author: Peterson, Judge.

text:
    A16A0738.
    JACKSON v. THE STATE.
    (793 SE2d 201)
   Peterson, Judge.

The Spanish Inquisition and the English Court of Star Chamber shared a common practice: secret trials. See In re Oliver, 333 U.S. 257, 268-69 (68 S. Ct. 499, 92 LE 682) (1948). To prevent the recurrence of similarly abusive institutions, English common law developed a requirement that trials be public. Id. at 268 & n.21. This mandate that trials be public is firmly established in both the United States Constitution and the Georgia Constitution. See U.S. Const. Amend. VI; Const, of Ga. 1983, Art. I, Sec. I, Par. XI (a). These constitutional commands do not depend on the nature of the crime charged, or on how certain we are of the accused’s guilt. Only under very limited circumstances and by using very specific procedures can a trial court close part of a trial; failure to follow those procedures is error. And so it is here. Randy Jackson was accused of heinous crimes against his own stepdaughter, and the evidence against him was overwhelming (and largely undisputed). Nevertheless, we must reverse his conviction because the trial court closed the courtroom for the testimony of the victim without following the procedures mandated by the Supreme Court of the United States to safeguard a defendant’s right to a public trial.

Jackson was indicted in 2007 for sexual offenses against his stepdaughter, R. S., that began when R. S. was 11 years old. Prior to jury trial, the State filed a motion to close the courtroom during R. S.’s testimony. The State specifically requested that the courtroom be closed to keep “members of [Jackson’s] extended family, as well as any other persons or unnecessary courtroom personnel, out of the courtroom during the course of [R. S.’s] testimony,” for the purpose of protecting R. S. and ensuring that her testimony was not influenced by any spectator.

At a November 2007 hearing on the State’s motion, the State argued that R. S., who was then 16 years old, would have to testify about allegations that “are most personal violations, which are sexual in nature” and wouldbe “very gruesome” because they involved her stepfather, Jackson. In support of its motion, the State relied upon OCGA §§ 17-8-53 and 17-8-54, and asked the court to close the courtroom to Jackson’s family and to all non-essential courtroom personnel. Jackson objected to the closing of the courtroom and argued that there were no aggravating circumstances requiring the closing of the courtroom because R. S. would be almost 17 years old at the time of the trial and there were no allegations that the offenses were committed by force or violence. The trial court took the matter under advisement.

At a subsequent motions hearing, the trial court stated that it would grant the State’s motion to close the courtroom. When the trial court asked the State to confirm whether it wanted the courtroom closed only to Jackson’s family members, the State responded that it wanted the courtroom closed to any person who was not necessary to the trial, including family members. The court reiterated that it was granting the State’s motion.

Jackson’s trial took place in November 2007. When the State called R. S. to testify, it asked the trial court to clear the courtroom of all unnecessary personnel. The court then addressed the courtroom and stated:

Ladies and gentlemen, those of you in the courtroom, I’m going to ask you to leave during the testimony of this witness, unless you are a law enforcement officer or somehow or otherwise involved in the court system.

The transcript notes reflect that the courtroom was then cleared and R. S. took the stand to testify.

R. S. was 16 years old at the time of the trial. R. S. testified that Jackson first made her touch his penis when she was 11, he began touching her breasts and genital area soon after, and then this touching led to daily sexual intercourse or oral sex by the time she was 12. R. S. resisted the touching and intercourse at first, but she feared getting hurt if she resisted and later began to accept the abuse as “normal” as it occurred “pretty much every day.”

Jackson was convicted of incest, statutory rape, child molestation, and two counts of aggravated child molestation. The trial court sentenced Jackson to a total of 50 years to serve. Jackson appeals from the denial of his motion for new trial.

1. The evidence was sufficient to support each of Jackson’s convictions.

Jackson does not challenge the sufficiency of the evidence to sustain his convictions. In fact, he concedes that the evidence was legally sufficient. Despite his concession, we nevertheless independently review the evidence and conclude that it was sufficient to support each of his convictions.

The victim, R. S., was Jackson’s stepdaughter and testified that Jackson made her touch his penis when she was 11, he began touching her breasts and genital area soon after, this touching led to daily sexual intercourse, and then they began performing oral sex on each other when she was 12. The testimony of a single witness is generally sufficient to establish a fact. See former OCGA § 24-4-8. Based on the evidence that Jackson had sexual intercourse with his stepdaughter, the jury was authorized to find him guilty of incest. See OCGA § 16-6-22(a)(l) (a father commits the offense of incest when he engages in sexual intercourse with a stepchild). The victim testified that she was 12 years old when she began having daily sexual intercourse with Jackson, and her testimony was corroborated by Jackson’s admission to committing the acts. Thus, the evidence was sufficient to sustain Jackson’s conviction for statutory rape. See OCGA § 16-6-3 (a person commits the offense of statutory rape when he engages in sexual intercourse with a person who is under the age of 16 years and is not his spouse, but the unsupported testimony of a victim is insufficient to establish the offense); Perdue v. State, 250 Ga. App. 201, 202-03 (1) (551 SE2d 65) (2001) (the victim’s testimony that she had sex with her stepfather, the defendant, beginning when she was 12 years old was corroborated by, among other things, the defendant’s admissions, and therefore the evidence was sufficient to support the statutory rape convictions).

The victim also testified that Jackson sometimes put his finger inside her vagina when she was about 14 or 15 years old, and this was sufficient to support his conviction for child molestation. See OCGA § 16-6-4(a)(l) (a “person commits the offense of child molestation when such person ... does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person”). The victim also stated that Jackson performed oral sex on her and she performed oral sex on him, which was sufficient to support his two convictions for aggravated child molestation. See OCGA § 16-6-4(c) (the offense of aggravated child molestation occurs when a person commits an offense of child molestation that involves an act of sodomy).

2. Jackson’s conviction must be reversed because the trial court erred by closing the courtroom.

Jackson argues that the trial court erred when it completely closed the courtroom to all non-essential courtroom personnel. Jackson argues that (1) the State did not advance an overriding interest to justify a closure, (2) the total closure was overbroad and unnecessary to protect any interest articulated by the State, and (3) the court failed to make specific factual findings to show that the closure was necessary and narrowly tailored. We agree with Jackson’s last argument, and reverse his conviction.

(a) The closure of the courtroom was total.

Before addressing the merits of Jackson’s argument, we must consider the State’s assertion that the courtroom was closed only to Jackson’s family members and that Jackson failed to preserve any challenge to this partial closure because, although he objected to a complete closure, he did not specifically object to a partial closure. A partial closure occurs when some members of the public are permitted to attend, while a total courtroom closure involves exclusion of all members of the public. See Bucci v. United States, 662 F3d 18, 23 (II) (A) (1st Cir. 2011); Judd v. Haley, 250 F3d 1308, 1315 (11th Cir. 2001). This distinction matters because when the courtroom is only partially closed to spectators, “the impact of the closure is not as great, and not as deserving of such a rigorous level of constitutional scrutiny” Delgado v. State, 287 Ga. App. 273, 280 (2) (651 SE2d 201) (2007) (punctuation and footnote omitted).

The State’s assertion that the courtroom was only partially closed is wholly unsupported by the record. The State asserts that it moved to remove only Jackson’s family from the courtroom, not for a total closure. The State further argues that, because the court granted that motion, the record shows that the court only partially closed the courtroom. But the record clearly shows that the State moved to close the entire courtroom. In its motion, the State specifically requested that the courtroom be closed to exclude Jackson’s extended family, “as well as any other persons or unnecessary courtroom personnel[.]” The State reiterated this request at least twice. At a November 2007 hearing, the State asked for “closure of the courtroom of non-courtroom personnel.” At a subsequent hearing, after the trial court took the matter under advisement, the trial court asked the State to confirm whether it wanted closure of the courtroom only to family members. In response, the State said:

Your Honor, actually, the motion was to close the courtroom to any personnel who is not necessary to the trial, specifically, the family members, but also to anyone else who is not necessary during this.

Despite the State’s clear and unequivocal statements to the trial court asking to remove everyone but essential courtroom personnel, the State baldly asserts on appeal that it sought to exclude only Jackson’s family members. This is nonsense.

Before R. S. took the stand, the trial court stated:

Ladies and gentlemen, those of you in the courtroom, I’m going to ask you to leave during the testimony of this witness [R. S.], unless you are law enforcement or somehow or otherwise involved in the court system.

The transcript then shows that the courtroom was cleared. There is no doubt that the trial court excluded everyone in the courtroom except law enforcement, the parties, their counsel, and courtroom personnel.

Rather than admit that the courtroom was completely closed for R. S.’s testimony, the State doubles down and argues that members of the press are courtroom personnel. The State argues that, because the press is part of the courtroom personnel, it was inherent in the court’s ruling that the press was not removed from the courtroom. If the State’s first argument is nonsense — and it is — then this argument is nonsense on stilts. The record shows a total closure of the courtroom. The State has not identified — and we have not found — a shred of evidence that any member of the press was present for any part of the trial, much less was allowed to remain for R. S.’s testimony. We now turn to whether the trial court erred in ordering a total closure of the courtroom.

