author: ANDREWS, Presiding Judge.

text:
    A13A1254.
    DODD v. THE STATE.
    (752 SE2d 29)
   ANDREWS, Presiding Judge.

Following a jury trial, William Dodd appeals his conviction for possession of methamphetamine with the intent to distribute. He contends the evidence was insufficient to sustain his conviction and the State failed to prove venue beyond a reasonable doubt. He further contends the trial court’s charge on similar transactions was too broad and misstated the law and the trial court erred by admitting evidence of a similar transaction. Finally, Dodd contends his trial defense counsel was ineffective for failing to object to the court’s instruction on similar transactions. Because we find that the charge on similar transactions substantially expands the limited purposes for which similar transaction evidence can be used, we must reverse Dodd’s conviction.

1. Dodd alleges the evidence was insufficient to convict him of possession of methamphetamine with the intent to distribute because no direct evidence showed that Dodd intended to sell the methamphetamine found in the Gatorade cap seized in his car. Dodd contends the State had the burden of showing that the circumstantial evidence excluded every reasonable hypothesis except that of Dodd’s guilt of intending to distribute the methamphetamine, and it failed to carry this burden. See Driscoll v. State, 295 Ga. App. 5, 7 (1) (a) (670 SE2d 824) (2008).

When this Court reviews the sufficiency of evidence, “the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Dean v. State, 273 Ga. 806, 806-807 (1) (546 SE2d 499) (2001). We review the evidence in the light most favorable to the verdict, giving deference to the jury’s determination as to the proper weight and credibility to be given. Id. at 807 (1). It is the function of the jury, not an appellate court, to assess the credibility of the witnesses, to resolve any conflicting evidence, and to determine the facts. Butler v. State, 273 Ga. 380, 382 (1) (541 SE2d 653) (2001). If competent evidence exists, though contradicted, to support the facts necessary to prove the State’s case, we will not reverse the jury’s verdict. Childress v. State, 251 Ga. App. 873, 876 (2) (554 SE2d 818) (2001).

Viewed in the light most favorable to the verdict, the evidence showed that Dodd was stopped by a deputy sheriff because the passenger in Dodd’s car was not wearing a seat belt. After he returned to his car to check Dodd’s and his passenger’s names, the deputy saw the passenger throw something out of his window that was like a “puff of cloudy smoke . . . like a white, powdery looking substance just went into the air and just disappeared.” The deputy removed the passenger from the car and, after learning he had an outstanding warrant, placed the passenger under arrest.

Based upon Dodd’s consent to search his car, the deputy searched the car and found a Gatorade bottle cap containing a substance later determined to be methamphetamine. The deputy also found a plastic baggy containing residue of a crystal substance. The deputy testified that the baggy was a “corner baggy” of the type typically used to package drugs. After the deputy also found digital scales with a crystal substance on its face, Dodd said that he would beat the charge and that he deals jewelry on the side. Neither the crystal substance in the bag nor the crystal substance on the scales was tested for the presence of methamphetamine.

The State also presented evidence of two similar transactions. One involved Dodd’s guilty plea to possession of a bag of methamphetamine that was found in his car after a traffic stop in Fannin County, and the other, from Gilmer County, arose from drugs seized during the search of Dodd’s home. An officer testified that during the search, he found several corner cut baggies containing methamphetamine, different prescription pills, scales, and a ledger containing numbers and quantities, which in accordance with the officer’s expertise in drug-related crime, related to the drug dealing business.

The Fannin County similar transaction resulted from an incident in which Dodd’s car was stopped for a suspected window tint violation. During the search of the car, a bag of methamphetamine was found in the driver’s side door. Dodd pled guilty to possession of methamphetamine.

“Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.” (Citations omitted.) Haney v. State, 261 Ga. App. 136, 138 (1) (581 SE2d 626) (2003).

[(Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law. It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.

(Citations and punctuation omitted.) Brooks v. State, 281 Ga. 514, 515-516 (1) (640 SE2d 280) (2007).

We conclude that the jury rationally could have found from the evidence discussed above, both direct and circumstantial, that every reasonable hypothesis was excluded except that Dodd possessed the methamphetamine with the intent to distribute it, and the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Dodd was guilty of the offense of which he was convicted. Jackson v. Virginia, supra.

2. Dodd contends the trial court’s initial charge on similar transactions misstated the law and was overly broad. We agree. Although objecting to the charge on other grounds, Dodd’s trial defense counsel did not object on the ground that the charge was a misstatement of the law which Dodd now asserts on appeal.

When a party fails to object to a jury charge or the omission of a charge during trial but raises the issue on appeal, this Court reviews the charge for plain error. The proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.

(Citations and punctuation omitted.) Simmons v. State, 291 Ga. 705, 712 (9) (b) (733 SE2d 280) (2012). Therefore, even in the absence of a proper objection below, we would ordinarily consider the issue which Dodd raises on appeal for plain error. Because, however, Dodd also has challenged the performance of his defense counsel for failing to object to the charge, we must consider whether counsel’s failure to object to the charge constituted ineffectiveness of counsel.

Under our law,

[t]o prevail on a claim of ineffective assistance, a defendant must show that counsel rendered deficient performance and that actual prejudice resulted. Counsel are strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and counsel’s performance is evaluated without reference to hindsight. A petitioner has suffered actual prejudice only where there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Ineffective assistance claims are mixed questions of law and fact. We accept the [trial] court’s findings of fact unless clearly erroneous and independently apply the law to those facts.

(Citation and punctuation omitted.) Head v. Hill, 277 Ga. 255, 266 (VI) (587 SE2d 613) (2003). Further, when considering a claim of ineffectiveness, a critical distinction exists between inadequate preparation and unwise trial strategy. Hudson v. State, 250 Ga. 479, 486 (8) (299 SE2d 531) (1983). Especially in matters of trial tactics, a Sixth Amendment claim cannot be judged by hindsight or result. Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998). In addition to establishing that his counsel’s performance was deficient for failing to object to the charge given, Dodd’s “burden is to show only ‘a reasonable probability’ of a different outcome, not that a different outcome would have been certain or even ‘more likely than not.’ [Cit.]” Schofield v. Gulley, 279 Ga. 413, 416 (I) (A) (614 SE2d 740) (2005).

Although Dodd requested the pattern jury charge on similar transactions, at the time the evidence was admitted the trial court charged the jury on this issue as follows:

All right, ladies and gentleman, we’re going to go into some evidence that sometimes evidence, this certain type of evidence, is admitted for a limited purpose. Such evidence may be considered by you, the jury, for the sole issue or the purpose to which the evidence is limited, not for any other purpose.
The law provides that evidence of other offenses of this defendant that are similar in terms of his bent of mind, course of conduct, and motive to the offense for which the defendant is on trial may be admissible and may be considered for the limited purpose of showing, if it does, the state of mind, bent of mind, course of conduct, and motive of the individual and the knowledge and the intent of the defendant and the crimes charged in the case now on trial.
Such evidence, if any, may not be considered by you for any other purpose.
The defendant is on trial for the particular offense charged in the bill of indictment only. The Court does not express any opinion as to whether the defendant has had any other offenses. This is a matter solely for your determination. Before you may consider evidence of other similar offenses or transactions, you must be satisfied that this defendant is the same person to whom the evidence of similar offenses or transactions pertains.
If you believe such has been proven, however, you are strictly limited in your consideration of the evidence as to his state of mind, knowledge, intent, course of conduct and motive as to the element of the offenses charged in this indictment.

(Emphasis supplied.)

Dodd contends that this charge is nearly identical to the charge in Rivers v. State, 236 Ga. App. 709 (513 SE2d 263) (1999), that this Court found to be error. In Rivers, the trial court gave the following charge:

Sometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose to which the evidence is limited and not for any other purpose.
The law provides that the evidence of other transactions of this defendant that are similar in terms of course of conduct, the common design, scheme, plan, motive, location and time or place or other factors connected to the offense for which the defendant is on trial may be admissible and may be considered for the limited purpose of showing, if it does, the identity of the perpetrator, the state of mind, and the crimes charged in the case now on trial.
Such evidence, if any, may not be considered by you for any other purpose.
The defendant is on trial in this bill of indictment only. And the court does not express any opinion as to whether the defendant has any other offenses or transactions. This is a matter solely for your determination.
Before you may consider evidence of similar offenses or transactions for any purpose, it must be first made to appear and you must be satisfied that this defendant is the same person to whom the evidence of similar transactions pertains. If you believe that that has been proven, however, you are strictly limited in your consideration of the evidence as to the identity, state of mind or element of the offense charged in this indictment.

(Emphasis supplied.) Id. at 709-710. This Court held that the charge in Rivers

inadvertently but substantially expands the limited purposes for which similar transaction evidence can be used. By informing the jury that it also could consider similar transaction evidence for the purpose of showing “the crimes charged in the case,” and in considering an “element of the offense charged in this indictment,” a fair risk exists that the jury was confused and misled as to the proper limited use of similar transaction evidence to the prejudice of Rivers. Thus, the jury might have improperly concluded that similar transaction evidence could be directly used to prove the crime charged or one or more of its elements; for example, it might have inferred that because Rivers had committed a previous crime, he had bad character and therefore was likely to have committed the crime charged in the indictment.

