of fact and conclusions of law in its confirmation order, and we affirm.

Judgment affirmed.

Mikell, C. J., Smith, P. J., Barnes, P. J., Miller; P J., Phipps, P J., Andrews, Ellington, Adams, Doyle, Blackwell and Dillard, JJ., concur.


author: Ellington, Judge.

text:
    A11A1784.
    DOUGLAS v. THE STATE.
    (718 SE2d 908)
   Ellington, Judge.

A Clayton County jury found Joel Douglas guilty of two counts of aggravated assault, OCGA § 16-5-21 (a); three counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106 (b); and five counts of false imprisonment, OCGA § 16-5-41 (a). Douglas appeals from the order denying his motion for a new trial, contending that the evidence was insufficient to support his convictions and that the trial judge erred in re-seating a juror and in admitting photographic evidence. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following relevant facts. During the evening of March 22, 2008, several men robbed the Clayton Food Express convenience store in Clayton County, taking about $60,000. The victims, two store employees and three customers, testified that the robbers wore sunglasses, ball caps, and gloves. The robbers, who were armed with guns, told the victims to get on the floor or they would be shot. One employee was beaten, kicked, tied up, and forced to the floor at gunpoint. One of the robbers took her wallet, cell phone, and car keys. Another employee was forced to get down on the floor. Because she was pregnant, the employee begged not to be kicked. The robber pointed a gun at her and said: “[D]on’t look at me, I know who you are.”

One of the store customers, who was playing a video game when the robbers entered the store, testified that one of the robbers pointed a gun at him, forced him to the floor next to an employee, and stole his wallet. Two other customers entered the store while the robbery was in progress. These customers were forced to the floor at gunpoint, tied up, and threatened. None of the victims was able to identify Douglas as one of the robbers. One victim, however, identified Douglas’ co-defendant, Demario Mormon, at trial. Several of the victims testified that the robbers were speaking to each other in a foreign language.

Using the video-recording taken from the store’s surveillance cameras, the police generated several photographs of the robbers and a photograph of the getaway car, a white Isuzu Trooper. When the local news media broadcast the images to the public, a man recognized one of the robbers as his employee, Carlos Hines, and contacted the police. The man testified that Hines speaks Spanish and drives a white Isuzu Trooper. Based on information gathered from an interview with Hines, the police developed a list of suspects that included Douglas, Lorenzo “Lolo” Buchanan, Alphonso Boyce, Armondo Boyce, and Mormon. The detective obtained a copy of Douglas’ driver’s license photograph and compared it to the surveillance photographs of one of the robbers. The Boyce brothers pleaded guilty to the crimes.

Hines testified at trial that he had known Douglas, Buchanan and the Boyce brothers from the neighborhood and that they had gone to parties together. He said that he has conversed with Douglas in Spanish. He testified that, before the robbery, Douglas, Buchanan (whom he knew as “Lolo”), and the Boyce brothers came to his house to visit. Both of the Boyce brothers, with the assistance of a Spanish interpreter, were called as witnesses, but refused to implicate their co-defendants at trial. Armondo Boyce, however, admitted that five men participated in the robbery, including himself, his brother, and three others whom he did not know. The State showed, however, that before he entered his guilty plea, Armondo Boyce identified one of his fellow robbers as “Lolo.”

The State introduced into evidence a copy of the surveillance video and the still images generated from the video, four of which allegedly showed Douglas, who was wearing a white cap, at the scene of the robbery. The State introduced the booking photographs of Douglas, Buchanan, Mormon, and the Boyce brothers. The State also produced a certified copy of Douglas’ driver’s license photograph and a photograph of Douglas taken at work, which shows him wearing a white cap.

1. Douglas challenges the sufficiency of the evidence against him in only one respect — none of the victims identified him as a participant in any of the crimes alleged in the indictment. Therefore, he contends, his convictions must be reversed. We disagree.

The State’s evidence showed that, just before the armed robbery, Douglas, Buchanan, and the Boyce brothers met at Hines’ house. Shortly thereafter, the Boyce brothers and three other men robbed the Clayton Food Express. The surveillance cameras at the store video-recorded the robbery, the robbers’ faces, and their getaway car. The robbers’ getaway car was identified as belonging to Hines. Hines led the police to other suspects, including Douglas. A copy of the surveillance video, still images taken from the video, and other photographs of Douglas were submitted to the jury. Although no witness positively identified Douglas as a participant in the crimes, the jury was authorized to conclude, based upon this evidence, that Douglas was one of the robbers. As we have explained,

[i]dentity is a question of fact for the jury to decide. . . . [I]t is not beyond the ken of the average juror to decide as a matter of fact whether the identity of a person in a video is the defendant. And in a case in which a robbery of a convenience store was recorded by a surveillance camera, we held that the evidence of identity was sufficient because the jury had the opportunity to examine surveillance camera photographs of the robber and compare them with the defendant as he appeared at trial.

(Citations and punctuation omitted.) Ferguson v. State, 307 Ga. App. 232, 234 (1) (704 SE2d 470) (2010). See also Buice v. State, 289 Ga. App. 415, 417 (1) (657 SE2d 326) (2008) (“[Tjhe jurors were able to determine for themselves whether [the defendant’s] appearance matched that of the perpetrator depicted in the store’s surveillance videotape shown during the trial.”).

Because the evidence adduced was sufficient to allow the jury to identify Douglas as a participant in the crimes beyond a reasonable doubt, this claim of error is without merit.

2. Douglas contends the trial court erred in re-seating a juror that he had used a peremptory strike to remove. Specifically, Douglas argues that the trial court erred when it granted the State’s McCollum motion to re-seat Juror No. 12 on the jury panel. After Douglas and his co-defendants, who are black, used six of eight peremptory strikes against white members of the venire, the State made a motion asserting that the defense had exercised its strikes in a racially discriminatory manner. The judge agreed with the State’s position with respect to Juror No. 12 and ordered that the juror be re-seated on the panel.

In McCollum, the United States Supreme Court held that the equal protection clause prohibits the accused from engaging in purposeful discrimination on the basis of race in the exercise of peremptory strikes. A McCollum challenge triggers a three-step process: (1) the state must make out a prima facie case of racial discrimination; (2) if established, the burden of production shifts to the defendant to come forward with a race-neutral explanation; and (3) if a race-neutral explanation is tendered, the trial court must decide whether the state has proved purposeful racial discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

(Punctuation and footnotes omitted.) Thomas v. State, 299 Ga. App. 235, 236 (682 SE2d 325) (2009).