(b) The trial court erred by closing the courtroom without making findings.

The Sixth Amendment to the United States Constitution, applicable to the states, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury[.]” U.S. Const. Amend. VI; see also Kesler v. State, 249 Ga. 462, 471 (7) n.5 (291 SE2d 497) (1982). The Georgia Constitution also guarantees criminal defendants the right to a public trial. Const, of Ga. 1983, Art. I, Sec. I, Par. XI (a). Although of vital importance, a defendant’s right to a public trial is not unlimited; it “may give way in certain cases to other rights or interests[.]” Waller v. Georgia, 467 U.S. 39, 45 (II) (A) (104 S. Ct. 2210, 81 LE2d31) (1984); see also Purvis v. State, 288 Ga. 865, 869 (1) (708 SE2d 283) (2011). The circumstances in which a defendant’s Sixth Amendment right may be limited are “rare” and “the balance of interests must be struck with special care.” Waller, 467 U.S. at 45 (II) (A). And Georgia law is more protective of the right to a public trial than federal law. (See Purvis, 288 Ga. at 866 (1). As a result, trial courts of this state have “less discretion than [their] federal counterpart[s] because our constitution commands that open hearings are the nearly absolute rule and closed hearings the very rarest of exceptions.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 579 (4) (292 SE2d 815) (1982).)

The Supreme Court of the United States has articulated the framework governing courtroom closures. Before the trial court can exclude the public from any stage of a criminal trial,

[t]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Presley v. Georgia, 558 U.S. 209, 214 (130 S. Ct. 721, 175 LE2d 675) (2010) (citing Waller, 467 U.S. at 48); see also Hunt v. State, 268 Ga. App. 568, 571 (1) (602 SE2d 312) (2004). To ensure that courtroom closure remains the rare exception rather than the rule, our Supreme Court has mandated that a movant seeking closure demonstrate by “clear and convincing proof” that “no means available other than closure of the hearing will serve to protect the right of the movant.” Lumpkin, 249 Ga. at 580 (5). “Clear and convincing proof necessarily involves concrete, tangible evidence that can be made part of and attached to the record to enable appellate review of a trial court’s decision on an issue of constitutional magnitude.” Rockdale Citizen Pub. Co. v. State of Ga., 266 Ga. 579, 580 (468 SE2d 764) (1996) (punctuation omitted). The improper closure of a courtroom is a structural error that must be remedied even without any showing of direct harm. Reid v. State, 286 Ga. 484, 488 (3) (c) (690 SE2d 177) (2010).

The closure here did not comply with constitutional requirements because the trial court made no findings adequate to support the closure, including a consideration of reasonable alternatives. Waller, 467 U.S. at 45, 48; Lumpkin, 249 Ga. at 580 (6). Waller requires that the court enter a written order with findings to support the closure before excluding members of the public from a criminal hearing. See Presley, 558 U.S. at 213-14; see also Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 14 (106 S. Ct. 2735, 92 LE2d 1) (1986) (a hearing can be closed only upon specific findings that the movant’s interests will be prejudiced and that reasonable alternatives to closure cannot protect the movant’s rights). Our Supreme Court has held that the trial court is required to enter an order making specific findings explaining why the closure is no “broader than necessary to protect” the movant’s interest, including a full articulation of “the alternatives to closure considered by the trial court and the reason or reasons why such alternative would not afford the movant with an adequate remedy.” Lumpkin, 249 Ga. at 580 (6). “These requirements cannot be avoided[.]” Id.; see also Stephens v. State, 261 Ga. 467, 470 (7) (405 SE2d 483) (1991) (trial court failed to follow Lumpkin requirements when it did not make written findings of fact and conclusions of law). Because the trial court was required to make findings before closing a courtroom and did not, the closing of the courtroom was structural error .Presley, 558 U.S. at 212-16 (reversing because, even though the state court provided reasons for closing the courtroom, it erred by failing to articulate that it considered and rejected alternative measures); Lumpkin, 249 Ga. 580 (6).

In so deciding, we readily acknowledge that the State has a compelling interest in protecting minor victims of sex crimes from further trauma that would arise from testifying in public regarding the crimes against them. See, e.g., Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 607 (III) (B) (102 S. Ct. 2613, 73 LE2d 248) (1982) (agreeing with state that “safeguarding the physical and psychological well-being” of minor victims of sex crimes is a compelling interest that can warrant closing a courtroom on a case-by-case basis, although holding unconstitutional state statute mandating closure in all such cases). But the existence of such a compelling interest, while necessary, is not sufficient; the other prerequisites for closure must also be satisfied, and here they were not.

(c) The remedy for the trial court’s error is reversal of Jackson ’s convictions.

The trial court’s error requires reversal of Jackson’s convictions, but we do not reach this conclusion lightly A violation of a defendant’s constitutional right to a public hearing does not automatically result in a new trial. In Waller, the seminal case on the issue of courtroom closures, the Supreme Court of the United States did not order a new trial after concluding that the defendant’s Sixth Amendment rights were violated when the trial court closed the entire hearing on a motion to suppress. In fashioning a remedy that was “appropriate to the violation,” the Supreme Court noted that it would be a windfall for the defendant, and not in the public interest, to order a new trial on account of a closed suppression hearing because it was possible that the same evidence would be suppressed. Waller, 467 U.S. at 50 (II) (C). The Supreme Court then determined that the appropriate remedy was to remand the case to the state court to decide what portions, if any, of the suppression hearing may be closed and then hold a new suppression hearing. The state court was to hold a new trial only if additional, material evidence was suppressed or if there was a material change in the positions of the parties. Id.

The principle that the remedy should be “appropriate to the violation” to correct a trial court error has been applied in other contexts. Appellate courts have remanded for Jackson-Denno hearings and for in-camera inspections by trial courts pursuant to Brady motions without requiring entirely new trials. See also Cochran v. State, 256 Ga. 113, 118-19 (a), (b) (344 SE2d 402) (1986) (Weltner, J„ concurring) (discussing correction of pre-trial errors without reversing convictions). In noting that an appellate court is not always required to choose between affirming or reversing a defendant’s conviction, but that remand may be an appropriate solution, Justice Weltner explained:

We have stated too often to require citation that an accused is entitled to a fair trial, not a perfect one. It is not essential (indeed, it is subversive to justice) that a defendant should be accorded a new trial, with all its cost, delay and frustration, because of some deficiency — unless it has deprived him of a fair trial. In that regard, the remand concept has been healthy for criminal justice, bringing it closer to that reality which the public expects and demands from our judicial system.

Decided November 3, 2016.

Margaret E. Heinen, for appellant.

Stephen A. Bradley, District Attorney, Dawn M. Baskin, Assistant District Attorney, for appellee.

Id. at 121 (d) (emphasis in original).

We have considered remand as an alternative in this case, but that remedy is not available here. In Waller, only the suppression hearing was closed, and the Supreme Court of the United States directed that a new suppression hearing be held (in addition to requiring the trial court to make new findings regarding closure prior to the new hearing). But here, the court closed the courtroom during the most critical testimony of the trial itself. There is no way to remedy that error short of a new trial. As reluctant as we are to require the victim to testify again, we have no choice but to reverse Jackson’s convictions. Nevertheless, the evidence was sufficient to support his convictions; he may be retried.

Judgment reversed and case remanded.

Phipps, P. J., and Dillard, J., concur.

       The State also filed a motion to close the courtroom for the testimony of R. S.’s sister, but it later withdrew that request.

       We note the substantial delay in resolving Jackson’s motion for a new trial. Jackson timely filed his motion for new trial in December 2007, the trial court held a hearing on the motion for new trial in September 2011, and the court finally entered an order denying the motion in November 2015. There is no explanation for the almost four-year delay from the time Jackson filed his motion until the trial court held the September 2011 hearing. The reasons for the subsequent delay are equally unclear. Jackson obtained new counsel after his trial, and new defense counsel asked the trial court to leave the record open at the September 2011 hearing in order to call trial counsel as a witness in support of Jackson’s ineffective assistance of counsel claims. But the record does not show that any additional hearings ever took place. Jackson represents that the trial court held additional hearings in May 2014 and October 2014, and the State accepts Jackson’s representation. No transcripts of any additional hearings were provided, however, and according to the trial court clerk, no hearings actually occurred. Even if the hearings took place, there is no explanation for why it took almost three years for that to happen. We take this opportunity to, once again, remind the bench and the bar that
      this sort of extraordinary post-conviction, pre-appeal delay puts at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. It is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. That duty unfortunately was not fulfilled in this case.

        Robinson v. State, 334 Ga. App. 646, 647 (1) (780 SE2d 86) (2015) (punctuation and footnote omitted).

       Georgia’s old Evidence Code applies here because this case was tried prior to January 1, 2013.

       In criminal cases, the movant need not be a formal party. Lumpkin, 266 Ga. at 580 (5).

       The State argues that Jackson did not propose any reasonable alternatives to the trial court. But a trial court is required to consider alternatives to closure even when they are not offered by the parties. See Presley, 558 U.S. at 214. In any case, the trial court erred by not entering written findings on this issue.