Rivers, supra, 236 Ga. App. at 712. In Nickerson v. State, 248 Ga. App. 829, 833 (545 SE2d 587) (2001), we explained that

[w] e reversed because the charge in Rivers informed the jury “that it also could consider similar transaction evidence for the purpose of showing ‘the crimes charged in the case,’ and in considering an ‘element of the offense charged in this indictment.’ ” [Rivers, supra, 236 Ga. App.] at 712 (1) (b). That charge thus created a fair risk that the jury was confused and misled as to the proper limited use of similar transaction evidence to the prejudice of the defendant.

(Footnotes omitted.)

The prosecution argues that the charge given was not the same as the charge in Rivers, the charge given at the conclusion of the evidence corrected the problem, and the parts of the charge that are problematic may have been a transcription error because the charge given at the close of the evidence was different than the initial charge of similar transactions and was legally correct.

We cannot agree that the charge in this case was not the same as that in Rivers. This charge informed the jury that the similar transaction evidence “may be considered for the limited purpose of showing, if it does, the state of mind, bent of mind, course of conduct, and motive of the individual and the knowledge and the intent of the defendant and the crimes charged in the case now on trial.” (Emphasis supplied.) The charge in Rivers instructed the jury that similar transaction evidence “may be considered for the limited purpose of showing, if it does, the identity of the perpetrator, the state of mind, and the crimes charged in the case now on trial.” (Emphasis supplied.) Both charges expanded the scope for which similar transaction evidence might be considered to include “the crimes charged in the case now on trial.” Therefore, both charges suffer from the same infirmity.

The transcript shows that the charge given at the conclusion of the evidence charged the jury on this issue that

[s]ometimes evidence is admitted for a limited purpose. Such evidence may be considered by you solely for the sole issue of a purpose for which the evidence is limited and not for any other purpose.
The law provides that evidence of other offenses of this defendant that are similar in terms of bent of mind, course of conduct, and motive to the offense for which the defendant is on trial may be admissible and may be considered for the limited purpose of showing, if it does show, the state of mind; that is, the knowledge or the intent of the defendant in the crimes charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose.
The defendant is on trial for the particular offense charged in this bill of indictment only. I do not express any opinion as to whether the defendant has had any other offenses. That is a matter solely for your determination.
Before you may consider evidence of similar offenses or transactions, you must be satisfied that this defendant is the same person to whom the evidence of similar offenses or transactions pertains.
If you believe such has been proven, however, you are strictly limited in your consideration of the evidence as to the purposes previously charged by the Court.

Copies of the charge given by the trial court were provided to the jurors.

Because the court informed the jury that it was “strictly limited in your consideration of the evidence as to the purposes previously charged by the Court” (emphasis supplied), this charge did not correct the problem with the initial charge, but, in fact, made it part of the charge given at the close of the evidence. Even if the final charge correctly stated the law, however, the error would not have been cured because the jury would have been given two conflicting charges. Where two or more j ury instructions directly conflict with one another, a new trial is required. Flexible Products Co. v. Ervast, 284 Ga. App. 178, 180 (1) (643 SE2d 560) (2007).

A charge containing two distinct propositions conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that it can not render an intelligible verdict, and requires the grant of a new trial. The jury cannot be expected to select one part of a charge to the exclusion of another, nor to decide between conflicts in the charge or determine whether one part cures a previous error, without having its attention specially called thereto and being instructed accordingly.

(Citations and punctuation omitted.) Id.

Further, we cannot speculate on whether the initial charge was a transcription error. If such a mistake was made in preparing the transcript, procedures exist to correct such mistakes. See OCGA § 5-6-41. The record on appeal does not show that the prosecution took any step to correct the transcript if, indeed, such a mistake was made.

Decided November 19, 2013.

Charles E. W. Barrow, for appellant.

W. Jeffrey Langley, District Attorney, Cathy Cox-Brakefield, Assistant District Attorney, for appellee.

Accordingly, we find that the charge in this case created a fair risk “that the jury was confused and misled as to the proper limited use of similar transaction evidence to the prejudice of [the defendant].” Rivers, supra, 236 Ga. App. at 712 (1) (b). When such a charging error occurs, “a rebuttable presumption arises that the charge is prejudicial and harmful, and this Court must so hold unless it appears from the entire record that the error is harmless.” Id. at 712-713 (1) (b). As we cannot say that the evidence against Dodd was overwhelming, we cannot find that this error was harmless, and thus must reverse Dodd’s conviction for possession of methamphetamine with the intent to distribute. Baird v. State, 260 Ga. App. 661, 663-664 (1) (580 SE2d 650) (2003) (“Error in a jury charge is harmless where there is no reasonable probability that it misled the jury or permitted a defendant’s conviction on an erroneous theory.”) (punctuation and footnote omitted). Further, Dodd’s defense counsel testified at the motion for new trial hearing that he did not object because he did not see any error as the instruction was given, and not a matter of trial strategy. Accordingly, Dodd has established that his counsel was ineffective for failing to object to the charge given. Further, a reasonable probability of a different outcome exists because the charge given created a fair risk “that the jury was confused and misled as to the proper limited use of similar transaction evidence to [Dodd’s] prejudice.” See Rivers, supra, 236 Ga. App. at 712 (1) (b). Therefore, the trial court erred by denying Dodd’s motion and amended motion for new trial based upon the ineffectiveness of his defense counsel for failing to object to the charge on similar transactions.

3. In view of our reversal of Dodd’s conviction and the fact that the other issues he complains of are unlikely to recur upon any retrial, we need not address Dodd’s other enumerations of error.

Judgment reversed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A13A1324.
    NEBO VENTURES, LLC v. NOVAPRO RISK SOLUTIONS, L.P.
    (752 SE2d 18)
   ANDREWS, Presiding Judge.

Nebo Ventures, LLC, sued NovaPro Risk Solutions, L.P, to recover damages for breach of contract and fraud. The trial court granted partial summary judgment to NovaPro, and Nebo appeals. For reasons set forth below, we affirm in part, reverse in part, vacate in part, and remand with direction.

It has been “well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law.” (Citation and punctuation omitted.) Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998). “We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citation omitted.) White v. Ga. Power Co., 265 Ga. App. 664, 664-665 (595 SE2d 353) (2004).

So viewed, the evidence shows that Nebo, a limited liability company wholly owned and managed by Kevin Miles, helped companies obtain and perform contracts with state and local governments. Nova-Pro, formerly known as Ward North America, L.P, was in the business of providing third-party administrative services. In 2003, NovaPro retained Nebo to assist it in selling administrative services to potential customers. By the terms of their March 2003 written contract (the “Nebo Services Agreement”), the parties agreed to designate the amount of Nebo’s fees in a separate schedule for each potential customer. The Nebo Services Agreement contemplated that NovaPro would not take any action to circumvent the payment of fees to Nebo, including “causing Revenues to be paid to an entity or person other than” NovaPro, “which Revenues shall be deemed paid to” NovaPro.

In a November 2003 addendum to the Nebo Services Agreement, NovaPro and Nebo identified the City of Atlanta as a “Potential Customer.” In September 2004, the City contracted with NovaPro (the “2004 City Contract”) for the provision of certain workers’ compensation, medical, healthcare, and claims management services. Consistent with the terms of the addendum, NovaPro elected to pay Nebo five percent of the adjusted gross revenues “for the life of its contract with the City of Atlanta.” NovaPro began making payments to Nebo, either directly or through Miles, amounts which NovaPro represented to be five percent of its adjusted gross revenues from the 2004 City Contract.

The initial term of the 2004 City Contract was two years, with one two-year renewal option. The City and NovaPro entered into a “City-Contractor Agreement Renewal No. 1” pursuant to which the parties extended the 2004 City Contract for a two-year period beginning on October 1, 2006 and ending on September 20, 2008. After the expiration of the 2004 City Contract, as extended, the City issued a request for proposal, seeking bidders for a new contract for the provision of workers’ compensation, medical, healthcare and claims management services. NovaPro won the bid and entered into a professional services agreement (the “2009 City Contract”) with the City for an initial three-year term, beginning July 1, 2009. Although NovaPro and the City were operating without a contract for a time, NovaPro performed services and recognized income from the City during that period.

Meanwhile, according to Miles, he became aware in 2009 that the City was considering terminating its contractual relationship with NovaPro. Miles e-mailed NovaPro’s chief operating officer, Russ Whitmarsh, and asked that NovaPro “consider extending our agreement for 3 years ... if we are awarded the extensions by [the City of Atlanta] under the ‘new’ contract.” After several e-mail exchanges, NovaPro’s officer wrote Miles “I will commit to extending your current agreement if we get the renewal.” Whitmarsh also stated that “[t]his I will put in writing” for both parties to execute, but he never did.

NovaPro continued making payments to Nebo after NovaPro and the City entered into the 2009 City Contract. In June 2011, NovaPro sold substantially all of its assets to Carl Warren & Company (“CWC”), including the rights to the 2009 City Contract. NovaPro made its last payment to Nebo in June 2011. After the asset sale to CWC, NovaPro ceased active business operations and did not receive revenues from ongoing business operations, including any revenues from the City.

Nebo believed that NovaPro’s sale of the 2009 City Contract to CWC, along with NovaPro’s announcement of its intent to stop paying fees under the Nebo Services Agreement, constituted a breach of NovaPro’s obligation not to circumvent payment of fees to Nebo. Accordingly, Nebo sued NovaPro. In what Nebo characterizes as its “forward-looking” claims, Nebo alleged that NovaPro was in breach of the Nebo Services Agreement by refusing to pay Nebo five percent of the adjusted gross revenues of the 2009 City Contract. And in its “backward-looking” claims, Nebo alleged that NovaPro had miscalculated the five percent fee in the past and so underpaid Nebo.