In evaluating the proffered race-neutral explanation, “the trial court must ultimately decide the credibility of such explanation[.]” (Citation omitted.) Stokes v. State, 281 Ga. 825, 829 (3) (642 SE2d 82) (2007). “[Ajlthough a trial judge must accept a facially race-neutral explanation for purposes of determining whether the proponent has satisfied his burden of production at stage two, this does not mean that the judge is bound to believe such explanation at stage three.” (Emphasis omitted.) McKenzie v. State, 227 Ga. App. 778, 779 (1) (490 SE2d 522) (1997). “[A] trial court’s determination of a McCol-lum challenge rests largely on assessing the attorney’s credibility and state of mind and therefore lies peculiarly within the province of the trial judge.” (Punctuation and footnote omitted.) Hicks v. State, 281 Ga. App. 217, 219 (2) (635 SE2d 830) (2006). Accordingly, “where, as here, racially-neutral reasons are given, the ultimate inquiry for the trial court is not whether counsel’s reasons are suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not race-based.” (Citation and punctuation omitted.) Smith v. State, 264 Ga. 449, 454 (4) (448 SE2d 179) (1994). Because the third step of the McCollum procedure requires the trial court to act as the trier of fact, its findings are entitled to great deference and will be affirmed unless clearly erroneous. Stokes v. State, 281 Ga. at 829 (3).

In the instant case, Douglas does not challenge the trial court’s conclusion that the State had made a prima facie showing of racial discrimination. Accordingly, we review the court’s rulings at the second and third steps of the McCollum analysis. The record shows that the court asked the defense to give race-neutral explanations for its strikes. With respect to Juror No. 12, Douglas’ trial counsel stated that he struck the juror because

he indicated that he knows Judge Benefield. And as a result of that, he’s familiar with the . . . power-elite structure in the county, [by] knowing judges. And our concern is that he will give weight and credence to [the trial court’s] rulings against Mr. Douglas and the other defendants in this case, if an objection is overruled and [the juror] may hold that against Mr. Douglas. Also, [the juror] indicated that there was a time when he was called for jury selection and the case stopped . . . because the defendant entered a plea. And so, we’re concerned he may be cynical, as a result of that experience, the process.

After hearing these reasons, as well as the reasons articulated for striking the other jurors, the court heard the State’s argument. The State pointed out that Juror No. 12 said that he had served as a juror in Judge Benefield’s courtroom, not that he knew the judge personally. The State also argued that the reasoning articulated by the defense was pretextual. Douglas’ counsel responded that, because the strikes were motivated by “reasonable and legitimate race neutral explanations,” the court should “allow these strikes to stand.”

The trial court accepted defense counsel’s explanations for two of the six strikes and the State withdrew its McCollum motion as to the other three strikes. With respect to Juror No. 12, however, the court found that the juror “never said anything about knowing Judge Benefield at all.” Rather, the court found that Juror No. 12 “said that he had served on a prior jury and [when he was asked for the name of the judge] ... he just happened to recall that Judge Benefield was the trial judge.” The trial court also found that many jurors on the panel testified that they had served on prior juries “and there was no inquiry about who [the presiding] judge was, whether [the presiding] judge was white or black, whether [the presiding] judge was part of the power structure or not.” The court also noted that Douglas’ belief that Juror No. 12 might be cynical toward the justice system was not a sufficient basis for removing the juror because, “[tjime after time, jurors are brought up and then stand in the hallway and then they are told, well, the defendant plead[ed] guilty, y’all go back downstairs. That happens all the time.” The court found defense counsel’s explanation insufficient and re-seated Juror No. 12.

Decided November 15, 2011

David J. Walker, for appellant.

Implicit in the court’s stated reasons for re-seating Juror No. 12 is a determination that counsel’s explanation lacked credibility. Applying the deferential standard of review, we conclude that the trial court did not clearly err in re-seating Juror No. 12 upon concluding that the State had met its burden of showing that counsel had acted with discriminatory intent in striking that juror.

3. Douglas contends the court erred in admitting into evidence over his hearsay objection and a co-defendant’s confrontation clause objection a copy of Douglas’ driver’s license photograph because the document was not certified. A review of the record, however, reveals that the document was, indeed, properly certified as required by OCGA § 24-7-20. Therefore, the document was admissible in evidence as a public record pursuant to OCGA § 24-3-17 (a), which provides, in relevant part, that a “certified copy of any record of the Department of Public Safety or the Department of Driver Services ... is admissible in any judicial proceedings or administrative hearing in the same manner as the original of the record.” Because the document was a properly certified public record, the trial court was permitted to infer the reliability of any hearsay contained therein and to conclude that no confrontation clause violation had been shown. Shapiro v. State, 233 Ga. App. 620, 622 (3) (504 SE2d 719) (1998) (DPS records “are public records which allow a court to ‘infer reliability when the hearsay falls within a firmly rooted exception to the hearsay rule, such as the public records exception.’ Price [v. State, 269 Ga. 222, 223 (498 SE2d 262) (1998)].”). Consequently, we find no error.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

Tracy Graham-Law son, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

         Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        Georgia v. McCollum, 505 U. S. 42, 59 (IV) (112 SC 2348, 120 LE2d 33) (1992).

       The court permitted the objection of any one defendant to preserve error as to all defendants.


author: Mikell, Judge.

text:
    A11A1059.
    WEST v. DIDURO et al.
    (718 SE2d 815)
   Mikell, Judge.

Shelley West sold her chiropractic practice to Matthew Diduro and Christopher Bragg (hereinafter collectively “Buyers”)- Buyers subsequently defaulted on the promissory note given in connection with the sale, and West sued them on the note, for breach of contract and for other claims. Buyers counterclaimed, and both parties filed motions for partial summary judgment. The trial court denied West’s motion and granted Buyers’ motion in part. Following a jury trial, judgment was entered in favor of West on her claim for conversion of certain accounts receivable; and in favor of Buyers on certain counterclaims and for attorney fees on Buyers’ counterclaim for breach of contract. West appeals from the trial court’s orders on the parties’ motions for partial summary judgment and from the judgment entered following the jury trial. For the reasons set forth below, we affirm in part and reverse in part, and we remand for further proceedings in accordance with this opinion.