       In light of our holding, we need not address Jackson’s challenges to his sentences.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A16A1122.
    TAYLOR v. THE STATE.
    (793 SE2d 198)
   PHIPPS, Presiding Judge.

A jury found Melvin Taylor guilty of two counts each of child molestation, aggravated child molestation, and statutory rape, one count of rape, and one count of influencing a witness. Taylor appeals his convictions, arguing that the trial court erred in admitting certain evidence. For the reasons set forth below, we disagree and affirm.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that in March 2010, T. L., who lived primarily with her grandmother, was visiting her mother for the weekend at the home her mother shared with Taylor, T. L.’s younger sister and brother, and Taylor’s two young children. One night, after everyone else had gone to bed, Taylor came into the living room where T. L., then 14 years old, was lying on the couch. Taylor grabbed T. L.’s breasts, pulled down her pants and underwear, and performed oral sex on her. Taylor then had vaginal intercourse with T. L.

The following night, Taylor grabbed T. L.’s arm while she was watching television in the living room with her 11-year-old sister, Q. J. Taylor forced T. L. into the den and directed her to perform oral sex on him. Taylor then returned to the living room where he grabbed Q. J. and pushed her into the den. Taylor pushed Q. J. onto the sofa, pulled down her pants and underwear, and “stuck his penis in [her] vagina.”

T. L. returned home and disclosed the assault to her aunt and grandmother, who called the police. After Q. J. was removed from her mother’s home, her mother and Taylor telephoned her together. Taylor toldQ. J. that, if she told what happened, he could get 15 years in prison, Q. J.’s mother could get in trouble, and that Q. J. could “go to juvenile.”

At trial, both T. L. and Q. J. testified as to what Taylor had done to them. T. L. also testified that she had seen Taylor grab Q. J. and push her into the den, closing the door. T. L. described that she had heard “squeaking” and “slapping” noises coming from the den. And when Q. J. came out of the den ten or fifteen minutes later, T. L. had observed that she was walking “funny.”

The state also presented DNA evidence from a rape kit performed on T. L. the day after her outcry A pediatric nurse practitioner, who was qualified as an expert in child sexual assault examinations, testified that she had performed the rape kit on T. L. The rape kit, as well as buccal swabs and hair from Taylor, were sent to the Georgia Bureau of Investigation (“GBI”). A forensic biologist with the GBI testified that she had concluded that the DNA obtained from T. L.’s vaginal and cervical swabs matched that of Taylor.

1. Taylor argues that the trial court erred by allowing testimony about an allegedly similar transaction because there were “no similarities” between the testimony and the acts alleged by T. L. and Q. J.

We review a trial court’s decision to admit similar transaction evidence for abuse of discretion. Moreover, “when considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” “As a general rule, the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence.”

After holding a preliminary hearing, the court allowed the testimony of J. K. as a similar transaction to show course of conduct, bent of mind, and lustful disposition. J. K., Taylor’s sister, testified at trial regarding an incident that occurred when she was nine or ten years old and Taylor (who was four or five years older than her) was a teenager. J. K., who was 26 years old at the time of trial, recalled playing “mommies and daddies” with Taylor and a group of cousins, all of whom were younger than Taylor. J. K. explained that the game involved “[s]exual contact,” like “touching and feeling,” kissing on the mouth, and touching private parts.

While playing “mommies and daddies,” Taylor only touched J. K.’s arm. At one point, he asked if J. K. would tell anyone if he kissed her on the mouth. She replied that she would tell her mother. On a second occasion, Taylor asked J. K. to play “mommies and daddies,” but she refused, having concluded that it was “not appropriate” to play such a game with her brother.

We find no abuse of discretion in the admission of J. K.’s testimony as it tends to show Taylor’s lustful disposition toward young girls and “inappropriate or questionable behavior,” even though the prior conduct was not illegal and there was thus no prior police report and investigation. Moreover, the incident, which occurred about 15 years prior to the crimes at issue, was not too remote in time to the charged crimes. “Where, as here, the similar transaction evidence is otherwise admissible, a time lapse such as this one goes to the weight and credibility of the evidence and does not demand its exclusion.”

2. Taylor contends that the trial court erred by admitting evidence that he was hiding under a bed during a prior arrest and that he was wearing a dress when taken into custody for that crime.

“We review a trial court’s evidentiary rulings under an abuse of discretion standard of review. . . . [Hjowever, we accept a trial court’s factual findings unless they are clearly erroneous.”

Prior to trial, Taylor filed a motion in limine to exclude evidence regarding his criminal history and arrests. Specifically, Taylor sought to exclude evidence that, when he was arrested on a prior charge, he was found hiding under a bed. After his arrest, Taylor made a statement to law enforcement, which referenced a possible obstruction charge. Taylor argued that this evidence was not admissible as a similar transaction because he was not charged with obstruction in the current case. The trial court ordered the state to redact from Taylor’s statement any reference to a possible obstruction charge.

At trial, the state introduced as similar transaction evidence that Taylor had molested the young child of his former girlfriend. The acts committed on this child had led to Taylor’s arrest.

The police officer who had arrested Taylor testified that she found Taylor “under the bed” and that she had to tell him to come out several times before he did so.

A child protective services worker also testified that she had investigated the case and created a safety plan for the child. The worker was at the police station when Taylor was brought in to the station. She described her observations regarding Taylor’s custodial interview, testifying that Taylor had admitted that he had been hiding under the bed when officers came to the house. She added that Taylor was wearing a black dress during the interview: “I believe when they went to get him and he was under the bed he did not have a shirt on and ... he pointed out to grab a black item on the floor or somewhere and they got that item for him to wear. . . . And it just ended up being a dress.”

Assuming without deciding that Taylor’s motion in limine and objection at trial preserved this issue for appeal, any error in admitting testimony regarding the circumstances of Taylor’s prior arrest was harmless in light of the overwhelming evidence of Taylor’s guilt, including the testimony of the two victims and the DNA evidence.

Decided November 3, 2016.

Teresa L. Doepke, for appellant.

Layla H. Zon, District Attorney, Cara R. Fiore, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       OCGA § 16-6-4 (a).

       OCGA § 16-6-4 (c).

       OCGA § 16-6-3 (a).

       OCGA § 16-6-1 (a).

       OCGA § 16-10-93.

         See Alvarado v. State, 257 Ga. App. 746, 747 (1) (572 SE2d 18) (2002).

        Pareja v. State, 286 Ga. 117, 121 (686 SE2d 232) (2009).

       Id. (citation and punctuation omitted).

        Woods v. State, 304 Ga. App. 403, 406 (2) (696 SE2d 411) (2010) (citation and punctuation omitted; emphasis in original).

       Taylor was tried in 2012, prior to the effective date of Georgia’s new Evidence Code. See Ga. L. 2011, pp. 99, 100, § 1 (adopting the new Code as of January 1, 2013). “Under the law then in effect, ‘course of conduct’ was considered a proper purpose for admitting similar transaction evidence.... Under the new Evidence Code, similar transaction evidence may be admissible for purposes including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Redding v. State, 297 Ga. 845, 848 (2) n. 2 (778 SE2d 774) (2015) (citations and punctuation omitted).

       See Leaptrot v. State, 272 Ga. App. 587, 597 (3) (a) (612 SE2d 887) (2005). See also Bibb v. State, 315 Ga. App. 49, 51 (2) (b) (726 SE2d 534) (2012).

       See Leaptrot, supra at 599 (3) (c) (noting that courts have upheld admission of evidence where the similar transaction occurred 11-19 years prior to the crime at issue).

       Id. (citation and punctuation omitted).

        Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012) (citation and punctuation omitted).

       But see Hernandez v. State, 291 Ga. App. 562, 564 (1) n. 2 (662 SE2d 325) (2008) (“A motion in limine preserves an issue for appeal without a contemporaneous objection at trial, but this rule cannot be invoked to preserve a different, if perhaps related, error.”) (citation and punctuation omitted).

       See Lowe v. State, 317 Ga. App. 442 , 444 (731 SE2d 127) (2012) (“The erroneous admission of evidence is harmless where it is highly probable that the error did not contribute to the verdict in light of the otherwise overwhelming evidence of guilt.”) (citation and punctuation omitted).


text:
    A16A1475.
    GREENBERG FARROW ARCHITECTURE, INC. v. JMLS 1422, LLC.
    (791 SE2d 635)
   Peterson, Judge.