Nebo later amended its complaint to assert a fraud claim arising out of allegations that NovaPro had misrepresented and concealed revenues it had received from the City in the form of performance bonuses. During discovery NovaPro initially failed to disclose that it had received approximately $1 million in performance bonuses from the City. In 2004, NovaPro had informed Miles that the City had agreed to pay a yearly performance bonus “based upon how much we can actually save the City each year,” and that, if NovaPro actually earned a bonus, Nebo would “of course receive your 5% share of that.” When Miles asked Whitmarsh in 2008 or 2009 and NovaPro’s chief financial officer, Ken Perilli, as late as 2008, about the bonuses, they each represented that no bonus had been paid. However, during the second quarter of 2005 and the second quarter of 2006, NovaPro received performance bonuses from the City of $814,501 and $348,972, respectively. NovaPro’s former controller, Antoinette Turbyfill, deposed that the performance bonuses were a component of gross revenue and that she had initially failed to include the bonuses in information she supplied to NovaPro’s lawyers.

After Nebo asserted its fraud claim, NovaPro moved for summary judgment. In its resulting order, the trial court found that issues of material fact remained as to whether Nebo had been fully compensated under the Nebo Services Contract and so denied Nova-Pro’s motion as to the “backward-looking” breach of contract claims in part. It also denied summary judgment on Nebo’s contractual claims for attorney fees. The trial court, however, granted summary judgment to NovaPro on (i) the fraud claims; (ii) the punitive damages claims; (iii) the “backward-looking” breach of contract claims to the extent that those claims arose outside the statute of limitation, which the trial court found to be six years before this action was filed; and (iv) the “forward-looking” breach of contract claims. Nebo appeals from this order.

1. Nebo contends that the trial court erred in granting NovaPro’s motion for summary judgment as to Nebo’s fraud claim. We agree.

The elements of fraud are “(1) false representation by defendant; (2) scienter [or knowledge of the alleged falsehood]; (3) intent to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff.” Lakeside Investments Group v. Allen, 253 Ga. App. 448, 450 (559 SE2d 491) (2002). See Dasher v. Davis, 274 Ga. App. 788, 789 (618 SE2d 728) (2005) (accord). The absence of one or more of these elements will sustain a grant of summary judgment to the defendant. See id. at 790. Nevertheless, “slight circumstances may be sufficient to carry conviction” of the existence of fraud. (Citation omitted.) Everson v. Franklin Discount Co., 248 Ga. 811, 812 (285 SE2d 530) (1982).

Here, the trial court found as a matter of law that Nebo was not justified in relying on NovaPro’s representations regarding the nonpayment of the performance bonuses. For the reasons discussed below, we disagree and conclude that the issue should be resolved by a jury. However, virtually every element of Nebo’s fraud claim is in dispute, and “a judgment right for any reason will be affirmed on appeal.” (Citation and punctuation omitted.) R. W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 866 (2) (b) (601 SE2d 177) (2004). Accordingly, we will address each element of Nebo’s fraud claim in turn.

(a) The City paid NovaPro more than $1 million in performance bonuses in 2005 and 2006. Under the terms of the Nebo Services Contract, and as acknowledged by Perilli, Nebo was entitled to a “5% share” of those monies. According to Miles, in response to his later inquiry about the bonuses, Perilli and Whitmarsh denied that any bonuses had been paid. Viewed in a light most favorable to Nebo, there is evidence that NovaPro made a false statement.

Further, NovaPro’s alleged misrepresentation can be distinguished from a mere breach of contract. In Georgia, “a tort action cannot be based on the breach of a contractual duty only, but it can be based on conduct which, in addition to breaching a duty imposed by contract, also breaches a duty imposed by law.” (Citations and punctuation omitted.) Young v. W. S. Badcock Corp., 222 Ga. App. 218, 219 (1) (474 SE2d 87) (1996). Georgia law recognizes a right to recover for a “[wjillful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury,” OCGA § 51-6-2, and a breach of the duty imposed thereby would afford Nebo a right of action for fraud notwithstanding that NovaPro’s nonpayment of fees due on account of the performance bonuses would have also breached the Nebo Services Agreement. See Young, 222 Ga. App. at 218 (where plaintiffs asserted defendant defrauded them by, among other things, having “fraudulently misrepresented and withheld the actual amount of accounts receivable plaintiffs were entitled to receive,” the complaint set forth a viable tort claim).

(b) According to Turbyfill, NovaPro’s former controller, both Whitmarsh, who was head of “the performance that would lead to the performance bonus,” and Perilli would have known about the performance bonuses. Viewed most favorably to Nebo, there is at least circumstantial evidence from which a trier of fact could conclude that Perilli and Whitmarsh knew that they had made false statements.

(c) By knowingly misleading Nebo about the performance bonuses, NovaPro might expect that Nebo would not take action to further investigate or to recover the sums it was due, to the benefit of NovaPro and the detriment of Nebo. A jury could infer from the circumstances that NovaPro made a knowing misrepresentation with the intent that Nebo rely thereon and so refrain from acting.

(d) Miles deposed that he relied on NovaPro’s statements that “we didn’t get a bonus” and would have exercised Nebo’s right to pursue an audit if he had realized that the statement was a misrepresentation. Thus, there is evidence that Nebo relied on the alleged misrepresentation. However, if the record demonstrates that the plaintiff’s reliance on the misrepresentations was not “justifiable,” summary judgment for the defendant is appropriate. Dyer v. Honea, 252 Ga. App. 735, 740 (3) (b) (557 SE2d 20) (2001). To show justifiable reliance, the plaintiff must establish that he exercised his duty of due diligence. Id. See Middleton v. Troy Young Realty, 257 Ga. App. 771, 773 (b) (572 SE2d 334) (2002) (finding that “[f]raud cannot be the basis of an action if it appears that the party alleging the fraud had equal and ample opportunity to prevent it and yet made it possible through the failure to exercise due diligence”) (citation and punctuation omitted). But other than “in plain and indisputable cases, questions of fraud and whether a plaintiff could have protected himself through the exercise of ordinary diligence are questions for a jury.” Lester v. Bird, 200 Ga. App. 335, 338 (1) (408 SE2d 147) (1991).

Here, the trial court noted, the Nebo Services Contract afforded Nebo the right to an accounting so that it could confirm or check up on NovaPro’s payments. We are unconvinced, however, that Nebo’s failure to exercise its right to audit NovaPro establishes such a lack of due diligence that the issue need not be resolved by ajury. Although “a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations.” (Citation and punctuation omitted.) Gaines v. Watts, 224 Ga. 321, 323 (161 SE2d 830) (1968). Miles was aware that he had the right to an accounting, but deposed that he wanted to avoid being placed “in a combative relationship when you start basically not believing your client,” and that “once you start auditing ... it’s a big to-do.” In some situations reasonable diligence might nevertheless require such an undertaking. See, e.g., Dyer v. Honea, 252 Ga. App. at 738 (1) (reliance on seller’s misrepresentations was not reasonable where buyer did not request copies of documents or sought out an accountant to review them). But in this case the alleged misrepresentation was not made in the context of a real estate or other comparable transaction, and the diligence reasonably required of the parties in such cases does not control here. See Cistola v. Daniel, 266 Ga. App. 891, 895 (1) (598 SE2d 535) (2004) (fraud claimant “could not be held to the same level of diligence required of a purchasing or selling party in a standard real estate transaction”).

NovaPro points out that during a series of e-mails in 2008, Miles wrote to Perilli “about resolving the issue of my un-paid compensation,” to which Perilli responded “it does not appear that you are owed any extra compensation.” After Miles reminded Perilli that Nebo could hire a CPAfirm to audit NovaPro’s books, Perilli acknowledged that “[i]f you wish to hire a CPA to do an audit, you are free to do so.” NovaPro contends that inasmuch as Nebo declined to conduct an audit following this exchange, the evidence shows that Nebo failed to exercise proper diligence in protecting its interests. However, both the e-mails and Miles’s testimony demonstrate that Nebo was concerned with Perilli’s apparent calculation of Nebo’s compensation based on “profitability on the account.” Miles reminded Perilli that the Nebo Services Agreement required that Nebo’s compensation be based on five percent of the defined term “Adjusted Gross Revenue.” This dispute did not necessarily show that Nebo had reason to doubt NovaPro’s representation that it did not receive a performance bonus. We cannot say as a matter of law that reasonable diligence required that, in response to its client’s representation as to the nonpayment of the performance bonuses, Nebo protect its interests by auditing NovaPro.