As to West’s challenge to the trial court’s adverse rulings on summary judgment, we apply the following standard of review:

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). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record reflects that West operated a chiropractic practice incorporated as Healthsource Chiropractic of Johns Creek EC. (“Healthsource PC”), of which she was sole owner. On March 26, 2008, West sold this practice to Buyers for $185,000, pursuant to a Purchase Agreement executed by the parties that day. The Purchase Agreement provided that $135,000 of the purchase price was to be paid in cash, with the remaining $50,000 to be financed by a promissory note from Buyers to West. Upon execution of the Purchase Agreement, Buyers gave West a promissory note in the amount of $50,000 (the “Note”); however, Buyers tendered at that time only $125,000 of the $135,000 remaining on the purchase price. Buyers apparently made an oral promise to pay the $10,000 shortfall at some later time. As contemplated by the Purchase Agreement, West executed a Non-Compete Agreement in favor of Buyers. When the parties executed the Purchase Agreement, Buyers did not request any stock certificates in Healthsource PC, and no stock certificates were transferred at that time. After this transaction, Buyers took over the operation of the practice but failed to make payments under the Note, which contained an acceleration clause. Buyers also failed to pay the $10,000 shortfall on the purchase price.

Two months after the sale of her business, West filed suit against Buyers, asserting claims for breach of contract based on Buyers’ default under the Note, failure to pay over certain accounts receivable collections, and failure to pay the $10,000 remaining on the purchase price; conversion, based on Buyers’ alleged fraudulent negotiation of checks made out to West; fraud, based on Buyers’ use of tax identification numbers and “approved preferred provider” status, which West alleged belonged to either Healthsource PC or West, in connection with Buyers’ billing various insurance companies; and assault and battery against Diduro, based on an incident alleged to have occurred on April 18, 2008. On July 21, 2008, Buyers answered and asserted counterclaims against West, based on breach of contract, conversion, fraud, defamation, false light, tortious interference with contract, and intentional infliction of emotional distress. On December 29, 2008, Buyers amended their answer to assert failure of consideration as a defense to West’s claim on the Note, based on West’s failure to convey the stock in Healthsource PC when the Purchase Agreement was executed.

West filed a motion for partial summary judgment on the $50,000 Note, which the trial court denied in its order entered April 10, 2009 (the “April 2009 Order”), on the ground that a genuine issue of material fact existed as to whether the Note was void for lack of consideration.

Buyers also moved for partial summary judgment. Their motion was granted in part and denied in part by the trial court’s order entered May 6, 2010 (the “May 2010 Order”). The trial court ruled that the Purchase Agreement unambiguously contemplated a stock sale, as well as an asset sale; that the consideration for the sale was the stock in Healthsource PC; and that the Buyers had not received any stock in Healthsource PC when the Purchase Agreement was signed. Therefore, the court concluded that the Purchase Agreement, Note, and Non-Compete Agreement “were executed and delivered without substantial consideration,” because West had not transferred the Healthsource PC stock certificates to Buyers upon execution of the Purchase Agreement.

In its May 2010 Order, the court granted partial summary judgment to Buyers on the following issues: (1) West’s claim for the $50,000 owing under the Note; (2) West’s claim for the $10,000 shortfall in the purchase price, on the ground that West breached the Purchase Agreement by conveying a DRX unit used in the practice to a third party a few days before the Purchase Agreement was executed on March 26, 2008; (3) West’s claim for conversion of Healthsource PC’s accounts receivable collected after March 26, 2008; and (4) West’s fraud claim, based on her allegation that Buyers improperly used tax identification numbers and “approved provider status” associated with Healthsource PC or West. The trial court also granted summary judgment to Buyers and against West as to their claim that West breached the Purchase Agreement by failing to transfer ownership of the DRX unit. The May 2010 Order denied Buyers’ motion for partial summary judgment as to the following issues, thus reserving them for trial: (1) West’s claim for conversion of Healthsource PC’s pre-March 26, 2008, accounts receivable; (2) West’s claim against Diduro for assault and battery; (3) West’s claim for punitive damages based on the alleged assault and battery; (4) Buyers’ counterclaims against West for defamation and tortious interference with Buyers’ business relationships, based on Buyers’ allegations that West made derogatory statements to third parties; and (5) Buyers’ counterclaim against West based on West’s alleged breach of her agreement in the Purchase Agreement “to create a smooth transition” of the practice.

The case was then tried before a jury, which awarded West $389 on her claim for conversion of pre-March 26, 2008, accounts receivable, but found against West and in favor of Buyers on West’s assault and battery claim. On Buyers’ claim against West for breach of contract, the only issues presented to the jury were the amount of damages owed to Buyers for the breach and the amount of attorney fees Buyers were entitled to recover. On this claim, the jury awarded Buyers $0 in damages and $84,983 attorney fees. The jury awarded Buyers $100,000 on Buyers’ other counterclaims but awarded no punitive damages against West. West appeals from the adverse orders on summary judgment and from the judgment entered on the jury’s verdict.

1. The April 2009 Order. In her motion for partial summary judgment, West sought to recover against Buyers on the Note. Buyers responded, asserting that the Note lacked consideration because West had conveyed the DRX unit to a third party before the execution of the Purchase Agreement and because she had removed certain items from the Healthsource PC offices and she had defamed Buyers after the sale. In its April 2009 Order, the trial court concluded that West was not entitled to judgment on the Note because fact issues remained as to whether it lacked consideration. This ruling was in error, and we reverse.

It is well established that a plaintiff seeking to enforce a promissory note establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.

There is no dispute that Buyers borrowed $50,000 from West to finance their purchase of her chiropractic practice, this debt being evidenced by the Note; that they signed the Note; and that they failed to make payments under the Note. Therefore, West established a prima facie case and was entitled to judgment as a matter of law, unless Buyers established a valid defense.

Buyers interposed the defense of lack of consideration. However, this defense cannot stand. Contrary to the trial court’s ruling, no genuine issue of material fact remained as to whether there was consideration given in exchange for the Note. Abundant evidence in the record showed that, upon execution of the Purchase Agreement, Buyers acquired the chiropractic practice formerly owned and operated by West.

As this Court explained in Greene v. Johnson, the party claiming under a contract has the burden of proving a prima facie case to recover thereunder, but the burden of sustaining the defense of total or partial failure of consideration falls on the one asserting the defense. In that case, the seller of an accounting business attempted to recover for the unpaid balance on two promissory notes given in connection with the sale of the business. The purchaser asserted failure of consideration as a defense, based upon evidence that, after the sale, seller had breached her covenant not to compete. However, as in the case before us, the defense of total failure of consideration was negated by evidence that the purchaser had received the assets of the business — “furniture, fixtures, machines, equipment, supplies and client files.” And where the evidence shows that the failure of consideration “is not total but partial only, the burden devolves upon the defendant to prove the dollar amount of his damages or suffer judgment against him.” In the case before us, Buyers have not shown damages in any amount from the alleged failure of consideration.