Greenberg Farrow Architecture, Inc. (“Greenberg Farrow”) brought this lawsuit against JMLS 1422, LLC (“JMLS”), alleging that JMLS had violated the terms of an agreement regarding a parking deck. The trial court granted JMLS’s motion for partial summary judgment on Greenberg Farrow’s claims of breach of contract, conversion, and declaratory judgment. Greenberg Farrow appeals, arguing the trial court erred by (1) finding that the terms of the agreement are ambiguous; (2) concluding no material issues of fact regarding the intent of the parties to the agreement remained; (3) concluding that Greenberg Farrow waived its right to contest the meaning of the pertinent agreement provision; and (4) granting partial summary judgment to JMLS notwithstanding that Greenberg Farrow is owed damages even under the trial court’s interpretation of the agreement. Because we agree that the trial court erred both by finding the agreement in question ambiguous and by finding that Greenberg Farrow waived its rights as a matter of law, we reverse the grant of summary judgment to JMLS on Greenberg Farrow’s claims for breach of contract and declaratory judgment. Because Greenberg Farrow does not challenge on appeal the trial court’s grant of summary judgment to JMLS on Greenberg Farrow’s conversion claim, we affirm that aspect of the court’s ruling.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Ass’n of Savannah v. Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, John Marshall Law School (“John Marshall” or “the Law School”) in 1996 purchased two buildings, 1422 West Peachtree Street (“the 1422 Building”) and 1430 West Peachtree Street (“the 1430 Building”), along with a parking deck located behind the buildings. See Parking Deck, LLC v. Anvil Corp., 259 Ga. App. 1, 1 (576 SE2d 24) (2002). The Law School then entered into a purchase agreement to sell the 1430 Building and easement rights in the parking deck property to Anvil Corporation (“Anvil”). See id. The Reciprocal Easement Agreement (“the REA”) entered into by the Law School and Anvil on October 1, 1996, gave Anvil an easement permitting the use of 120 of the deck’s 254 parking spaces, “at no additional charge to Anvil” except for certain defined maintenance and security expenses. The REA also divided certain expenses and profits from the parking deck between the Law School and Anvil:

5.2 Expenses and Profits of Parking Deck. Expenses of personnel and security surveillance (the “Security Expenses”) and profits of operations relating to the parking lot shall be allocated between the parties, 67% to John Marshall and 33% to Anvil. All other expenses, specifically, routine maintenance and structural repairs (the “Maintenance Expenses”), if necessary, related to the parking lot shall be allocated between the parties on a 50%/50% basis. Anvil shall reimburse John Marshall for its portion of the Maintenance and Security Expenses within 30 days of receipt of a statement from John Marshall evidencing such expenses.

The REA provided that the Law School reserved “for itself and its respective successors and assigns, the right to use the . . . Parking Deck ... for the purposes for which such areas have been established and for any other purposes which are not inconsistent with the grant of the easements ...The REA also provided that the parking garage “shall at all times be operated in a manner consistent with the operation of other garage facilities in comparable office buildings in Atlanta, Georgia.”

Ownership of both the 1422 Building and the parking deck subsequently changed hands multiple times. Parking Deck, 259 Ga. App. at 1-2. In 2003, JMLS purchased the 1422 Building and the parking deck, including John Marshall’s rights under the REA. At the time, the Law School was leasing space in the 1422 Building from another entity, and in March 2003 it entered into a lease addendum with JMLS as the new landlord. In his OCGA § 9-ll-30(b)(6) (“Rule 30(b)(6)”) deposition on behalf of JMLS, Michael Markovitz testified that use of the parking deck was included in the Law School’s rent. The Law School sold parking passes to its students and faculty, while JMLS received revenue for parking by other, transient park-ers.

The ownership of the 1430 Building also changed over time. An entity named Pershing Point, LLC, purchased the 1430 Building and converted it into condominiums. Greenberg Farrow, an architectural firm, in March 2007 purchased three of the condo units, giving it an ownership interest in the building and the right to a portion of the 120 parking spaces that had been allocated to Anvil under the REA. JMLS also bought condos in the 1430 Building. A September 2011 amendment to the Law School’s lease added space now owned by JMLS in the 1430 Building, explicitly made access to 195 of the spaces located in the parking deck part of the premises covered by the rental agreement, and raised the rental rate.

A dispute between the parties arose when Greenberg Farrow questioned an invoice from the 1430 Building’s property manager directing Greenberg Farrow to pay real estate taxes related to the parking garage. JMLS in September 2013 informed Greenberg Farrow via e-mail that it was disabling the parking cards used by Greenberg Farrow for nonpayment of expenses. JMLS said that it would reactivate the cards once Greenberg Farrow paid $16,474.48, which JMLS said was Greenberg Farrow’s “pro-rata share of the past due amount.” JMLS’s e-mail said Greenberg Farrow still could use the parking deck on a cash basis. Greenberg Farrow brought this lawsuit against JMLS two days later.

The central issue in the case concerns the meaning of the phrase “profits of operations relating to the parking lot” as used in § 5.2 of the REA. Robert D’Agostino, who negotiated the REA as then-dean and CEO of John Marshall, and Bijan Kasraie, who negotiated the REA on behalf of Anvil, provided affidavits saying that, following the filing of the REA, neither Anvil nor the Law School ever accounted to the other for its own use of the parking deck. But Greenberg Farrow has taken the position that the REA provision giving it a share of the “profits of operation” of the parking deck included JMLS’s lease of parking spaces to the Law School. In his deposition as a Rule 30(b)(6) witness for Greenberg Farrow, company president and CEO Esmail Ghadrdan testified that his understanding was that the profits considered for purposes of the REA included the rental of all spaces except for the 120 spaces allocated for the 1430 Building.

In filing this lawsuit, Greenberg Farrow sought a temporary restraining order (“TRO”) giving it immediate access to the parking deck without additional charge, pending resolution by the court of the account disputes. The trial court granted the TRO largely as requested. Greenberg Farrow filed an amended complaint seeking a permanent injunction, declaratory judgment, and damages under theories of breach of contract, conversion, and interference with enjoyment of property, as well as punitive damages and attorneys’ fees. JMLS counterclaimed for breach of the REA and an alleged agreement under which Greenberg Farrow was to pay for use of JMLS’s trash pickup services and sought attorneys’ fees, too.

JMLS filed a motion for partial summary judgment seeking dismissal of Greenberg’s claims for declaratory judgment, breach of contract, and conversion. The trial court granted the motion. The trial court concluded that the phrase “profits of operations relating to the parking lot” in the REA was ambiguous, and then turned to extrinsic evidence to determine its meaning. The trial court found that the evidence was undisputed that “the drafters of the REA intended for the phrase to apply to the revenue derived from transient third party parkers, but did not intend for the owners of the two buildings to have to account to each other for their own use or to share any revenue derived from such use.” The trial court also found that by acquiescing in the procedure for accounting of profits put in place at the time the REA was created, Greenberg Farrow had waived any contrary interpretation.

Greenberg Farrow filed this appeal and challenges the trial court’s construction of the REA, as well as its conclusion that Green-berg Farrow waived its right to contest that interpretation. Green-berg Farrow also argues that JMLS owes it damages even under the trial court’s interpretation of the agreement and thus the trial court erred in granting partial summary judgment to JMLS.

1. Greenberg Farrow argues that the trial court erred in finding that the terms of the REA are ambiguous. We agree.

The interpretation of a contract is a question of law, unless the contract language presents an ambiguity that cannot be resolved by the rules of construction. Mun. Elec. Auth. v. Gold-Arrow Farms, Inc., 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005).

The cardinal rule of construction is to ascertain the intent of the parties. Where the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties. To determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred. When the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation!)] the language used must be afforded its literal meaning and plain ordinary words given their usual significance .... An ambiguity is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and also signifies of doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations. Where ambiguities exist, the court may look outside the written terms of the contract and consider all the surrounding circumstances to determine the parties’ intent. Parol evidence may not be considered unless the written instrument is ambiguous.

Id. at 866-67 (1) (citations and punctuation omitted).

The REA provided that “profits of operations relating to the parking lot” were to be divided, 67 percent to John Marshall and 33 percent to Anvil. JMLS has acquired John Marshall’s rights under the REA, and Greenberg Farrow has acquired a portion of Anvil’s parking rights under the REA. The parties do not dispute the definition of “profits”; Greenberg Farrow notes the term is generally defined as “total sales revenue less all operating expenses,” and JMLS says that definition is not in dispute. “Operations” is not an inherently ambiguous term and is generally defined as “performance of a practical work or of something involving the practical application of principles or processes” or “a doing or performing action; work; a deed.”Am. Nat’l Prop. & Cas. Co. v. Amerieast, Inc., 297 Ga. App. 443, 447 (1) (677 SE2d 663) (2009) (quoting dictionary definitions). It appears that the parties’ dispute, rather, is as to the scope of the operations from which profits are to be divided. Greenberg Farrow argues that the scope of those operations is all of the parking deck, minus the easement allowing the use of 120 spaces by Anvil and its successors without additional cost. JMLS argues that the term is ambiguous and that the court should rely on extrinsic evidence showing that the applicable scope is only the use of the parking deck by “transient” motorists, not including lease of spaces to the Law School.

We agree with Greenberg Farrow that the language of the REA is clear on this point. The agreement on allocation of profits applies to “operations relating to the parking lot.” The only language limiting the scope of operations on which profits must be shared is the provision granting Anvil the use of 120 spaces “at no additional charge” except for its defined percentage contribution to maintenance and security expenses. There is no other language limiting the scope of operations on which profits are to be allocated. The REA is thus clear that the term “profits of operations relating to the parking lot” encompasses the profits on all spaces in the deck, minus the use of the 120 spaces by Anvil and its successors. Given that the terms of the contract are plain in this regard, the trial court erred by considering the parol evidence submitted by JMLS. See Mun. Elec. Auth., 276 Ga. App. at 867-69 (1).