If a jury could conclude that due diligence did not require an audit, the issue remains whether Nebo performed so little diligence that there is no issue of fact as to whether its reliance on NovaPro’s alleged misrepresentations was justified. We are unpersuaded by Nebo’s argument that a jury could find that Nebo and NovaPro were in a confidential relationship, which carries with it a lessened duty to discover what could have been discovered through ordinary care. See Howard v. Barron, 272 Ga. App. 360, 363 (2) (612 SE2d 569) (2005). However, Nebo also shows that Miles asked NovaPro’s officers about the performance bonuses on several occasions and that the “alleged misrepresentations [were made] in response to his specific questions.” Cistola, 266 Ga. App. at 895-896 (1). Thus, a jury might conclude that NovaPro’s “answers defeated [Nebo’s] efforts to exercise due diligence under the circumstances of this case.” (Citation and punctuation omitted.) Id. See Brookshire v. Digby, 224 Ga. App. 512, 517 (481 SE2d 250) (1997) (questions about defects were met with false, deceptive, or reckless answers, which defeated efforts to exercise diligence). A jury might also conclude that NovaPro was actively attempting to conceal the payment of bonuses and that further inquiry by Nebo would not have provided information about their payment. See Northwest Plaza v. Northeast Enterprises, 305 Ga. App. 182, 190-191 (3) (a) (699 SE2d 410) (2010) (it was for the jury to say whether defendants were attempting to conceal the material information and whether further inquiry would have revealed the information); Power v. Ga. Exterminators, 243 Ga. App. 355, 361 (5) (532 SE2d 475) (2000) (finding that “[w]here defects are not obvious, such defects are not discoverable through due diligence”). Accordingly, it is for the jury to determine “whether [Nebo] justifiably relied upon information from [NovaPro]; or whether it should have made some further, independent inquiry.” Northwest Plaza, 305 Ga. App. at 191 (3) (a).

(e) To establish fraud, the claimant must also show that it “sustained the alleged loss and damage as the proximate result” of the misrepresentations having been made. (Punctuation and footnote omitted.) OnBrand Media v. Codex Consulting, 301 Ga. App. 141, 149 (2) (e) (687 SE2d 168) (2009). A trier of fact could conclude that, but for the misrepresentations, Nebo would have received its share of the performance bonuses. The damages recoverable for the alleged fraud may overlap Nebo’s damages for breach of contract, if that action is successful, and Nebo would not be entitled to a double recovery. See, e.g., UIV Corp. v. Oswald, 139 Ga. App. 697, 699 (229 SE2d 512) (1976) (plaintiff cannot “recover twice from the same defendant merely by denominating one action a tort and the other a breach of contract”) (citation and punctuation omitted). However, “[a] plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them,” OCGA § 9-2-4, and any election of remedies, if necessary, could be made before judgment. See UIV Corp., 139 Ga. App. at 699.

In light of the foregoing, material issues of fact remain for the trier of fact. We find, therefore, that the trial court erred in granting summary judgment to NovaPro on Nebo’s fraud claim.

2. The trial court granted summary judgment to NovaPro on Nebo’s punitive damages claims because it concluded that Nebo’s fraud claim had failed. Because the fraud claim remains viable, the punitive damages claim also remains outstanding. See, e.g., Esprit Log & Timber Frame Homes v. Wilcox, 302 Ga. App. 550, 553-554 (1), (2) (691 SE2d 344) (2010) (affirming damage award for breach of contract as well as jury’s award of punitive damages for contract-related fraud); Clark v. Aenchbacher, 143 Ga. App. 282, 284 (1) (238 SE2d 442) (1977) (finding that “[e]ven in an action for breach of contract, where there were matters of record relating to fraud, punitive damages can be awarded, for fraud, if found, is tortious conduct”) (citation and punctuation omitted).

3. Nebo also contends that the trial court erred in granting partial summary judgment as to its “backward-looking” breach of contract claims to the extent those claims arose outside of the six-year statute of limitation. We disagree.

We preface our analysis by noting that the trial court expressly found that NovaPro’s motion for summary judgment did not encompass Nebo’s claim that NovaPro breached the Nebo Services Agreement by failing to pay Nebo five percent of the performance bonuses paid by the City to NovaPro. Thus, the trial court did not address whether this breach of contract claim, in whole or in part, was barred by the statute of limitation. Further, Nebo fails to show that it was in a confidential relationship with NovaPro giving rise to a duty to disclose or that, setting aside the representations regarding the performance bonuses, the City made an affirmative misrepresentation that might toll the limitation period. Compare Perkins v. Aetna Cas. & Surety Co., 147 Ga. App. 662, 664 (4) (249 SE2d 661) (1978) (employer’s “clearcut affirmative misrepresentations” regarding availability of workers’ compensation constituted fraud that tolled statute of limitation).

In light of the foregoing, Nebo’s claim of error necessarily fails. The statute of limitation for actions on written contracts is six years. See OCGA § 9-3-24; Cotton States Mut. Ins. Co. v. Atkinson, 120 Ga. App. 695, 697 (172 SE2d 188) (1969). The statute begins to run at the time of breach, not the time the damages result or are discovered. See Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 385 (1) (649 SE2d 779) (2007); Gamble v. The Lovett School, 180 Ga. App. 708, 710 (350 SE2d 311) (1986). In this case, the complaint was filed on July 1, 2011, and so Nebo’s “backward-looking” claims that NovaPro breached the Nebo Services Contract by underpaying Nebo, to the extent those claims arose before July 1, 2005, are time-barred.

4. At issue in Nebo’s “forward-looking” breach of contract claims is whether NovaPro breached the Nebo Services Agreement following the sale of NovaPro’s assets to CWC. The trial court granted summary judgment to NovaPro because it found that the 2009 City Contract was not a “renewal” of the 2004 City Contract and that it followed that Nebo was not entitled to any revenues derived from the 2009 City Contract. Nebo claims that this was error. We disagree. However, we conclude that we must nevertheless remand for the trial court to consider whether the parties entered into an enforceable agreement to extend the term of the Nebo Services Agreement.

In construing contracts, courts apply a three-step process:

At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

(Citation and punctuation omitted.) Chaudhuri v. Fannin Regional Hosp., 317 Ga. App. 184, 184-185 (1) (730 SE2d 425) (2012). “Ambiguity exists where the words used in the contract leave the intent of the parties in question.” (Citation and punctuation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 106 (1) (661 SE2d 578) (2008). On the other hand, “no ambiguity exists where, examining the contract as a whole and affording the words used therein their plain and ordinary meaning, the contract is capable of only one reasonable interpretation.” (Citation and punctuation omitted.) Id.

The stated termination date of the Nebo Services Agreement is “April 31 [sic], 2008.” Notwithstanding its termination, the agreement provides that “Nebo shall be entitled to Fees for any Potential Customers who have previously entered into a contract with [NovaPro] for Subject Services, or who enter into such a contract within one year of Termination.” Thus, NovaPro’s obligations to Nebo under the Nebo Services Agreement did not necessarily end with that contract’s termination date.

As we noted previously, by separate addendum the parties designated the City as a “Potential Customer.” And “Subject Services” are defined as “third party administrative services in the area of insurance.” The “Fees” referred to in the termination provision is also a defined term. Nebo is entitled to “Fees” for the “ ‘adjusted gross revenues’ earned by [NovaPro] for providing Subject Services to potential customers who have entered into contracts with [NovaPro] during the” term of the Nebo Services Agreement or within a year thereafter. In turn,

“Adjusted gross revenues” is defined as: gross revenue, less [certain revenues and expenses] and shall be applicable for the life of any such contracts and extensions or renewals thereto, provided however that any such extensions or renewal becomes effective with[in] one year from the date which such prior contract, renewal or extension has expired.

Reading these provisions as a whole, the fact that the City and NovaPro entered into the 2004 City Contract does not, in and of itself, entitle Nebo to a portion of revenues generated by any administrative services contract thereafter entered into between the City and NovaPro. And inasmuch as the 2009 City Contract was entered into more than one year after the stated termination date of the Nebo Services Agreement, it follows that, absent an agreement of the parties to extend the termination date of the Nebo Services Agreement, the 2009 City Contract does not independently give rise to any obligation by NovaPro to pay fees to Nebo. Rather, because the City and NovaPro entered into the 2004 City Contract before the termination (or one year thereafter) of the Nebo Services Agreement, Nebo is entitled to a percentage of Adjusted Gross Revenues on account of the 2004 City Contract and any extensions or renewals thereof, and that obligation would continue whether or not the Nebo Services Agreement otherwise terminated. The pertinent question then becomes whether the 2009 City Contract is an extension or renewal of the 2004 City Contract.

Neither “extension” or “renewal” is defined by the Nebo Services Agreement. But there is little question that the 2009 City Contract, which encompasses almost 200 pages and does not simply incorporate the provisions of the 2004 City Contract, is not an extension. An extension is “intended merely to lengthen the time upon terms and conditions stated,” and “does not contemplate a new agreement.” Powell v. Norman Elec. Galaxy, 229 Ga. App. 99, 100 (1) (493 SE2d 205) (1997).

What the parties intended by a “renewal” and whether that term applies to the 2009 City Contract is a more difficult question. A renewal may be generally defined as “the re-creation of a legal relationship or the replacement of an old contract with a new contract, as opposed to the mere extension of a previous relationship or contract.” Livoti v. Aycock, 263 Ga. App. 897, 903 (2) (590 SE2d 159) (2003) (quoting Black’s Law Dictionary (7th ed. 1999)). But the foregoing definition is somewhat broader than the term has been applied by the Georgia courts, as we have found that a “renewal” is not any new contract, but “another contract that continues the same obligation.” Id. See generally Lowry Nat. Bank v. Fickett, 122 Ga. 489, 492 (50 SE 396) (1905) (finding that “an obligation is renewed when the same obligation is carried forward by the new paper or undertaking, whatever it may be”).

For example, in the context of leases, differentiating between a renewal of a preceding lease and an altogether new lease

can be based on whether the succeeding lease employs drastically different terms, not simply somewhat different considerations, i.e., is the lessee occupying substantially the same space under substantially the same terms? If the succeeding lease employs substantially the same terms as the preceding lease, it may be considered a renewal even though technically a “new” lease.