The Purchase Agreement in the case at bar did not contemplate a closing to take place in the future. Rather, it served as a record or memorandum of what actually occurred at the March 26, 2008, transaction. Although it contained certain promises of future performance, e.g., West’s promise “to assist in an orderly transition of the practice,” the Purchase Agreement more closely resembled an executed bill of sale for personal property than an executory contract for the sale of a business. It follows that the Purchase Agreement bound West to convey only the assets owned by the practice on March 26, 2008. This Agreement did not restrict, nor was there any other agreement to restrict, her ability to alienate assets before that date. Buyers’ claim that West’s earlier conveyance of the DRX unit somehow breached the not-yet-executed Purchase Agreement thus falls to the ground.

Despite any later quarrels which arose between the parties after the Purchase Agreement was signed, the Note was supported by adequate consideration at the time of its execution, because Buyers took immediate possession of West’s business and began operating it as their own. Thus, the trial court erred in denying West’s motion for summary judgment against Buyers on West’s claim to recover under the Note. West is entitled to immediate judgment on the $50,000 Note pursuant to OCGA § 9-11-54 (b).

2. The May 2010 Order. As to the various rulings entered by the trial court in its May 2010 Order and challenged on appeal, we affirm in part and reverse in part.

(a) The trial court concluded that Buyers were entitled to judgment as a matter of law on West’s claim for recovery under the Note, on the ground that (1) the Purchase Agreement was a contract for the sale of the shares of stock in West’s professional corporation; (2) West had failed to deliver this stock to Buyers; and (3) therefore, there was a failure of consideration for the Note. This ruling was in error, and we reverse.

In the first place, as discussed in Division 1 above, it is clear that the Note was not “executed and delivered without substantial consideration,” contrary to the trial court’s May 2010 ruling. Further, whether the sale was intended to convey assets or stock, Buyers have not proven damages resulting from West’s failure to transfer Healthsource PC stock certificates.

We cannot agree with the trial court that the Purchase Agreement contemplated a sale of stock, rather than an asset sale. Although the Non-Compete Agreement signed by West recites that “Buyers are acquiring all of the outstanding corporate stock held by [West] in [Healthsource PC],” this preamble is mere surplusage.

Shares of stock in a corporation are, of course, not an asset of the corporation; rather, they are an asset of the person or entity that owns the stock. Therefore, West’s promise to transfer assets of Healthsource PC did not imply a promise to transfer her stock in the corporation. And careful perusal of the Purchase Agreement and the Non-Compete Agreement reveals no promise by West to give, furnish, convey, or assign to Buyers any shares of her stock in Healthsource PC. Indeed, Buyers must have been satisfied with whatever West conveyed to them on March 26, 2008, because in exchange they executed a Note for $50,000, as well as paying $125,000 in additional funds, plus giving an oral promise to pay the remaining $10,000 at an unspecified future time. It was only long after West sued Buyers on the Note that they asserted she was in breach for failure to convey stock certificates in Healthsource PC at the time the Purchase Agreement was signed.

(b) The trial court granted partial summary judgment to Buyers on West’s claim for the $10,000 shortfall in the purchase price, reasoning that West failed to convey the DRX unit upon execution of the Purchase Agreement. This ruling was in error, and we reverse. As explained in Division 1 above, West’s conveyance of the DRX unit to a third party prior to execution of the Purchase Agreement did not breach West’s obligations under the Purchase Agreement. Thus, West’s claim for the unpaid portion of the purchase price should have been reserved for trial.

(c) The trial court also erred in summarily adjudicating in favor of Buyers their claim that West breached the Purchase Agreement by failing to transfer ownership of the DRX unit. Neither the Purchase Agreement nor any of the other agreements between the parties imposed any obligation on West to transfer ownership of the DRX unit to Buyers, and the trial court erred in finding otherwise. The DRX unit is not listed on the Equipment List attached to the Purchase Agreement. The Purchase Agreement’s only reference to the DRX unit is found in the recitation concerning purchase price, which requires “$50,000 [of the purchase price] to be used by seller to pay off the existing lease for the DRX unit.” Not a scintilla of evidence in the record indicates that West failed to pay off the indebtedness on the DRX unit.

To be sure, the Purchase Agreement required West to transfer to Buyers all assets of Healthsource PC. But this obligation applied to assets actually owned by the corporation on March 26, 2008, when the Purchase Agreement was signed. By that date, West had already conveyed the DRX unit to a third party, as was her right. If there had been a signed agreement to purchase, with a closing date at a time in the future, then transfers of assets in the interval between the agreement to purchase and the closing might have constituted a breach of contract. But in the case before us, the Purchase Agreement is the complete and entire agreement between the parties, by reason of its merger clause; and as discussed above, this Agreement does not require West to transfer the DRX unit to Buyers. It requires only that West transfer equipment and assets that the business owned on March 26, 2008. Parol evidence of agreements between the parties regarding the DRX unit is not of the slightest probative value in interpreting the Purchase Agreement, which the trial court termed an unambiguous contract. Accordingly, on the remand of this case, the trial court should enter partial summary judgment for West on this issue.

(d) We affirm the trial court’s grant of summary judgment in favor of Buyers as to West’s fraud claims. West alleged that Buyers improperly used tax identification numbers and “approved provider status” associated with Healthsource PC or West in billing for services. To the extent that these items belonged to Healthsource PC and not West personally, West is not the proper party to bring an action for their misuse. Further, under the Purchase Agreement, “all tangible and intangible assets” of the corporation were transferred to Buyers. Therefore, they had the right to use the items at issue.

West asserts that “approved provider status” is based on “credentialing” by the insurance companies and applies to her personally and not to other chiropractors. Even if she is completely correct about this, the harm being done is to the insurance companies, and it is up to them — not West — to seek redress if they object to Buyers’ use of West’s “approved provider status.”

(e) The trial court correctly denied Buyers’ motion for partial summary judgment on their counterclaims against West for defamation and tortious interference with business relations, and these claims were properly reserved for trial.