In support of its argument that the REA is ambiguous, JMLS points out that nothing in the agreement requires the owner of the 1422 Building “to charge itself” for its use of the deck. It is true that in the REA the owner ofthe 1422 Building reserved for itself the right to use the parking deck. But to the extent that JMLS is charging someone else — whether Law School students and staff, the Law School itself, or assorted members of the public — for use of the deck, the REA does not exclude that revenue from that on which “profits of operations” are calculated. That this may be a bad bargain for JMLS does not render the REA ambiguous.

JMLS offers nothing further in support of its argument that the REA is ambiguous, except for pointing to extrinsic evidence and “the parties’ differing interpretations of the contractual provision.” JMLS notes that Michael Kornheiser, an attorney admitted to practice in Georgia who provided a deposition as a corporate representative for Greenberg Farrow, testified that he was “happy” to say he had not drafted the REA and agreed that “it clearly did not spell out everything the way it should have.” But, as explained above, we do not consider such extrinsic evidence absent an ambiguity on the face of the document. And the fact that two parties disagree on a contract’s meaning does not by itself render the contract ambiguous; otherwise, courts charged with presiding over a contract dispute would never be limited to the language of the agreement itself in construing it but would always be free to turn to extrinsic evidence.

2. As an alternative basis for granting partial summary judgment to JMLS, the trial court held as a matter of law that Greenberg F arrow had waived its right to challenge JMLS’s interpretation of the “profits of operations relating to the parking lot” provision of the REA. Greenberg Farrow argues on appeal that this was error because the question of waiver presents a dispute of material fact. We agree that JMLS has not established as a matter of law that Greenberg Farrow waived its rights.

“It is well recognized that a party to a contract may waive contractual provisions for his benefit.” AAF-McQuay, Inc. v. Willis, 308 Ga. App. 203, 217 (4) (a) (707 SE2d 508) (2011) (punctuation omitted). A waiver may be shown through a party’s conduct. Vratsinas Constr. Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 453-54 (1) (739 SE2d 493) (2013).

But the law will not infer the waiver of an important contract right unless the waiver is clear and unmistakable. And because waiver is not favored under the law, the evidence relied upon to prove a waiver must be so clearly indicative of an intent to relinquish a then known particular right or benefit as to exclude any other reasonable explanation. Indeed, all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist. The burden of proof lies with the party asserting waiver[.]

Id. at 454 (1) (punctuation and footnotes omitted; emphasis in original). Waiver may be a question of law when the facts and circumstances essential to the question are clearly established. Id. at 454-56 (1) (evidence clearly established a lack of intent or understanding that contractor waived pay-if-paid provision). But the existence of a waiver generally is a jury question. Id. at 454 (1). “If there is conflicting evidence over whether a waiver occurred, the issue is for a jury to resolve.” AAF-McQuay, Inc., 308 Ga. App. at 217 (4) (a). In particular, “[a] party’s protracted silence, or unreasonable delay in making protest, can raise a fact issue as to whether she has waived a contractual right.” Id. at 217-18 (4) (a) (trial court erred by rejecting waiver argument as a matter of law).

Here, the trial court said that Greenberg Farrow’s acceptance of an arrangement under which neither Greenberg Farrow nor JMLS accounted to the other for their own use of the parking deck and neither shared any revenue derived from such use was evidence that clearly established Greenberg Farrow’s waiver of the position that it takes now. But the record contains conflicting evidence over whether a waiver occurred. Although the trial court premised its finding of waiver on the notion that Greenberg Farrow had accepted the arrangement as contemplated by JMLS from the time that it purchased an interest in the 1430 Building until initiating this lawsuit, there is evidence that Greenberg Farrow was not aware that JMLS was treating the REA in this fashion until several years after Greenberg Farrow purchased an interest in the building. Greenberg Farrow purchased its condo units in the 1430 Building in March 2007. Ghadrdan, Greenberg Farrow’s president and CEO, testified that when Greenberg Farrow first purchased the condo units, he understood that revenue from the rental of parking spaces to John Marshall law students was being shared under the REA. Ghadrdan testified that it was only when he was presented with an invoice for taxes on the parking deck that he realized that JMLS was not sharing revenue consistent with his understanding of the deal. Once he came to this realization, Ghadrdan said, Greenberg Farrow began to contest JMLS’s approach, setting off a series of events that culminated in this lawsuit.

On appeal, JMLS argues that Greenberg Farrow should have known that the revenue shared with Greenberg Farrow and the other owners of the 1430 Building was “minimal” and consistent with sharing of revenue from only “third-party transient parking,” and that Greenberg Farrow should have exercised more diligence and examined available records. But a mere lack of diligence is not the same thing as a waiver.

[W]here the only evidence of an intention to waive is what a party does or forbears to do, there is no waiver unless his acts or omissions to act are so manifestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of the conduct is possible.

Eckerd Corp. v. Alterman Props., Ltd., 264 Ga. App. 72, 75 (1) (589 SE2d 660) (2003) (questions of whether either party waived rights in dispute over lease terms are for a jury to decide). One cannot intentionally waive a right one does not know exists.

JMLS also supports its argument of waiver by pointing to evidence that Greenberg Farrow and other 1430 Building owners leased out spaces without providing any accounting to JMLS, suggesting this is evidence that Greenberg Farrow had accepted an arrangement in which neither party needed to account to the other for use of their “own” parking spaces. But Ghadrdan testified that he understood that revenue from the 51 spaces allocated to Greenberg Farrow did not need to be shared with JMLS under the terms of the REA, offering his explanation of why the REA imposed obligations on JMLS that it did not impose on Greenberg Farrow. Therefore, regardless of whether Greenberg Farrow’s actions were proper under the REA, its failure to account to JMLS for its own usage of the deck does not amount to evidence that it waived its right to challenge JMLS’s failure to share revenue from the sale of parking spaces to all but “transient” parkers. JMLS has not established as a matter of law that Greenberg Farrow waived that right. We therefore reverse the trial court’s grant of summary judgment to JMLS on Greenberg Farrow’s breach of contract claim.

3. JMLS argues that because Greenberg Farrow has not presented any argument on appeal challenging specifically the trial court’s determination that Greenberg Farrow’s claims for declaratory judgment and conversion should be dismissed, the ruling of the trial court should be affirmed as to those claims. The trial court’s ruling granting summary judgment on the declaratory judgment claim appears to be based on the conclusion that it is moot given the resolution of the breach of contract claim. Given our conclusion that summary judgment on the breach of contract claim was in error, we also reverse as to the declaratory judgment action.

Decided October 20, 2016

Reconsideration denied November 4, 2016.

Schreeder, Wheeler & Flint, Michael D. Flint, Shira A. Critten-don, for appellant.

Hun ter, Maclean, Exley & Dunn, Kirby G. Mason, Kate C. Lawson, for appellee.

As to the conversion claim, the trial court also granted summary judgment on the basis of its construction of the REA. However, the trial court offered as an alternative basis for summary judgment the reason that “[cjonversion is not a viable claim where there is nothing more than an alleged failure by the defendant to pay money owed to the plaintiff.” Greenberg Farrow does not challenge this proposition on appeal, and thus we affirm the trial court’s grant of summary judgment to JMLS on this claim.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       The Law School later tried to sell the 1430 Building to someone else, claiming it still owned the building because the closing was not finalized and the deed was not recorded, but a jury that heard Anvil’s suit against the Law School determined that Anvil was the rightful owner of the property. See Parking Deck, 259 Ga. App. at 1-2. The Law School and Anvil subsequently entered into an agreement regarding the building financing. Id. at 2. Athird party later sued Anvil seeking a declaratory judgment that Anvil had no easement rights in the deck, but we upheld a ruling granting summary judgment to Anvil. Id. at 3-4 (2)-(3).

       Markovitz testified that he is president of JMLS and a member of the board of directors of the Law School.

       Although these witnesses provided further testimony as to the parties’ intentions in drafting the REA, we do not rely on it given our ultimate finding that the pertinent provision is unambiguous.

       JMLS has emphasized in this appeal that it and the Law School are separate entities.

       Ghadrdan testified that he could not remember exactly when he came to this realization but indicated, consistent with a tax invoice shown to him during his deposition, that it happened in 2010 or later.

       Given this conclusion, we need not consider Greenberg Farrow’s argument that, even if the trial court’s interpretation of the REA is correct, Greenberg Farrow still is owed damages.


author: McFADDEN, Judge.

text:
    A16A1125.
    PAJARO et al. v. SOUTH GEORGIA BANK.
    (793 SE2d 209)
   McFADDEN, Judge.

Julio Pajaro was injured in the collapse of a staircase on commercial premises that he leased from South Georgia Bank (hereinafter, the landlord). He and his wife (collectively, the appellants) brought this action against the landlord, asserting claims for defective construction, failure to repair, failure to warn, and loss of consortium. As detailed below, we affirm the grant of summary judgment on the claims for failure to repair and failure to warn, because there are no genuine issues of material fact as to those claims. We reverse the grant of summary judgment as to the claims for defective construction and loss of consortium, however, because genuine issues of material fact exist as to those claims.