Bd. of Regents v. A. B. & E., 182 Ga. App. 671, 674 (357 SE2d 100) (1987). See Brannen/Goddard Co. v. Sheffield, Inc., 240 Ga. App. 667, 669 (524 SE2d 534) (1999) (accord). We find A. B. & E. and Brannen/ Goddard persuasive because, among other things, those decisions involved claims for unpaid commissions and are analogous to Nebo’s action in this case to recover fees derived from a separate contract between its client and a third party. Viewing the contract as a whole and affording its terms their usual and ordinary meaning, we conclude that the Nebo Services Agreement is not ambiguous. The parties contemplated that a new agreement between the City and NovaPro would be considered a “renewal” if such agreement encompassed substantially the same obligations as the 2004 City Contract.

The trial court found that the 2009 City Contract was not a renewal of the 2004 City Contract because the two agreements provided for substantially different obligations, and we agree. The 2004 City Contract required NovaPro to provide the City with six services and the 2009 City Contract required NovaPro to provide three. The 2004 City Contract and 2009 City Contract also identified different subcontractors and affiliates through which services could be provided. A comparison of the two agreements shows that the contractual language describing the scope of services is completely different. Further, the 2009 City Contract was entered into as a result of the City’s request for proposal. See, e.g., Brannen/Goddard, 240 Ga. App. at 670 (where, among other things, lessee negotiated an entirely different lease, the new lease was not a renewal of the old lease).

We find Nebo’s arguments that the 2009 City Contract was a renewal of the 2004 City Contract to be unpersuasive. Nebo points out that Miles deposed that the City’s request for proposal “was for the exact same services that NovaPro was already providing.” Miles’s statement appears to be a sweeping assertion that does nothing to explain the differences between the 2004 City Contract and the 2009 City Contract. Nebo also points to evidence that NovaPro continued to pay Nebo, or Miles on Nebo’s behalf, a percentage of revenues on account of monies received from the City after the inception of the 2009 City Contract, and that it made those payments until 2011. In some circumstances, “[t]he construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” Scruggs v. Purvis, 218 Ga. 40, 42 (126 SE2d 208) (1962). However, Nebo fails to show that the parties construed the Nebo Services Agreement as requiring such payments beyond its termination. According to Miles’s affidavit, it was only “upon reflection,” i.e., after the fact, that he came to believe that it was not necessary to extend the Nebo Services Agreement for Nebo to continue to receive the fees. Compare Anderson v. Anderson, 274 Ga. 224, 226 (552 SE2d 801) (2001) (recognizing principle that the parties’ interpretation is of great influence, particularly if it is made before any controversy arises).

Although we agree with the trial court’s finding that the 2009 City Contract was not a renewal of the 2004 City Contract within the meaning of the Nebo Services Agreement, it does not follow that NovaPro was entitled to summary judgment on its “forward-looking” breach of contract claims. Miles averred that the parties reached a final agreement to extend the term of the Nebo Services Agreement for three years. If the term of the Nebo Services Agreement was extended, then the 2009 City Contract, even if not a “renewal” of the 2004 City Contract, would appear to be an administrative services contract between NovaPro and a “Potential Customer” entered into within the term of Nebo Services Agreement (or one year thereafter) and so subject to its fee provisions and related warranties. Although minimally briefed, the parties dispute whether they reached a meeting of the minds on the essential terms of an agreement to extend the term of the Nebo Services Agreement, or only an unenforceable “agreement to agree,” and whether the Statute of Frauds rendered an oral agreement unenforceable notwithstanding, as Nebo asserts, its part performance thereunder. Although the issue of an extension to the Nebo Services Agreement was raised below by the evidence and by NovaPro’s arguments in support of its motion for summary judgment, the trial court did not address the matter in its summary judgment order. Thus, if we were to conclude that the trial court erred, it would be on account of an issue never ruled on below. See City of Gainesville v. Dodd, 275 Ga. 834, 837 (573 SE2d 369) (2002) (noting principle that “[t]here having been no rulings by the trial court on the issues raised on appeal, there are no rulings to review for legal error”) (citation and punctuation omitted). As we have said,

although an appellate court sometimes can review a record for purposes of summary judgment as effectively as a trial court and determine that the ruling under review was right for some reason other than the reason given by the court below, we do not think an appellate court properly ought to consider whether the trial court was “wrong for any reason.”

(Citation and punctuation omitted.) Strength v. Lovett, 311 Ga. App. 35, 44 (2) (b) (714 SE2d 723) (2011). Accordingly, we conclude that it is appropriate for the trial court to address in the first instance whether triable issues of fact remain on the question of whether the parties entered into an enforceable extension of the Nebo Services Agreement, and, if so, whether NovaPro is entitled to summary judgment on Nebo’s “forward-looking” breach of contract claims. See id. We therefore vacate the grant of summary judgment as to the “forward-looking” breach of contract claims and remand for the trial court to address the issue.

In sum, we reverse the grant of summary judgment to NovaPro on Nebo’s fraud claims and punitive damage claims. We affirm the grant of partial summary judgment on the “backward-looking” breach of contract claims. We vacate the trial court’s order granting summary judgment to NovaPro on Nebo’s “forward-looking” breach of contract claims, and remand the case with direction.

Decided November 19, 2013

McKenna, Long & Aldridge, Robert M. Martin, Bruce P. Brown, for appellant.

Hall Booth Smith, James W. Standard, Jr., for appellee.

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

Dillard and McMillian, JJ., concur.

       In practice, it appears that NovaPro entered into an employment agreement with Miles and paid its obligation to Nebo directly to Miles “via salary, an estimate” of five percent of adjusted gross revenues from the City. NovaPro submitted an employment agreement to Miles to memorialize the arrangement, but Miles never signed that agreement.

       Nebo asserted a corresponding breach of contract claim for NovaPro’s failure to pay fees on account of the performance bonuses, but this portion of the amended complaint was expressly not within the scope of order on appeal.

       Excepting the amended claim for NovaPro’s alleged failure to pay the fees associated with the performance bonuses, about which the trial court did not rule, and about which we express no opinion.

       The parties agree that the word “without,” which appears in the document, is a typographical error and should he “within.”

         The scope of services under the 2004 City Contract provide for “Workers Compensation Claims Management. . . , Litigation Management, Risk Management Information Systems/ Reporting, Medical Cost Containment' Services, Subsequent Injury Trust Fund Management, and Subrogation.”

       The scope of services under the 2009 City Contract are “Third Party Administration of Workers’ Compensation claims,” “Management of Healthcare,” and “Management of Workers’ Compensation-related litigation.”

       Nebo, pointing to statements by NovaPro as to an “April 2009” expiration date, also suggests, it appears, that the parties initially extended the term of the Nebo Services Agreement to coincide with the expiration of Miles’s employment agreement.


author: McFADDEN, Judge. DOYLE, Presiding Judge,

text:
    A13A1434.
    HERNANDEZ-ESPINO v. THE STATE.
    (752 SE2d 10)
   McFADDEN, Judge.

We granted Jose Herminio Hernandez-Espino’s application for interlocutory review of the trial court’s denial of his motion to suppress crack cocaine found in his pocket during a search to which he consented. We agree with Hernandez-Espino that his consent to the search was tainted because it occurred during an unlawful second-tier encounter with law enforcement officers. Accordingly, we reverse.

“[T]he burden of proving a search was lawful is on the state. The state thus has the burden of proving the validity of a consensual search. Moreover, we are required to scrutinize closely an alleged consent to search.” Foster v. State, 285 Ga. App. 441, 442 (646 SE2d 302) (2007) (citations and punctuation omitted). In reviewing the denial of a motion to suppress on appeal, “we owe no deference to the way in which the trial court resolved questions of law, but we generally accept its findings about questions of fact and credibility unless clearly erroneous.” Edenfield v. State, 293 Ga. 370, 374 (2) (744 SE2d 738) (2013) (citation and footnote omitted).

The only evidence presented at the hearing on HernandezEspino’s motion to suppress was the testimony of a law enforcement officer. He testified that on February 7, 2012, he and another officer were working an extra shift at an apartment complex that had been experiencing problems with crime, including drug activity. The officer was wearing his police uniform and an armored vest and was carrying his weapon. Around 9:00 p.m., he saw Hernandez-Espino emerge from a building that he testified had been identified as a location in which narcotics were sold. The officer approached Hernandez-Espino and asked if he lived in the complex. Hernandez-Espino replied that he did not, but that he was there visiting a friend. The officer asked for the friend’s name, and Hernandez-Espino said he did not know but pointed to an apartment.

The officer, who was familiar with the residents of that apartment, testified that he “just knew that [Hernandez-Espino] wasn’t telling the truth.” He said to Hernandez-Espino, “man, just give me the drugs you just bought.” Hernandez-Espino denied having any drugs. The officer then asked for consent to search, and HernandezEspino agreed. The officer found crack cocaine in HernandezEspino’s pocket.

Hernandez-Espino argues that the trial court erred in denying his motion to suppress evidence of the crack cocaine, because that evidence was the product of an illegal search. Specifically, he argues that the officer escalated their encounter to a second-tier encounter by demanding that Hernandez-Espino “give [him] the drugs [he] just bought,” that the officer lacked the reasonable articulable suspicion required for a second-tier encounter, and that the unlawful second-tier encounter tainted his consent. We agree.