(f) The trial court erred in reserving for trial Buyers’ claim that West had breached, in the trial court’s words, “the agreement to create a smooth transition.” There was no such agreement. Under the Purchase Agreement, West actually agreed to “remain at the practice without compensation on an as needed basis not to exceed thirty (30) calendar days following the sale of the practice to assist in an orderly transition of the practice.” West’s promise “to assist in an orderly transition” is different from a promise, as stated in the trial court’s order, “to create a smooth transition.” Diduro asserted by affidavit that upon the sale of a chiropractic practice, it was customary for the selling chiropractor to continue to see patients “during the first few weeks” and to introduce them to the new doctor. Such an alleged custom among chiropractors is, of course, irrelevant to a strict legal reading of the Purchase Agreement. Diduro’s further averments that, after West sold the practice, she cancelled her malpractice insurance and occasionally came to the office in inappropriate dress, did not constitute proof that she breached her agreement to “remain at the practice ... on an as needed basis.” The trial court erred in failing to enter judgment sua sponte in favor of West and against Buyers on this claim, and we direct the trial court to enter such an order on remand.

In summary, the only issues properly remaining for determination at trial are West’s claim for the $10,000 shortfall in the purchase price; Buyers’ claims against West for defamation and tortious interference with business relationships; and Buyers’ claim that West breached the Non-Compete Agreement by making disparaging remarks about the new owners to several former patients of the practice.

Decided October 18, 2011

Reconsideration denied November 16, 2011

Albert L. Norton, Jr., for appellant.

John L. G. Herbert, Jr., for appellees.

3. The trial. Because the trial court erred (in part) in its rulings on the parties’ motions for partial summary judgment, the instructions to the jury given at trial and the verdict form provided to the jury also constituted legal error. For example, the jury was instructed that West had breached the contract. That claim remains for jury determination, but only as to West’s possible breach of the Non-Compete Agreement. Because the instructions to the jury and the jury’s verdict form were erroneous, we order a new trial as to the remaining issues. Those issues are enumerated above. In the meanwhile, as soon as the remittitur is received, the trial court will grant judgment to West on the $50,000 Note and make the findings required by OCGA § 9-11-54 (b).

Judgment affirmed in part and reversed in part, and case remanded with direction.

Phipps, P J., concurs. McFadden, J., concurs in judgment only.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citations omitted.) Newton v. Sibley, 273 Ga. App. 343 (615 SE2d 185) (2005), citing Vandegriff v. Hamilton, 238 Ga. App. 603, 604 (519 SE2d 702) (1999). Accord Collins v. Regions Bank, 282 Ga. App. 725, 726 (639 SE2d 626) (2006). See OCGA § 11-3-308 (a), (b).

       See Greene v. Johnson, 170 Ga. App. 760, 761 (318 SE2d 205) (1984) (“A plea of total or partial failure of consideration is a permissible defense to an action founded upon a contract”) (citation and punctuation omitted). Compare Han v. Han, 295 Ga. App. 1, 3-4 (2) (670 SE2d 842) (2008) (transfer of payee’s interest in real property could not serve as consideration for note, where transfer occurred days before execution of note and payee had no interest in real property when note was executed; note was therefore unenforceable for lack of consideration).

       Supra.

       Id.

       Id. at 760.

       Id. at 761.

       (Citation and punctuation omitted.) Id.

       One reason for the existence and popularity of promissory notes is that collecting on them is quicker and easier than collecting on a claim for breach of contract.

       West did not challenge on appeal the trial court’s rulings as to her claims for conversion of accounts receivable, for assault and battery, and for punitive damages on the assault and battery claim.

       Although West, the seller named in the Purchase Agreement, was not the legal owner of Healthsource PC’s assets, as sole shareholder she had the ability to cause the corporate owner to convey the assets to Buyers.

       Buyers’ oral promise to pay the $10,000 shortfall at an unspecified future time, if proved at trial, would be analogous to a promissory note without any specified due date. The absence of a maturity date in a promissory note would not render the note uncertain and vague, but would merely create an obligation due on demand. Mock v. Canterbury Realty Co., 152 Ga. App. 872, 881 (2) (264 SE2d 489) (1980) (whole court). See also OCGA § 11-3-108 (a) (ii) (“A promise or order is ‘payable on demand’ if it . . . does not state any time of payment”).

       See Mock, supra (parol evidence is without probative value to vary terms of an unambiguous written contract). Accord Paige v. Jurgensen, 204 Ga. App. 524, 525 (1) (419 SE2d 722) (1992).

       (Emphasis supplied.)

       West’s claim for conversion of accounts receivable and her claim for assault and battery and punitive damages thereon are no longer pending and will not be heard at the retrial of this case. See footnote 10, supra.

       The verdict form read in part as follows: “As the [trial court] has determined that [West] has breached the contract, and that reasonable attorney’s fees are owed to [Buyers], we, the jury, find that [Buyers] are entitled to recover damages for the breach in the amount of $_and reasonable attorneys’ fees against [West] in the amount of $-” The jury filled in the first blank “$0.00” and the second “$84,983.00.”


text:
    A11A1487.
    THE ESTATE OF MACK PITTS et al. v. CITY OF ATLANTA et al.
    (719 SE2d 7)
   McFadden, Judge.

On June 14, 2007, Mack Pitts was killed while working on a construction project at the Atlanta Hartsfield-Jackson International Airport, when he was struck by a vehicle driven by an employee of A&G Trucking, Inc. In an action separate from the present case, Pitts’s estate through its administratrix and his minor children through their mothers (collectively, “the Estate”) obtained a wrongful death judgment against A&G Trucking and its driver. That judgment exceeded the limits of A&G Trucking’s automobile liability insurance coverage.

The Estate brought the present, separate action against the City of Atlanta (“the City”) and various construction companies associated with the construction project. In the present action the Estate asserts that all of the defendants breached a contractual duty to require that A&G Trucking carry a minimum of $10 million in automobile liability insurance to work on the project. As to the City, the Estate also alleges breach of a ministerial duty to require A&G Trucking to carry insurance in that amount.

The parties filed cross-motions for summary judgment. The trial court denied summary judgment to the Estate and granted summary judgment to the City and the various construction company defendants on the ground that the Estate lacked standing to enforce the contractual minimum insurance requirement because Pitts had not been a third-party beneficiary to the contracts setting forth that requirement. (The court also ruled on motions for summary judgment related to claims between certain of the construction company defendants; those rulings are not at issue in this appeal.)