On appeal from the grant of summary judgment this [cjourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Campbell v. Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011) (citations omitted). So viewed, the evidence shows that the landlord acquired the premises at issue in December 2009. At that time, Pajaro leased the premises for his medical practice. The landlord did not have the premises inspected either before or after the acquisition, but a representative of the landlord did a walk-through of the premises with Pajaro, and Pajaro requested that the landlord paint a wooden, exterior staircase at the back of the premises that led to the second floor.

In January 2010, Pajaro and the landlord entered into a lease of the premises. As to repairs, the lease provided:

During the lease term, Tenant shall make, at Tenant’s expense, all necessary repairs to the Leased Premises. Repairs shall include such items as routine repairs of floors, wall, ceilings, and other parts of the Leased Premises damaged or worn through normal occupancy, except for major mechanical systems or the roof, subject to the obligations of the parties otherwise set forth in this Lease. Landlord at its own expense shall make all necessary repairs to major mechanical systems, including but not limited to HVAC Units, plumbing and septic system.

On May 3, 2012, as Pajaro stepped from the second floor space onto the back exterior staircase, the staircase collapsed, causing Pajaro to fall more than 15 feet to the ground and injuring him. Before that point, Pajaro had not perceived any structural or safety problem with the staircase.

The appellants’ expert witness, a licensed commercial and residential contractor, opined that construction defects had caused the staircase to collapse; he opined that the staircase had been built with nongalvanized nails that had rusted over time, and that portions of wooden posts had not been properly sealed and caulked, leading them to rot. It is undisputed that the landlord was not in possession of the property, was not involved in the construction of the staircase and, at the time of Pajaro’s fall, had never made any repairs or modifications to the staircase. The appellants’ expert witness opined, however, that “the unsafe conditions of the staircase could and would have been discovered if the staircase had been completely inspected by the [landlord] when it acquired title to the property[.]”

Because the landlord was not in possession of the property, it is “subject to tort liability only under the provisions of OCGA § 44-7-14.” Martin v. Johnson-Lemon, 271 Ga. 120, 122 (1) (516 SE2d 66) (1999). That Code section, which pertinently provides that an out-of-possession landlord “is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair,” OCGA § 44-7-14, expressly limits the potential liability of out-of-possession landlords to these two sets of circumstances. Martin v. Johnson-Lemon, 271 Ga. at 125 (3); Martin v. Hansen, 326 Ga. App. 91, 92 (1) (755 SE2d 892) (2014); Rainey v. 1600 Peachtree, LLC, 255 Ga. App. 299, 300 (565 SE2d 517) (2002). Perhaps due to the limitations of OCGA § 44-7-14, the appellants argue that another Code section, OCGA § 44-7-13, applies to this case. However, OCGA § 44-7-13, which requires a landlord to “keep the premises in repair,” does not impose tort liability on a landlord. Colquitt v. Rowland, 265 Ga. 905, 907 (2) (463 SE2d 491) (1995).

The trial court granted summary judgment on claims for defective construction, failure to repair, failure to warn, and loss of consortium.

1. Defective construction.

The general rule is that “the liability of a landlord for defective construction exists only in cases where the structure is built by [the landlord] in person or under [the landlord’s] supervision or direction.” Martin v. Johnson-Lemon, 271 Ga. at 124 (2) (b) (citations and punctuation omitted). Our courts have recognized a limited exception to this rule in circumstances where the defective structure was “constructed by a predecessor in title, and the landlord knew or by the exercise of reasonable diligence could have known of its improper construction before the tenancy was created[.]” Flagler Co. v. Savage, 258 Ga. 335, 337 (2) (368 SE2d 504) (1988) (citation and emphasis omitted). In such circumstance, the landlord “wouldbe answerable to the tenant . . . for injuries sustained by reason of [the landlord’s] failure to put the premises in a safe condition, if the person sustaining the injuries could not have avoided the same by the exercise of ordinary care.” Id. (citation and emphasis omitted). Our Supreme Court has explained that, although this limited exception “[a]t first glance . . . would appear to contradict the precise terms of OCGA § 44-7-14[,]” the exception could be supported because a purchaser of rental property has “unparalleled opportunities... to discover defects in structures erected by predecessors-in-title” through means such as structural inspections. Martin v. Johnson-Lemon, 271 Ga. at 126 (4), n. 16. See also Gainey v. Smacky’s Investments, 287 Ga. App. 529, 531 (2) (b) (652 SE2d 167) (2007); Rainey, 255 Ga.App. at 301. While there is “no absolute duty of inspection upon a landlord to discover defects in the premises prior to leasing them,” Lonard v. Cooper & Sugrue Properties, 214 Ga. App. 862, 864 (449 SE2d 348) (1994) (citations omitted), the landlord may be liable if the alleged defect “constitutes the type of structural defect that would be discovered during a pre-purchase building inspection[.]” Rainey, 255 Ga. App. at 302.

In his affidavit, the appellants’ expert witness opined that a pre-purchase structural inspection would have led the landlord to discover the defects that, in the expert witness’s opinion, caused the staircase to collapse. The trial court held that this opinion was conclusory and did not create a genuine issue of material fact as to whether the landlord had constructive knowledge of the defects, noting that the expert witness was not a home inspector and that his opinion “provided no insight into inspection practicesThe trial court apparently considered the expert witness’s opinion but found it irrelevant to the issue of the landlord’s knowledge, rather than rejecting the expert witness as unqualified or his testimony as failing to satisfy the requirements of OCGA § 24-7-702 for expert opinion testimony in civil actions. Compare Blake v. KES, Inc., 336 Ga. App. 43, 49 (783 SE2d 432) (2016).

We are not convinced that the expert’s opinion is irrelevant. The expert was a licensed commercial and residential contractor. Unlike in Gainey, 287 Ga. App. at 532 (2) (b), cited by both the trial court and the landlord, here the appellants’ expert opined that the defects that led to the collapse of the staircase would have been discovered during an inspection. Although the expert was not himself a home inspector, he was an expert in residential construction. It was for the jury to determine whether to credit his opinion that an inspection would have disclosed the construction defects. Likewise, although the landlord challenges the opinion because the expert based it on photographs taken after the collapse, it was for the jury to assess the foundation of that opinion. “[A]ny deficiencies in the expert’s opinion go to the weight and credibility of his testimony.” Toyo Tire North American Mfg. v. Davis, 333 Ga. App. 211, 217 (2) (775 SE2d 796) (2015). If a jury were to find the opinion credible, the jury could find that the landlord, in the exercise of ordinary care, could have discovered the construction defects that caused the staircase to collapse. Accordingly, summary judgment is not appropriate as to the defective construction claim.

2. Failure to repair.

An out-of-possession landlord’s “[ljiability for failure to repair arises only in instances where there is a duty to repair and notice has been given of the defect.” Gainey, 287 Ga. App. at 530 (2) (a) (citation and punctuation omitted). The parties dispute whether their lease assigned to Pajaro the duty to repair the staircase. See Rainey, 255 Ga. App. at 300 (“nothing prohibits a landlord of commercial premises from assigning by contract its duty to repair”) (citations omitted); Groutas v. McCoy, 219 Ga. App. 252, 254 (1) (464 SE2d 657) (1995) (“[T]he owner of property not used as a ‘dwelling place’ — as was the case here — can contract to avoid the dut[y] to repair ... the property set forth in . . . OCGA § 44-7-14.”) (citation omitted); Tribble v. Somers, 115 Ga. App. 847, 849 (156 SE2d 130) (1967) (landlord’s liability under OCGA § 44-7-14 for failure to keep premises under repair “may be limited as between the parties by a lease containing contrary stipulations”) (citations omitted) (construing predecessor to OCGA § 44-7-14).

Decided November 4, 2016.

Farah & Farah, Alan D. Tucker, James R. Francis, for appellants.

Ellis, Painter, Ratterree & Adams, Sarah B. Akins, Megan U. Manly; Dubberly & McGovern, Joseph D. McGovern, for appellee.

We need not decide whether the landlord assigned its duty to repair the staircase, however, because even if the landlord retained that duty, the appellants “offered no evidence that anyone notified [the landlord] of a problem with the staircase or requested a repair, and [the landlord] specifically testified that [it was not aware of any defect in or hazard posed by the staircase].” Gainey, 287 Ga. App. at 530-531 (2) (a). Pajaro testified that the only time he mentioned the staircase to his landlord was during his initial walk-through with the landlord, when he asked for the staircase to be painted. “Under these circumstances, [the appellants] failed to raise a question of fact as to liability for failure to repair.” Id. at 531 (2) (a).

3. Failure to warn.

The trial court properly concluded that failure to warn is not a ground upon which an out-of-possession landlord can be held liable under OCGA § 44-7-14. Gainey, 287 Ga. App. at 532 (2) (c). Accordingly, the trial court properly granted summary judgment on this claim. Id.

4. Loss of consortium.

The right of Pajaro’s wife to recover for loss of consortium is dependent upon Pajaro’s right to recover against the landlord. Grou-tas, 219 Ga. App. at 254 (2). Because genuine issues of material fact preclude summary judgment on Pajaro’s claim for defective construction, he is not entitled to summary judgment on his wife’s claim for loss of consortium.