1. The encounter escalated to a second-tier encounter.

In construing [the Fourth Amendment to the United States Constitution], the Supreme Court of the United States has set forth — including most notably in Terry v. Ohio[, 392 U. S. 1, 21 (III) (88 SCt 1868, 20 LE2d 889) (1968)] — three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

In the Interest of J. B., 314 Ga. App. 678, 680 (1) (725 SE2d 810) (2012) (citation and punctuation omitted).

The initial contact between the officers and Hernandez-Espino was a first-tier encounter. “In the first tier, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” State v. Dukes, 279 Ga. App. 247, 248-249 (630 SE2d 847) (2006) (citation omitted).

When the officer stated, “give me the drugs you just bought,” however, he escalated the encounter to the second tier.

In determining whether a police-citizen encounter constituted a [second-tier] seizure, a court must answer whether, considering all the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.

Cutter v. State, 274 Ga. App. 589, 592 (1) (617 SE2d 588) (2005) (citation omitted). Circumstances that might demonstrate a second-tier encounter include “the use of language or tone of voice indicating compliance with the officer’s request might be compelled.” Id. (citation omitted). Accordingly, we have found that a second-tier encounter occurred in circumstances where an officer used imperative language that directed a citizen to take a particular action. See Brown v. State, 301 Ga. App. 82, 84-85 (686 SE2d 793) (2009) (officer directed defendant to remove his hands from his pockets, thereby escalating encounter from first tier to second tier).

The officer in this case, who was uniformed and carrying a weapon, approached Hernandez-Espino and, after a brief conversation, ordered him to take a particular action: “give me the drugs you just bought.” The officer used those exact words. The evidence that he did so is uncontroverted. He put them in quotation marks in his police report. At the hearing he testified three times that those were his words. And the officer’s testimony went on to dispel any doubt that those words were an order. Asked on direct examination if he had, “testified that you asked him if he had just bought some drugs,” the officer interjected a correction: “No I didn’t ask him if he bought drugs. I told him to give me the drugs he just bought.” On cross he agreed to defense counsel’s characterization of those words as a demand. Defense counsel asked: “[T]hat’s when you make the demand, [£] give me the drugs you just bought [’]; correct?” The officer responded: “Correct.”

We therefore conclude that the officer’s words were not a request that Hernandez-Espino was free to ignore. The officer’s conduct and statement “would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Cutter, 274 Ga. App. at 592 (1) (citation omitted). Compare Owens v. State, 192 Ga. App. 671, 673-674 (1) (385 SE2d 761) (1989) (circumstances showed first-tier encounter where plain-clothed officers who were not displaying guns walked up beside airline passenger in airport and asked for, rather than demanded, his ticket and identification).

Contrary to the dissent, we may not defer to the trial court’s characterization of the encounter as first-tier. We must employ a de novo review because the evidence was uncontroverted and nothing in the trial court’s order suggested that it questioned the credibility of the officer, who was the sole testifying witness. See Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012) (“When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of law to the undisputed facts.”) (citation omitted); Corey v. State, 320 Ga. App. 350, 350-351 (739 SE2d 790) (2013) (applying de novo standard of review where only evidence is officer’s undisputed testimony and officer’s credibility has not been challenged). Moreover, the trial court made no finding on the dispositive issue of whether “a reasonable person in [Hernandez-Espino’s] position would have felt free to decline the officer’s [direction to give him the drugs] or otherwise terminate the encounter,” as required for a first-tier encounter. Thomas v. State, 301 Ga. App. 198, 200 (1) (687 SE2d 203) (2009) (citation and punctuation omitted). Instead, the trial court found that the encounter remained first-tier because Hernandez-Espino himself did not consider the officer’s statement to be a command, which the trial court concluded because HernandezEspino did not respond by handing over drugs. Whether an officer-citizen encounter is a first- or second-tier encounter, however, is not governed by the citizen’s willingness to comply with the officer. See Walker v. State, 323 Ga. App. 558, 560 (1) (a) (747 SE2d 51) (2013) (officer’s command that defendant remove hands from pockets turned first-tier encounter into second-tier stop requiring reasonable articulable suspicion, even though defendant did not comply with command).

To find that the encounter in this case remained first-tier, we would have to assume that, despite the officer’s uncontroverted testimony that he commanded Hernandez-Espino to give him the drugs, the officer used a tone of voice that gave those words a different meaning. The trial court made no such finding, and nothing in the record gives us a basis for reaching such a conclusion on de novo review.

This is not a close case. We are not called upon to draw a close, technical distinction. The officer’s words were a command, and there is no evidence that they were anything other than a command. But even if this were a close case and we were called upon to draw a fine line, it would be our duty to draw such a line.

The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard. . . .

Terry v. Ohio, supra, 392 U. S. at 21-22 (III) (footnote omitted).

2. The officer lacked reasonable, articulable suspicion for a second-tier encounter.

The officer lacked the reasonable, articulable suspicion required for a second-tier encounter with Hernandez-Espino.

[A] second-tier, investigative detention . . . require [s] the officer to have a particularized and objective basis for suspecting that [the citizen] was or was about to be involved in criminal activity. To stop a citizen, the officer must possess more than a subjective, unparticularized suspicion or hunch. The officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.

Thomas, 301 Ga. App. at 201 (1) (citations and punctuation omitted).

At the motion hearing, the officer testified that he saw HernandezEspino emerge from an apartment building known for drug activity and that he believed Hernandez-Espino was lying about his reasons for being there, because Hernandez-Espino did not know the name of the person whom he said he had been visiting (a person who was, in fact, known to the officer). But

[i]t is well established that mere presence in an area of suspected crime is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Moreover, an officer’s feeling that a person is acting in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.

Ewumi v. State, 315 Ga. App. 656, 661 (1) (727 SE2d 257) (2012) (citations and punctuation omitted).

This principle reflects a foundational decision to sacrifice a little safety to purchase liberty. We have applied it in many cases to find that an officer lacked support for a second-tier encounter. For example, in Brown v. State, supra, 301 Ga. App. at 85-86, we found that an officer’s past experience with the defendant, the defendant’s presence as a nonresident at an apartment complex known for drug and criminal activity, the defendant’s attire, and the defendant’s avoidance of the officer did not give the officer the requisite reasonable, articulable suspicion. In Thomas v. State, supra, 301 Ga. App. at 201-202 (1), we found that an officer’s observation of the defendant standing in a parking lot known for drug activity, then reaching into the passenger side of a vehicle that subsequently drove away, was insufficient. In Celestin v. State, 255 Ga. App. 792, 795 (1) (567 SE2d 82) (2002), we held that a drug interdiction officer lacked reasonable, articulable suspicion to detain a bus passenger on the grounds that the passenger had disembarked after the officer boarded the bus, identified himself, and stated his intent to search for illegal narcotics, and the passenger later began to unpack his bag in front of the officer but then stopped and refused the officer’s request for consent to further search the bag. In Holmes v. State, 252 Ga. App. 286, 288-289 (556 SE2d 189) (2001), we found that an officer’s observation of the defendant approaching the passenger side of a car in a “high crime area,” then walking toward an apartment complex, and then walking back toward a car parked on the side of the road did not provide reasonable articulable suspicion. In Peters v. State, 242 Ga. App. 816, 816-817 (1) (531 SE2d 386) (2000), we held that officers’ observation of the defendant hurrying out of an apartment complex breezeway that was known for heavy drug sales did not provide reasonable, articulable suspicion. And in State v. King, 227 Ga. App. 466, 468 (489 SE2d 361) (1997), we found no reasonable, articulable suspicion, where the officer observed the defendant and another person standing in front of an apartment complex in an area with high drug activity, in the middle of the night when the weather was below freezing, and where the defendant admitted that he did not live at that address and could not provide the officer with an explanation for his presence that satisfied the officer.

The officer in this case demanded that Hernandez-Espino give him the drugs because Hernandez-Espino walked out of an apartment building known for drug activity and could not name the person whom he had been visiting, and because the officer believed that he was lying. Nothing in the record suggests that the officer saw Hernandez-Espino do anything that appeared to be a criminal act. Compare Thompson v. State, 230 Ga. App. 131, 132 (495 SE2d 607) (1998) (finding reasonable, articulable suspicion for second-tier stop where officer saw defendant attempt to exchange something with another person in “what appeared to be a drug transaction” while standing in the middle of the street in a known drug area, and the defendant then told the officer he was on his way to his uncle’s house but could not provide his uncle’s name).

In this case, the facts testified to by the officer raised a subjective, unparticularized suspicion or hunch about Hernandez-Espino’s reasons for being at the apartment complex, but they did not provide an “objective manifestation that [he] was, or was about to be, engaged in criminal activity.” Holmes, 252 Ga. App. at 288. Consequently, the second-tier encounter was unlawful.

3. The unlawful second-tier encounter tainted HernandezEspino’s consent.

There is no question that Hernandez-Espino consented to the search. The remaining question is whether his consent was tainted by the unlawful second-tier encounter. We conclude that it was.

To justify the warrantless search on the ground of HernandezEspino’s consent, notwithstanding the unlawful second-tier encounter, the state was obligated to establish both that his consent

was voluntary and also that his consent was not the product of the illegal seizure, but rather was sufficiently an act of free will to purge the primary taint. . . . Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct.

State v. Popped, 277 Ga. 595, 597 (3) (592 SE2d 838) (2004) (citations and punctuation omitted). Accord Black v. State, 281 Ga. App. 40, 47 (635 SE2d 568) (2006); Pledger v. State, 257 Ga. App. 794, 800 (572 SE2d 348) (2002).