As detailed below, we find that the trial court erred in granting summary judgment to the defendants and denying summary judgment to the Estate on the breach of contract claim. First, we find that the Estate had standing to enforce the contracts’ minimum insurance provision because Pitts was a third-party beneficiary to the contracts; and we find that, since the Workers’ Compensation Act did not apply to the injury for which damages were sought in this action, the exclusive remedy provision did not bar it. Second, we find that under the unambiguous language of the contracts, A&G Trucking was a “subcontractor” required to have a minimum amount of insurance before working on the construction project, and that the undisputed evidence shows that the defendants breached their duty under the contracts by allowing A&G Trucking to work on the project without that minimum coverage. Finally, we find that the undisputed evidence shows that the Estate was harmed by the breach of contract, because A&G Trucking would have had enough insurance coverage to satisfy the Estate’s judgment if the contract had been performed.

But we find that the trial court did not err in granting summary judgment to the City on the Estate’s claim for breach of a separate ministerial duty. The Estate has pointed to no evidence that would give rise to a private duty, independent of the contracts, under OCGA § 51-1-8.

Accordingly, we reverse the trial court’s grant of summary judgment to the defendants and its denial of the Estate’s motion for summary judgment on the claim for breach of contract, and we affirm the trial court’s grant of summary judgment to the City on the claim for breach of a separate ministerial duty.

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. Hutto v. CACV of Colo., 308 Ga. App. 469 (707 SE2d 872) (2011). We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant. Id.

So viewed, the evidence showed that the City entered into a contract (“the Main Contract”) with a joint venture comprised of defendants Holder Construction Company, Manhattan Construction Company, C. D. Moody Construction Company, Inc., and Hunt Construction Group, Inc. (“the General Contractor”) regarding the construction project. The General Contractor entered into a contract (“the Subcontract”) with a joint venture comprised of defendants Archer Western Contractors, Ltd. and Capital Contracting, Inc. (“the Subcontractor”) to perform work on the project. Pitts was employed by the Subcontractor to work on the project. The Subcontractor contracted with A&G Trucking for trucking and hauling work on the project.

Pursuant to the Main Contract, the General Contractor would serve as construction manager for the construction of the Atlanta airport’s Maynard Holbrook Jackson, Jr., International Terminal, identified in the Main Contract as the “project.” The Main Contract authorized the General Contractor to enter into subcontracts with other entities. The General Contractor was obligated to require any subcontractors to be bound to it by the terms of the Main Contract and to assume to it all obligations and responsibilities which it assumed to the City under the Main Contract. The Main Contract also provided that, “[w]here appropriate, [the General Contractor] shall require each Subcontractor to enter into similar agreements with its Sub-Subcontractor.”

The Main Contract specified that the General Contractor, its subcontractors, and its sub-subcontractors were named insureds under the City’s “Owner’s Controlled Insurance Program,” which was made a part of the Main Contract. The stated purpose of the Owner’s Controlled Insurance Program was “to provide one master insurance program that provides broad coverage with high limits that will benefit all participants involved in the project.” The Main Contract required that the named insureds comply with all requirements of the Owner’s Controlled Insurance Program, which pertinently provided:

Contractor shall, at its own expense, purchase and maintain . . . such insurance as will protect Contractor, Owner, Construction Manager, Design Consultant, and their Trustees, Directors, Officers, Partners, Agents, Representatives, and Employees from claims of the type set forth below: . . . Automobile, Bodily Injury and Property Damage Liability Insurance covering all automobiles, whether owned, non-owned, leased or hired, with not less than the following limits: . . . Bodily Injury - $10,000,000 per person and occurrence!.]

(Emphasis in original.)

Pursuant to the Subcontract, the Subcontractor agreed to be bound by the terms of the Main Contract, to assume toward the General Contractor all duties and obligations that the General Contractor owed the City under the Main Contract, and to bind all lower tier subcontractors to the obligations set forth in the Main Contract and the Subcontract. The Subcontract expressly required the Subcontractor to maintain automobile liability insurance coverage for “[ojwned, hired and non-owned vehicles with a $10,000,000 combined single limit for bodily injury and property damage.”

1. The Estate contends that the trial court erred in granting summary judgment to the defendants and in denying the Estate’s motion for summary judgment on its breach of contract claims. We agree, and accordingly we reverse the trial court’s decision on the breach of contract claims.

“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.” (Citation omitted.) Kuritzky v. Emory Univ., 294 Ga. App. 370, 371 (1) (669 SE2d 179) (2008). The trial court found that the Estate could not show this third element of a breach of contract claim, on the ground that Pitts was not a third-party beneficiary to the contracts and thus the Estate lacked standing. We find, however, that the Estate’s decedent, Pitts, was a third-party beneficiary of the contracts, thereby giving the Estate standing. Alternatively, the defendants contend that the Estate did not have the right to complain about a breach of contract because the exclusive remedy provision of the Workers’ Compensation Act barred the claim, but we find that the exclusive remedy provision does not apply to the type of injury for which the Estate seeks damages in this case. As to the element of breach, the defendants contend that no breach occurred because A&G Trucking was a “supplier” under the contracts exempt from the minimum insurance coverage requirement, rather than a “subcontractor,” but we find that the unambiguous contract language shows otherwise. As to the element of damages resulting from the breach, the defendants present no argument; and we find that there is undisputed evidence of damages.

(a) The Estate’s Right to Complain.

(i) Standing. The defendants argue, and the trial court determined, that the Estate lacked standing to enforce the minimum insurance provision because, as a matter of law, Pitts had not been a third-party beneficiary of the Main Contract or the Subcontract. We disagree.

“The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.” OCGA § 9-2-20 (b). “For a third party ... to have standing to enforce a contract, it must clearly appear from the contract that it was intended for the third party’s benefit.” (Citation and punctuation omitted.) U.S. Foodservice v. Bartow County Bank, 300 Ga. App. 519, 521 (1) (685 SE2d 777) (2009). “A contract is intended to benefit a third party when the promisor engages to the promisee to render some performance to a third person.” (Citation omitted.) Scott v. Mamari Corp., 242 Ga. App. 455, 457 (1) (530 SE2d 208) (2000).

Pitts was not specifically named as a beneficiary in either the Main Contract or the Subcontract, but that fact is not dispositive. Marvel Enterprises v. World Wrestling Federation Entertainment, 271 Ga. App. 607, 615 (5) (610 SE2d 583) (2005). When a “third-party beneficiary [is not] specifically named, the question is whether the parties’ intention to benefit the third party is shown on the face of the contract.” (Citation and punctuation omitted.) Id.

The cardinal rule of contract construction is to ascertain the intention of the parties. OCGA § 13-2-3. “Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. . . . The existence or nonexistence of ambiguity in a contract is a question of law for the court.” (Citation omitted.) Duke Galish, LLC v. Manton, 308 Ga. App. 316, 318-319 (1) (707 SE2d 555) (2011).