Judgment affirmed in part and reversed in part.

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


text:
    A16A1434.
    SAWNEE FOREST, LLC v. CRE VENTURE 2011-1, LLC.
    (793 SE2d 542)
   PHIPPS, Presiding Judge.

CRE Venture 2011-1, LLC (“CRE”) sued Sawnee Forest, LLC to collect sums allegedly owed it under a promissory note. Sawnee Forest appeals from an order granting partial summary judgment on the issue of liability in favor of CRE. The trial court found that CRE was the assignee of certain assets from the Federal Deposit Insurance Corporation (“FDIC”) as receiver for Crescent Bank and Trust Company and was therefore the real party in interest with the right to sue for the amount due. Finding no error, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

So viewed, the evidence shows that in June 2006, Sawnee Forest executed a promissory note, payable to Crescent Bank and Trust Company. In November 2008, Sawnee Forest modified and renewed the loan in a note that identified the lender as “Crescent Bank - Midway” Subsequent loan modifications, however, identified the lender as Crescent Bank and Trust Company

According to a 2011 assignment of the deed to secure debt, securing the 2006 note as amended to reflect the various loan modifications, Crescent Bank and Trust Company had been closed by its supervising institution in 2010, and the FDIC had been appointed as receiver for its assets. The record also contains an allonge, which endorsed to CRE from the FDIC, as receiver for Crescent Bank and Trust Company, the November 2008 note “[p]ayable to” Crescent Bank and Trust Company.

In April 2012, Sawnee Forest executed a loan modification with CRE, extending the maturity date of the loan. According to this loan modification, CRE had purchased from the FDIC as receiver for Crescent Bank and Trust Company the loan and original loan documents (defined as the June 23, 2006 note, the November 20, 2008 replacement note, two subsequent loan modifications, the recorded deed to secure debt, and the guaranty). Alleging default, CRE sent a demand letter to Sawnee Forest in August 2013 and filed suit the following month.

CRE filed a motion for summary judgment in May 2015, which was set for hearing on November 5, 2015. CRE attached to its motion an affidavit from Graciela Burrola, a “consultant” working as an “asset manager” for the loan servicer for CRE. Burrola attached to her affidavit the above-referenced allonge and assignments from the FDIC, a printout of a loan history spreadsheet, and a loan payoff quote.

In its response to the motion for summary judgment, Sawnee Forest argued that there was no evidence showing that the note with Crescent Bank - Midway had been assigned to CRE either directly or by the FDIC as a party authorized to act on behalf of Crescent Bank - Midway. Two months later, CRE filed an amended affidavit for Burrola, which contained as additional exhibits the June 2006 note, the November 2008 renewal, the April 2009 and February 2010 loan modifications, and the April 2012 loan modification with CRE.

1. On appeal, Sawnee Forest argues that the trial court erred in considering Burrola’s amended affidavit. In support, it relies on our decision in Harrell v. Fed. Nat. Payables, in which we stated:

OCGA § 9-11-56 (c) requires that a motion for summary judgment be filed at least 30 days before the time fixed for a hearing. And pursuant to OCGA § 9-11-6 (d), any affidavits in support of a motion must be served at the time the motion is served, unless the court exercises its discretion under OCGA § 9-11-6 (b) to permit later service.

The facts in this case are distinguishable from Harrell, in which we held that the trial court should not have considered a supplemental affidavit filed after the summary judgment hearing without any showing of excusable neglect. In contrast, Burrola’s amended affidavit was filed more than two months before the summary judgment hearing. And in its motion to allow the amended affidavit, CRE explained that the initial affidavit “mistakenly stated the interest rate for the loan as being a variable rate.” The amended affidavit attached the loan modification agreements, which had changed the interest rate to a fixed rate of five-and-a-half percent.

CRE filed the amended affidavit at least 30 days before the summary judgment hearing, the time frame provided by OCGA § 9-11-56 (c). Moreover, the purpose of the requirement in OCGA § 9-11-6 (d) that the affidavit be filed contemporaneously with the motion “is to ensure that the other side has adequate notice of and opportunity to respond to such evidence.” The requirement is not absolute, as the time for filing affidavits may be extended.

We find no abuse of discretion in the trial court’s order, which implicitly allowed the amended affidavit filed more than two months before the summary judgment hearing.

2. Sawnee Forest argues that, even with the amended affidavit, CRE did not establish a complete chain of assignment and thus did not establish privity of contract.

Although a plaintiff moving for summary judgment has the burden to show that no material issues of fact exist, the burden shifts to the defendant when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. The defendant must then “present competent evidence establishing a possible defense.” A plaintiff suing on a promissory note “may establish a prima facie right to judgment as a matter of law by producing the promissory note and showing that it was executed.”

Decided November 7, 2016.

Schreeder, Wheeler & Flint, John A. Christy, Andrew J. Lavoie, for appellant.

Morris, Manning & Martin, David W. Cranshaw, for appellee.

Sawnee Forest admitted that it executed the 2012 loan modification with CRE. That loan modification, which was attached to both the complaint and the amended affidavit, identified CRE as the “Lender” and recited that CRE had purchased the original loan documents (including the 2006 note, the 2008 replacement note, and two loan modifications) from the FDIC as receiver for Crescent Bank and Trust Company. Sawnee Forest further “represented] and warranted] . . . [that it] ha[d] no claims, offsets, counterclaims or defenses with respect to . . . payment of the Loan.” In addition, Burrola testified that “[a]s Receiver for Crescent Bank, FDIC took possession of the original loan files . . . maintained by Crescent Bank with respect to the Loan.”

Regardless of whether CRE established a complete chain of assignment, Sawnee Forest does not dispute that it executed a contract directly with CRE. This contract acknowledged a debt owed to CRE and incorporated the prior loan documents. CRE thus established privity of contract. Because Sawnee Forest did not present any evidence of a valid defense, CRE was entitled to judgment as a matter of law.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       CRE Venture also sued C. Parke Day as guarantor of the loan. Although Day originally was named as an appellant, we dismissed him as a party to this appeal after he advised the court that he had filed a petition for bankruptcy relief. As our dismissal order makes clear, Day may refile his appeal within 30 days following the date that the bankruptcy court terminates the automatic stay, grants appropriate relief from the automatic stay, or otherwise determines that the provisions of the automatic stay do not apply to the issues involved in this appeal.

        Heritage Constr. Corp. v. State Bank and Trust Co., 316 Ga. App. 25 (728 SE2d 703) (2012) (footnote omitted).

       “An allonge is a piece of paper attached to a promissory note on which parties write endorsements for which there is no room on the instrument itself.” Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 251 (4) n. 14 (758 SE2d 145) (2014) (citation and punctuation omitted).

       264 Ga. App. 501 (591 SE2d 374) (2003).

       Id. at 505 (4) (punctuation omitted).

       Under OCGA § 9-11-6 (b), the court may extend the period “upon motion made after the expiration of the specified period... where the failure to act was the result of excusable neglect.” Harrell, supra (quoting OCGA § 9-11-6 (b) (2)).

       See Harrell, supra.

        Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 313-314 (2) (a) (724 SE2d 33) (2012) (punctuation andfootnote omitted). See also Triple T-Bar v. DDR Southeast Springfield, 330 Ga. App. 847, 849 (1) (769 SE2d 586) (2015).

       See OCGA § 9-11-6 (b); Shropshire, supra.

       See Clawson v. Intercat, Inc., 294 Ga. App. 624, 628 (2) (669 SE2d 671) (2008) (finding no abuse of discretion where affidavits at issue were on file two-and-a-half months before the hearing); Suttle v. Northside Realty Assoc., 171 Ga. App. 928, 931 (2) (321 SE2d 424) (1984) (noting the trial court’s “wide discretionary authority” to permit late-filed affidavits in support of motions for summary judgment).

        Keane v. Annice Heygood Trevitt Support Trust, 285 Ga. App. 155, 156-157 (645 SE2d 641) (2007).

       Id. at 157 (footnote omitted; emphasis in original).

        Vandegriff v. Hamilton, 238 Ga. App. 603, 604 (519 SE2d 702) (1999) (citations omitted).

        Wirth v. Cach, LLC, 300 Ga.App. 488, 489 (685 SE2d 433) (2009) (“The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee. Further, the writing must identify the assignor and assignee.”) (citations and punctuation omitted). See also Vlahos v. DeLong, 132 Ga.App. 722 (209 SE2d 12) (1974) (finding privity existed between landlord and subtenant where landlord consented to the sublease).

       See S & W Masonry Contractor v. Jamison Co., 199 Ga. App. 628, 629 (405 SE2d 519) (1991).


author: Ellington, Presiding Judge.

text:
    A16A0768.
    THE CLINE DRIVE LAND TRUST v. WELLS FARGO BANK, N.A.
    (793 SE2d 550)
   Ellington, Presiding Judge.