Here, the officer obtained the consent to search immediately after he unlawfully escalated the encounter to the second tier, and the record reveals no intervening circumstances that would attenuate the causal chain. See State v. Lanes, 287 Ga. App. 311, 313 (651 SE2d 456) (2007); Black, 281 Ga. App. at 48; Pledger, 257 Ga. App. at 800. “Consequently, [Hernandez-Espino’s] consent was not purged of the taint of the preceding illegality].” Pledger, 257 Ga. App. at 800. Our opinion in Johnson v. State, 313 Ga. App. 137 (720 SE2d 654) (2011) (physical precedent), cited by the trial court, does not require a different conclusion. We found in that case that the second-tier detention of the defendant was lawful. See id. at 139-140 (1). Moreover, because less than a majority of the voting judges concurred in the opinion in Johnson, that opinion is not binding precedent. See Court of Appeals Rule 33 (a).

Because Hernandez-Espino’s consent to search was not purged of the taint of the unlawful second-tier encounter, the trial court erred in denying his motion to suppress the evidence found during that search. See Pledger, 257 Ga. App. at 800.

Judgment reversed.

Phipps, C. J., Barnes, P. J., and Ellington, P. J., concur. Doyle, P. J., Boggs and Branch, JJ., dissent.

DOYLE, Presiding Judge,

dissenting.

Because the officer’s interaction with Hernandez-Espino did not rise to the level of a second-tier encounter and Hernandez-Espino voluntarily consented to the search of his person, I would affirm the trial court’s denial of the motion to suppress.

In a first-tier encounter, police may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.

“A citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.” A seizure or second-tier encounter “only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.” “[T]o initiate [a] second-tier encounter[, an officer] must make [himself] clear, as by giving an order or command.” Factors to consider when determining if words or conduct are considered a command include whether (1) the presence of several officers was threatening; (2) any weapon was displayed; (3) any physical touching occurred; or (4) any language or tone of voice indicated that the defendant was compelled to comply with the police requests. “In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.”

In State v. Dukes, involving a charge of obstruction, we affirmed the grant of a motion to suppress because the police encounter with Dukes was a first-tier encounter, not a second-tier encounter as argued by the State. The facts set forth in that opinion show that after receiving a report of drug dealing, officers approached Dukes and others and asked Dukes what he was doing. In response, Dukes said that he was “ ‘just sitting around.’ ” The officer then asked Dukes if he had identification, and Dukes responded it was in his vehicle. The officer asked Dukes if he had any drugs on him and if he would mind emptying his pockets onto the picnic table. Dukes placed the items on the table and then ran from the officers. We held that this interaction was a first-tier encounter because the officers did not seize Dukes, but instead, they simply approached and questioned him without effectuating a seizure.

The officer here was not threatening nor did he use a show of force, touch Hernandez-Espino, or employ language or a tone of voice that would have made Hernandez-Espino believe he was compelled to comply with the officer’s requests. The officer testified:

I made contact with him. I asked him if he lived here. He stated that he didn’t. I asked him what he was doing here. He said he was visiting a friend. I’m just, conversation, oh, yeah, really, who are you visiting. He pointed to the bottom apartment on the right, which I’m familiar with the residents of that building or residents of that apartment. And I just knew that he wasn’t telling the truth, so I said, man, just give me the drugs you just bought. He was like, I don’t have any drugs. And I said do you mind if I search you for guns or drugs. [] And he said — he said yeah, go ahead, kind of like yeah, yes.

Decided November 19, 2013.

Stephen M. Reba, for appellant.

Lee Darragh, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

As described by the officer — and believed by the trial court — the officer was simply engaged in a conversation with HernandezEspino.

The majority focuses on the officer’s later testimony that he “didn’t ask him if he bought drugs. I told him to give me the drugs he just bought.” This latter testimony occurred during questioning by the State in an effort to prove Hernandez-Espino understood English, not to establish whether the officer intended the statement as a command or request. As the officer previously testified, he was having a conversation with Hernandez-Espino and, as part of that conversation, told Hernandez-Espino to give him the drugs. This is no different than the officer in Dukes asking Dukes to empty his pockets.

Moreover, an officer’s use of the term “told” instead of “ask” during his or her in-court testimony should not be singularly determinative of whether an encounter is first- or second-tier. This is overly technical and requires officers to carefully consider their choice of words in an encounter that might take mere seconds or minutes. Instead, it is for the trial court to determine the credibility of the witnesses and evaluate whether the language used by an officer in conjunction with his presentation and tone of voice conveyed an intention to detain or merely converse with an individual.

The trial court heard the officer testify about the officer’s initial contact with Hernandez-Espino and determined that the officer conducted a first-tier stop. We should not second-guess that determination.

I am authorized to state that Judge Boggs and Judge Branch join in this dissent.

       Contrary to the dissent, it is of no significance that this testimony was preceded by testimony that the conversation was in English. Hernandez-Espino’s ability to speak English was at issue, and the prosecutor interspersed questions about his use of it throughout her presentation of the case.

       (Punctuation omitted.) Carter a State, 319 Ga. App. 624, 625-626 (737 SE2d 724) (2013).

       (Punctuation omitted.) Thomas v. State, 322 Ga. App. 734, 737 (2) (b) (746 SE2d 216) (2013).

       (Punctuation omitted.) Carter, 319 Ga. App. at 625.

        Thomas, 322 Ga. App. at 737 (2) (b).

       See State v. Dukes, 279 Ga. App. 247, 249 (630 SE2d 847) (2006).

       Id.

       Id.

       See id. at 247-248.

       See id. at 248.

       See id. at 249.

       Arequest to search made during the course of a first-tier encounter does not escalate the contact to a second-tier detention. See Carter, 319 Ga. App. at 626.

       First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

        Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013) (punctuation omitted).


author: MCMILLIAN, Judge.

text:
    A13A1586.
    HOPE ELECTRIC ENTERPRISES, INC. v. SCHINDLER ELEVATOR CORPORATION.
    (752 SE2d 5)
   MCMILLIAN, Judge.

Plaintiff/appellant Hope Electric Enterprises, Inc. (“Hope Electric”) appeals from the trial court’s order granting partial summary judgment to defendant/appellee Schindler Elevator Corporation (“Schindler”) on Hope Electric’s claim of wrongful termination of the parties’ contract. For the reasons set forth below, we now reverse.

The record shows that in October 2007, Schindler entered into a contract with the Metropolitan Atlanta Rapid Transit Authority (“MARTA”) to act as the general contractor on a project to rehabilitate escalators in MARTA stations throughout the Atlanta area (the “Prime Contract”). In June 2008, Schindler subcontracted with Hope Electric to perform certain electrical work for a portion of the project (“Subcontract”), and Hope Electric began working on the project later that year.

Hope Electric apparently worked on the project without any documented incidents until April 2010. On April 16, 2010, MARTA issued a Construction Safety Inspection Report citing Hope Electric for leaving an electrical closet door open on a train platform (“Violation 1”). According to the report of Violation 1, there were “no men [Hope personnel] at location” and the corrective action taken at that time included providing the “Station Manager” safety cones to protect the wires on the floor and barricades to protect the doorway. Further, the report indicated that verbal instructions were given not to leave the door open. And, according to a letter sent to Hope Electric on August 27, 2010, Schindler’s safety officer at the site conducted a safety review following the violation.

A few weeks later, on April 28, 2010, MARTA cited Hope Electric for removing a breaker from a live breaker panel without any MARTA personnel present (“Violation 2”). According to the report of Violation 2, Hope Electric was reprimanded at a progress meeting for this violation.

On August 9, 2010, a MARTA train operator whose train was stopped in the Georgia State station observed Hope Electric principal, Willie Hope, Jr., and another Hope Electric employee, James Reid, crossing “live” MARTA train tracks during normal operating hours (“Wayside Violation”). The report of the Wayside Violation also indicates that Willie Hope did not have proper MARTA identification on his person and that he became belligerent when questioned by MARTA police who came to the site. Willie Hope admitted in a meeting later that day with MARTA personnel and Mark Lester, Schindler’s project manager, that his access to this live track area was unauthorized, but refused to acknowledge that he had committed a safety violation.

During the meeting, MARTA revoked Hope Electric’s access to the project sites, and Schindler directed Hope Electric to cease all further work on the project until MARTA concluded its investigation. On August 27, 2010, Schindler sent a letter to Hope Electric stating that Schindler had discovered that electrical components at the Georgia Dome station were falling off the wall, apparently because they were not properly anchored. The letter also stated that this violation had been discovered since the Wayside Violation and referenced the other violations. The letter further notified Hope Electric that “[tjhese repeated problems are unacceptable” and directed that it repair the Georgia Dome station problems. However, the letter also reiterated that Hope Electric could not perform any work on the project, including repairing the Georgia Dome station components, until MARTA completed its investigation and determined the “required corrective action” for the Wayside Violation.

On August 30, 2010, MARTA sent a letter to Lester directing Schindler to immediately remove Hope Electric from the project based on the “severity of [the] recent [Wayside] infraction, coupled with the previous incidents[.]” On September 10, 2010, Schindler provided Hope Electric a copy of the August 30 MARTA letter. On September 20,2010, Schindler sent a letter notifying Hope Electric of the immediate termination of the Subcontract. The letter also stated that Schindler had “no choice” but to terminate the Subcontract based on MARTA’s August 30 letter.