The Owner’s Controlled Insurance Program — a part of the Main Contract, which was in turn incorporated into the Subcontract — stated that its purpose was “to provide one master insurance program that provides broad coverages with high limits that will benefit all participants involved in the project.” (Emphasis supplied.) Thus, on its face the Owner’s Controlled Insurance Program unambiguously stated the intent to benefit all participants in the construction project. None of the contracts define the term “participant,” and the trial court held that the Estate had “presented no evidence that the [parties] understood the word ‘participant’ to include specific workers on the site.” But where the language of the contract is unambiguous, the contract provides the only evidence of the parties’ intent. See Duke Galish at 318 (1). “Unambiguous language must be afforded its literal meaning and plain ordinary words given their usual significance.” (Citation and punctuation omitted.) Perkins v. M&M Office Holdings, 303 Ga. App. 770, 773 (695 SE2d 82) (2010). The word “participant” means “one that participates,” and “to participate” means “to take part” or “to have a part or share in something.” Webster’s New Collegiate Dictionary, p. 829 (1981). By working on the construction project as an employee of the Subcontractor, Pitts took part in the project and was a “participant” under the usual significance of that word.

The defendants argue that a later provision in the Owner’s Controlled Insurance Program, which stated that “[t]he [Owner’s Controlled Insurance Program] will be for the benefit of the [City] and Contractors and Subcontractors of all tiers,” (emphasis omitted), restricted the intended beneficiaries to only those entities. But this language did not contain any express restriction, and to construe the contracts in a manner limiting the intended beneficiaries to only some participants in the construction project would render meaningless the earlier provision that the Owner’s Controlled Insurance Program was to benefit all participants in the project. See Kreimer v. Kreimer, 274 Ga. 359, 361 (1) (552 SE2d 826) (2001) (courts should avoid whenever possible construction of contract that renders any portion of it meaningless).

The defendants also point to a provision for workers’ compensation insurance in the Owner’s Controlled Insurance Program as support for their assertion that individual workers could not have been intended third-party beneficiaries to the contracts. As the statement of intent reflects, however, the “purpose of the [Owner’s Controlled Insurance Program] is to provide one master insurance program . . . that will benefit all participants involved in the project.” Contrary to the defendants’ contention, the inclusion of workers’ compensation insurance in this master insurance program does not conflict with an intent that individual workers be third-party beneficiaries of it.

The defendants argue, and the trial court found, that the contracts did not demonstrate an intent to benefit third parties because they did not require any specific undertaking on the third parties’ behalf. See Gay v. Ga. Dept. of Corrections, 270 Ga. App. 17, 23-24 (2) (606 SE2d 53) (2004) (involving contract containing party’s “general promise to abide by state law in providing a safe workplace”). We disagree. The Main Contract set forth the responsibilities of the City and the General Contractor regarding establishing and maintaining the Owner’s Controlled Insurance Program, and the Subcontract contained provisions imposing those responsibilities upon the Subcontractor. These responsibilities included the duty to ensure that subcontractors of any tier complied with the minimum insurance requirements of the Owner’s Controlled Insurance Program before working on the construction project. And as discussed above, the Owner’s Controlled Insurance Program — which was expressly made a part of the Main Contract and consequently also incorporated into the Subcontract — provided that its purpose was to provide one master insurance program that provided coverage that benefitted all participants in the project. Thus, through the Main Contract and Subcontract the defendants promised to provide a specific benefit (ensuring the availability of minimum insurance coverage through the Owner’s Controlled Insurance Program) to a limited group of intended beneficiaries (“all participants involved in the project”). We find this case analogous to Plantation Pipe Line Co. v. 3-D Excavators, 160 Ga. App. 756, 758-759 (287 SE2d 102) (1981), in which we held that a contract that afforded a benefit to a relatively small group of persons rendered those persons third-party beneficiaries.

The defendants argue that the parties nevertheless did not intend the contracts to benefit third parties, based on the following language in the Subcontract: “No Third[-]Party Beneficiaries. Nothing contained in this Subcontract is intended, nor shall be construed, to make any of SUBCONTRACTOR’S lower tier sub-subcontractors or vendors third[-]party beneficiaries of this Subcontract.” This language has no application to Pitts’s status as a third-party beneficiary because Pitts was not a sub-subcontractor or vendor of the Subcontractor; rather, he was the Subcontractor’s employee.

Finally, the defendants point to the general rule in Georgia that liability claimants are not regarded as third-party beneficiaries of insurance policies. See Crisp Regional Hosp. v. Oliver, 275 Ga. App. 578, 583 (4) (621 SE2d 554) (2005). But they have cited no authority for the proposition that this general rule applies where, as here, the contract contains specific language to the contrary. See generally City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 6-7 (3) (421 SE2d 113) (1992) (plaintiff was a third-party beneficiary entitled to judgment as a matter of law on its claim that parties had breached a contract by failing to acquire and maintain insurance, where the contract specified that the insurance was to benefit the plaintiff).

(ii) Exclusive remedy provision. The defendants argue that the exclusive remedy provision of the Workers’ Compensation Act bars the Estate from seeking damages for breach of the contracts. Under that provision, “[t]he rights and the remedies granted to an employee by [the Act] shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death.” OCGA § 34-9-11 (a). But the Act “does not exclude redress in cases to which it is not applicable.” (Citation and punctuation omitted.) Doss v. Food Lion, 267 Ga. 312, 313 (3) (477 SE2d 577) (1996). Thus, “the right to bring an ordinary action for damages is not excluded by the statute as to injuries which do not fall within its terms.” (Citations and punctuation omitted.) Bright v. Nimmo, 253 Ga. 378, 379-380 (320 SE2d 365) (1984).

The Act’s exclusive remedy provision did not prevent the Estate from securing a judgment in its separate, underlying action against A&G Trucking. That provision generally does not exclude claims against third parties. “[N]o employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee.” OCGA § 34-9-11 (a). A&G Trucking was not an employee of Pitts’s employer (the Subcontractor), nor was A&G Trucking a party to a contract under which it provided workers’ compensation benefits to Pitts. Moreover, the Act expressly preserves certain remedies:

When the injury or death for which compensation is payable under [the Act] is caused under circumstances creating a legal liability against some person other than the employer, the injured employee or those to whom such employee’s right of action survives at law may pursue the remedy by proper action in a court of competent jurisdiction against such other persons, except as precluded by Code Section 34-9-11 or otherwise.

OCGA § 34-9-11.1 (a). A&G Trucking was not an “employer” of Pitts as that term is defined at OCGA § 34-9-8, which sets out the duties of statutory employers under the Act. Consequently, the Estate’s claim against A&G Trucking is not among the rights and remedies excluded by OCGA § 34-9-11.

The injury for which the Estate seeks damages in this case is not a physical injury but instead is the loss of access to insurance coverage occasioned by the defendants’ alleged breach of contract. The Estate has already obtained a judgment from A&G Trucking in their separate action against it for damages based on Pitts’s death from the physical injuries he sustained. The defendants have pointed to no authority holding the Workers’ Compensation Act to apply in an action for the type of injury at issue here, and we have found none. Moreover, in Superb Carpet Mills v. Thomason, 183 Ga. App. 554 (359 SE2d 370) (1987), we held that the definition of “injury” under the Workers’ Compensation Act was synonymous with “personal injury,” and that in cases where the Act was held to bar claims not based upon physical injury, it was because the Act provided a specific remedy for the damages sought. Id. at 555. Cf. Crisp Regional Hosp., supra at 579-583 (1)-(4) (court did not consider whether Workers’ Compensation Act barred employee’s contract claim against employer hospital which had failed to purchase insurance for physician alleged to have negligently treated employee’s on-the-job injury; in contrast, court did hold that Act barred employee’s tort claims against employer).

The Estate’s claim in this case seeks damages for breach of contract, not personal injury, and the Workers’ Compensation Act provides no specific remedy for the damages sought by the Estate. See generally OCGA § 34-9-11.1. Accordingly, the Act is not applicable to the Estate’s breach of contract action, and we find no merit in the defendants’ contention that the Act’s exclusive remedy provision bars the action.

(b) Breach. The Main Contract obligated the City to “maintain the required and necessary [Owner’s Controlled Insurance Program] policies” and to “procure, pay for and administer the [Owner’s Controlled Insurance Program].” It obligated the General Contractor and any subcontractors or sub-subcontractors to “comply with all requirements of the [Owner’s Controlled Insurance Program],” and the General Contractor was prohibited under the Main Contract from commencing any work on the construction project or allowing any subcontractor or sub-subcontractor to commence work on the project until the requirements were met and approved by the City. The Subcontract obligated the Subcontractor to bind all lower-tier subcontractors to the obligations set forth in the Main Contract.

It is undisputed that A&G Trucking did not have the minimum automobile liability insurance of $10 million when it worked on the construction project. The defendants argue, however, that A&G Trucking was not subject to this minimum insurance requirement because it was not a “subcontractor” but merely a “supplier” under the Main Contract, which excluded suppliers from the Owner’s Controlled Insurance Program requirements.

The Main Contract contained definitions of “supplier” and “subcontractor” that were incorporated by the Subcontract and thus were applicable to A&G Trucking. The Main Contract defined “supplier” as a person or organization contracted “to supply materials or equipment needed for the completion of the [construction]. ’ ’ Under the terms of its contract with the Subcontractor, however, A&G Trucking agreed to do more than simply supply materials and equipment to the construction site; it contracted to “provide and furnish all labor, materials, tools, supplies, equipment, services, facilities, supervision, and administration necessary or incidental to properly complete performance ... of the following work: Trucking and Aggregate Hauling.” (Emphasis supplied.) Rather than a “supplier,” A&G Trucking fell within the Main Contract’s definition of “subcontractor”: a person or organization contracted “to perform any of the [construction] at the site.” Although the defendants point to evidence extrinsic to the contracts to argue that the minimum insurance requirements nevertheless did not apply to A&G Trucking, such evidence cannot be used to vary the unambiguous terms of the contracts. Simpson v. Pendergast, 290 Ga. App. 293, 296 (1) (659 SE2d 716) (2008).

Accordingly, the undisputed evidence shows that the defendants breached their contractual duties regarding the Owner’s Controlled Insurance Program by allowing A&G Trucking to work on the construction project without the required minimum insurance coverage.

(c) Resultant Damages. The defendants do not contest that, had A&G Trucking been required to obtain $10 million in automobile liability insurance coverage before working on the construction project, it would have had enough insurance to satisfy the Estate’s judgment against it. The undisputed evidence shows that the Estate was harmed by the defendants’ breach of contract. See OCGA § 13-6-2 (“Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.”); Wilks v. Overall Constr., 296 Ga. App. 410, 413 (1), n. 7 (674 SE2d 320) (2009) (measure of damages for breach of contract is amount that will compensate injured person for loss which fulfillment of contract would have prevented, such that injured person is placed, so far as is possible, in position he would have been in had contract been performed).

2. The Estate asserted a separate claim against the City for breach of a duty to ensure all contractors and subcontractors maintained the amounts of insurance required by the Owner’s Controlled Insurance Program. The only source for this duty cited by the Estate in its appellate brief is OCGA § 51-1-8, which pertinently provides that “[pjrivate duties may arise from . . . relations created by contract, express or implied.” But not all breaches of contract are also independent torts. See Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587) (1973). A private duty arising from a contractual relationship under OCGA § 51-1-8 must exist independent of the contract. See Brookview Holdings v. Suarez, 285 Ga. App. 90, 94 (1) (645 SE2d 559) (2007). “[Ajbsent a legal duty beyond the contract, no action in tort may lie upon an alleged breach of a contractual duty.” (Citation, punctuation and footnote omitted.) Fielbon Dev. Co. v. Colony Bank, 290 Ga. App. 847, 855 (3) (660 SE2d 801) (2008). The Estate has pointed to no evidence that the City owed Pitts any duty independent of the contracts. And because there is no evidence that an independent duty existed, we do not reach the Estate’s contention that the independent duty was ministerial rather than discretionary in nature.

Decided October 5, 2011

Reconsiderations denied November 16, 2011

Butler, Wooten & Fryhofer, James E. Butler, Jr., Joel O. Wooten, Jr., Matthew E. Cook, Alan J. Hamilton, Lawson, Davis, Pickren & Seydel, James B Sneed, for appellants.

Swift, Currie, McGhee & Hiers, Stephen M. Schatz, Steven J. DeFrank, Hall, Booth, Smith & Slover, James H. Fisher II, Denise W. Spitalnick, Kawania B. James, Casey Gilson, Robert P. White, Carlton Fields, Walter H. Bush, Jr., Christopher B. Freeman, for appel-lees.

The trial court did not err in granting summary judgment to the City on this claim.

Judgment affirmed in part and reversed in part.

Smith, B J., and Mikell, J., concur.