Hope Electric subsequently filed a complaint against Schindler, alleging Schindler breached the Subcontract by, among other things, wrongfully terminating the Subcontract. Schindler moved for partial summary judgment on this claim, and the trial court granted Schindler’s motion. Hope Electric timely filed the present appeal challenging that order. We agree with Hope Electric that the trial court erred by granting summary judgment to Schindler on the wrongful termination claim.

1. We turn first to the provisions of the Prime Contract and Subcontract which are relevant to our analysis. The primary provision of the Subcontract at issue here is Section 7.2.1, which provides as follows:

If the Subcontractor repeatedly fails or neglects to carry out the Work in accordance with the Subcontract Documents or otherwise to perform in accordance with this Subcontract and fails within a ten-day period after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, by written notice to the Subcontractor and without prejudice to any other remedy the Contractor may have, terminate the Subcontract and finish the Subcontractor’s Work by whatever method the Contractor may deem expedient. . . .

And Hope Electric had a specific duty to perform its work safely under Section 4.3.1 of the Subcontract.

Schindler argues that these provisions authorized the termination of the Subcontract based on the “overwhelming evidence of four safety violations in five months time,” including the “very serious Wayside Violation.” On the other hand, Hope Electric argues that a jury must decide whether it “repeatedly fail [ed] or neglect [ed] to carry out the Work in accordance with the Subcontract^]” whether it “fail[ed] within a ten-day period after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness [;]” and whether its denial of access to the project site prevented it from taking any action to address the alleged deficiencies in its work. We agree with Hope Electric that a jury must decide these issues.

We start with the pivotal issue, which is whether Hope Electric “repeatedly” failed or neglected to carry out the work or perform in accordance with the Subcontract. “Repeatedly” is not defined or otherwise limited in the Subcontract, and there is nothing to indicate the parties did not intend for it to be given its “usual and common signification.” OCGA § 13-2-2 (2). And in such cases, we often find it useful to turn to a dictionary to supply the plain and ordinary meaning of a word. Harkins v. CA 14th Investors, 247 Ga. App. 549, 550 (544 SE2d 744) (2001).

According to the American Heritage Dictionary, http:// ahdictionary.com/word/search, “repeatedly* is an adverb meaning “said, done, or occurring again and again.” However, this definition does not aid us much, as even a word of common understanding and usage may be ambiguous depending on the context in which it is used. See Archer Western Contractors, Ltd. v. Pitts, 292 Ga. 219, 225-226 (2) (735 SE2d 772) (2012). An ambiguity results when there is “duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and it also signifies being open to various interpretations.” (Citation and punctuation omitted.) McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 602 (2) (b) (660 SE2d 397) (2008). E.g., Freund v. Warren, 320 Ga. App. 765, 769, n. 4 (740 SE2d 727) (2013).

As used in the Subcontract, we believe that the term “repeatedly* is such an indistinct and uncertain term. The Subcontract provides no reference point to determine what constitutes a “repeated” violation or failure to perform, and there is no indication of how many occurrences there must be before the contractor is authorized to terminate the Subcontract pursuant to this provision. And the Subcontract is uncertain concerning what, if any, considerations beyond mere number of violations are relevant to this determination. For example, Schindler suggests that the temporal proximity of the violations should be taken into account and consideration of the total length of time the subcontractor has worked on the project is irrelevant. Thus, Schindler argues that termination of the Subcontract was authorized in this case because four violations occurred within five months of each other. Hope Electric, however, says what is relevant is that it had worked on the project for almost two years before the first violation was documented, and, even assuming that three to four violations have occurred within five months, relatively few violations have occurred over the total time span it has been working on the project. These arguments serve to illustrate the uncertainty of the meaning of the term “repeatedly.” And because we cannot resolve this ambiguity by applying the usual rules of construction to ascertain the intent of the parties, a jury must resolve the issue of what the ambiguous language means. E.g., White v. Kaminsky, 271 Ga. App. 719, 721 (610 SE2d 542) (2004).

Further, we do not believe that the facts are as clear, much less overwhelming, that there have been four properly documented occurrences over a five-month time period as Schindler’s asserts. For example, the Georgia Dome violation, which appears to involve the use of improper anchors, was mentioned for the first time in Schindler’s letter to Hope Electric on August 27, 2010, and the letter states only that the problem was discovered after the Wayside Violation but does not state when the actual violation occurred. And the Georgia Dome violation appears to relate to a work performance issue, not a safety violation like the other three violations, which also belies Schindler’s assertion that termination was authorized by the “overwhelming evidence of four safety violations in five months time.” (Emphasis supplied.)

Moreover, and pretermitting whether Hope Electric committed three or four violations and pretermitting whether that number of violations constitutes a repeated failure to perform, the Subcontract also appears to require that Hope Electric be given an opportunity to cure any failures or deficiencies in its work before termination of the Subcontract is authorized. Section 7.2.1 plainly states that there must be a repeated failure or neglect by the subcontractor to perform its work “and fail[ure] within a ten[-]day period after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness [.]” (Emphasis supplied.) Here, as Hope Electric argues, it does not appear that it had notice, written or otherwise, of the Georgia Dome violation until after it had been ordered off the site, and thus it appears without contradiction that Hope Electric was never given an opportunity to correct this alleged deficiency. Further, the evidence concerning Violation 1 is unclear concerning when Hope Electric was provided notice. The report issued at the time of Violation 1 indicates that no Hope Electric workers were on site, and that the station manager was given barriers and told not to leave the door open. And although the August 27, 2010 letter to Hope Electric stated that “a safety review was conducted by Schindler’s Safety Officer on site following this violation,” the letter does not state with whom the safety review was conducted.

But Schindler argues that under the “doctrine of futility,” it was not required to give Hope Electric notice and an opportunity to correct the safety violations because these violations were not curable by corrective measures. Hope Electric counters that, among other reasons, Schindler cannot rely on the doctrine of futility because it did not raise this issue in the trial court. In response to that assertion, Schindler has filed a supplemental brief and provided us with the transcript from the hearing on motion for partial summary judgment, which reveals that it did raise the issue during the hearing. Further, Schindler argues that even though the trial court did not expressly mention the futility doctrine in its summary judgment order, it is nevertheless appropriate for us to affirm the trial court’s order under the “right for any reason” rule.

As our Supreme Court recently explained:

“[A] grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” Anderson v. Jones, 322 Ga. App. 311, 312, n. 2 (745 SE2d 787) (2013).

(Emphasis in original.) Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013). In this case, however, we need not decide whether this argument is properly before us because a jury must decide whether there have been repeated violations of the Subcontract before this issue is reached. We do reiterate, however, that unlike the safety violations, the Georgia Dome violation appears to involve a work performance issue, which Hope Electric possibly could have corrected had it been given a chance. Thus, it would appear that even accepting Schindler’s premise, the futility doctrine would not apply to that violation. Additionally, even a safety violation could be corrected in the sense that it not be repeated in the future.

In sum, a jury must decide whether Hope Electric repeatedly failed or neglected to perform in accordance with the Subcontract. If a jury determines that there were repeated failures to perform, then it must also decide whether Schindler was required to give, or did in fact provide, notice and an opportunity to correct the alleged violations.

2. We also consider whether termination was authorized by Part 1.05C, Section 01048 of the Prime Contract, which was cited by MARTA in its letter directing Schindler to remove Hope Electric from the project. That section provides:

Contractor’s personnel shall not walk across revenue track during revenue hours. Accomplish work within the limits of the Authority’s operating rail system in accordance with the WAYSIDE ACCESS PROCEDURE, Appendix A of this Section. Unauthorized entry by Contractor personnel into the Authority’s operating rail system having energized third rail and operating track (which are under WAYSIDE ACCESS control) shall be cause for those personnel to be permanently dismissed from the Project. Contractor personnel working within limits of the Authority’s operating rail system shall have an Authority contractor’s identification badge and safety badge prominently displayed on their person.

Decided November 19, 2013.

Vaughn, Wright & Boyer, Frederick L. Wright II, for appellant.

Schreeder, Wheeler & Flint, J. Carole Thompson Hord, for appellee.

On its face, this provision bars only “those personnel” who commit a Wayside Violation from the project and provides no basis to dismiss or terminate the contractor or subcontractor who employs them. And although one of the offending workers in this case was Hope Electric principal Willie Hope, Jr., Hope Electric submitted an affidavit specifically stating that it has other employees who were qualified to work on the project. Accordingly, termination of the Subcontract was not authorized by this provision, and the trial court’s grant of partial summary judgment to Schindler cannot be upheld on this basis.

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

       The provisions ofthe Prime Contract were made part of the Subcontract in Article 1, § 1.1 of the Subcontract.

       That section provided that Hope Electric
      shall take reasonable safety precautions with respect to performance of this Subcontract, shall comply with safety measures initiated by the Contractor and with applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities for the safety of persons and property in accordance with the requirements of the Prime Contract.

       Although we are mindful that Schindler had been placed in a difficult position because it had been directed by MARTA to terminate Hope Electric, Schindler does not assert that there was any provision in the Prime Contract or Subcontract that authorized Schindler to terminate the Subcontract merely because MARTA directed Schindler to do so.

       This should not be read to state that the violations must all he of the same character for that is another question that is uncertain and must be answered by a jury.

       Indeed, Schindler’s August 27, 2010 letter to Hope Electric states that once MARTA determined its course of action for the Wayside Violation, Hope Electric “must repair the problems at the above referenced unit, Dome #3, immediately.”