Wells Fargo Bank, N.A. sued The Cline Drive Land Trust seeking, on the grounds of mutual mistake, to reform the legal description of a security deed to include certain Bartow County real property owned by the Trust. The Trust moved for judgment on the pleadings, contending that Wells Fargo’s action was barred by the statute of limitation. The trial court rejected the Trust’s statute of limitation defense, finding that the statute of limitation did not begin to run against Wells Fargo until it had acquired an interest in the document in 2011. After the trial court denied the Trust’s motion, this Court granted its application for leave to appeal the interlocutory order. For the reasons set forth below, we find that the trial court erred in concluding that Wells Fargo’s claim could have accrued no earlier than the date of the assignment of the security deed to Wells Fargo by the original grantee. However, we affirm the trial court’s judgment under the right-for-any-reason rule because the pleadings do not show that the Trust is entitled to prevail as a matter of law.

“The issue in a motion for judgment on the pleadings is whether the undisputed facts appearing from the pleadings show the movant is entitled to judgment as a matter of law.” (Citation and punctuation omitted.) Bishop v. Westminster Schools, 196 Ga. App. 891, 892 (1) (397 SE2d 143) (1990). “For the purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Citation and punctuation omitted.) Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 86-87 (1) (764 SE2d 398) (2014). On appeal, this Court reviews the trial court’s decision de novo. Consolidated Pipe & Supply Co. v. Genoa Constr. Svcs., 279 Ga. App. 894, 895 (633 SE2d 59) (2006).

The pleadings show that on May 11,2005, Robert Garnto obtained a $359,650 loan from Lending Street Mortgage (“LSM”). As part of that transaction, Garnto delivered a security deed to Mortgage Electronic Registration Systems, as nominee for LSM, in order to secure repayment of the loan. The security deed identifies a 3.56 acre tract in Bartow County as the property granted and conveyed thereunder. On the day the security deed was executed, Robert Garnto and Drusilla Garnto owned 18.56 acres of land (the “Property”) in Bartow County (which included the 3.56 acre tract) on which was located a single family residence. LSM assigned the security deed to Wells Fargo on June 10, 2011. The Trust acquired the Property from Drusilla Garnto in 2012.

In its complaint against the Trust, Wells Fargo alleged that the parties to the loan intended for the Garntos’ residence to serve as security for the loan but that the residence does not lie on the 3.56 acre tract identified by the security deed. Wells Fargo sought to reform the security deed by removing the description of the 3.56 acre tract and substituting the legal description of the entire Property

The Trust moved for judgment on the pleadings on the ground that the seven-year statutory limitation period had run. The Trust maintained that the cause of action accrued in 2005, almost ten years before Wells Fargo filed suit. The trial court denied the Trust’s motion, rejecting the Trust’s argument that, because Wells Fargo stood in LSM’s shoes as assignee, its claim was barred by the statute of limitation. Rather, the trial court concluded, in view of Barron v. Wells Fargo Bank, N.A., 332 Ga. App. 180 (769 SE2d 830) (2015), that the statute of limitation began to run against Wells Fargo only upon the assignment of the security deed to Wells Fargo by LSM.

On appeal, the Trust contends that the trial court erred in relying on Barron for the proposition that the statute of limitation accrued when LSM assigned the security deed to Wells Fargo. We agree. “An action to reform a written document may be brought within seven years from the time the cause of action accrues.” (Citation omitted.) Haffner v. Davis, 290 Ga. 753, 756 (3) (725 SE2d 286) (2012). And

[a]s a general rule, the statute of limitation does not commence to run against an equitable action for reformation of a written instrument based on mutual mistake or fraud until the mistake or fraud has been, or by the exercise of reasonable diligence should have been, discovered.

(Citation and punctuation omitted.) Id. However, “[a]n action to reform a deed may not be barred by the seven-year statute of limitation ... if the non-complaining party will not be prejudiced.” (Footnote omitted.) Cohen v. Wachovia Mtg. Corp., 332 Ga. App. 109, 111 (770 SE2d 17) (2015). See OCGA § 23-2-32 (b) (“Relief may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.”); Ehlers v. Upper West Side, 292 Ga. 151, 153-154 (1) (733 SE2d 723) (2012).

We applied the foregoing principles in Barron . In that case, the appellee bank, also Wells Fargo, sued Barron to reform the legal description of property securing a debt owed by Barron to the bank on the ground that the security deed mistakenly identified only a portion of Barron’s tract of property. 332 Ga. App. at 180. The trial court granted summary judgment to the bank based on judicial estoppel, finding that Barron had contended in his personal bankruptcy proceeding that he owned one parcel of real property and not two, as he now maintained. Id. We devoted the greater portion of our analysis in concluding that the trial court correctly decided the issue of judicial estoppel. Id. at 183-185 (1). We also, however, considered Barron’s contention that the bank’s complaint was untimely Id. at 186-187 (2) (c). We noted that “Wells Fargo was first assigned an interest in the property on April 3, 2007, and it filed suit on August 20, 2012; thus, Wells Fargo filed suit approximately five years and four months after it reasonably could have been expected to discover an error regarding the May 2004 security deed.” Id. at 186 (2) (c). We also found, “moreover,” that “Barron cannot be prejudiced by the contract reformation because he is judicially estopped from asserting an unencumbered interest in the property. Thus Wells Fargo’s complaint was timely.” Id. at 186-187 (2) (c).

We did not hold in Barron that the statute of limitation necessarily begins to accrue as to an assignee’s action for reformation of contract at the time of assignment. Unlike in this case, whether the bank’s predecessor should have discovered the error in the security deed upon exercise of reasonable diligence was not expressly at issue. Nor do the facts of Barron imply that we necessarily considered the question. “A decision’s holding is limited to the factual context of the case being decided and the issues that context necessarily raises. Language that sounds like a holding—but actually exceeds the scope of the case’s factual context — is not a holding no matter how much it sounds like one.” (Citation and punctuation omitted.) Ga. Interlocal Risk Mgmt. Agency v. City of Sandy Springs, 337 Ga. App. 340, n. 1 (788 SE2d 74) (2016).

Notwithstanding Wells Fargo’s reliance on Barron, “an assignee takes the assignment subject to defenses against the assignor,” including the defense of the bar of the statute of limitation. Pridgen v. Auto-Owners Ins. Co., 204 Ga. App. 322, 323 (419 SE2d 99) (1992). See Houghton v. Sacor Financial, 337 Ga. App. 254, 258-259 (1) (b) (i) (786 SE2d 903) (2016) (assignee of a contract could not start a new limitation period for filing breach of contract action by demanding that the other party pay the assignee an amount due under the contract). Thus, Wells Fargo took the security deed subject to the defense of the bar of the statute of limitation and stood in the shoes of LSM insofar as when the claim for reformation of the security deed began to accrue. It follows that the trial court erred in concluding that the statute of limitation accrued no earlier than the assignment of the security deed to Wells Fargo. Further, the pleadings show that the alleged mistake in the legal description was apparent on its face and could have been ascertained by LSM with reasonable diligence by reading the security deed. See, e.g., Cohen v. Wachovia Mtg. Corp., 332 Ga. App. at 111 (statute of limitation not tolled where the lender alleged a mutual mistake in the mistaken omission of the co-owner of secured property as a grantor under the security deed, but the lender knew or should have known of the co-owner’s interest in the property at the time of the loan); Layfield v. Sanford, 247 Ga. 92, 93 (274 SE2d 450) (1981) (reformation of instrument denied where complaining party had “not bothered to read the deed or have it read to him or have the property surveyed”).

Although the trial court erred in its analysis, the pleadings do not establish that Wells Fargo would be unable to prevail on its claim for reformation of the security deed. In the case of a mutual mistake, reformation of an agreement to reflect the parties’ actual intent is not necessarily prejudicial to the non-complaining party See, e.g., Hill v. Agnew, 199 Ga. 644, 646 (34 SE2d 702) (1945) (“If [defendant] gets what he bought, then he can not be hurt by reforming the instrument, so as to keep him from getting what he did not buy”) (citation and punctuation omitted); McCollum v. Loveless, 187 Ga. 262, 267 (3) (200 SE 115) (1938) (“[T]he defendant will not be prejudiced by the reformation of the deed so as to make it speak the truth.”). And, as we noted above, the limitation period may not bar a reformation claim if the non-complaining party will not be prejudiced. Cohen v. Wachovia Mtg. Corp., 332 Ga. App. at 111. The TVust argues that it would necessarily be prejudiced by the reformation of the security deed in that the Trust was a bona fide purchaser for value who took without notice that Wells Fargo claimed an interest in all of the Property See Haffner v. Davis, 290 Ga. 753, 757 (3) (725 SE2d 286) (2012) (subsequent purchasers would be prejudiced by the reformation of the warranty deed as they were “bona fide purchasers who had no notice of the mistake until two years after” they bought the property). Here, although it can be inferred from the deed to the Trust that it paid value for the Property, the Trust does not point to anything in the pleadings that establishes it had no notice of the alleged mutual mistake in the security deed or that, as a matter of law, Wells Fargo could not prevail by showing a lack of prejudice to the Trust if the security deed was reformed. See, e.g., Whiten v. Murray, 267 Ga. App. 417, 421 (2) (599 SE2d 346) (2004) (“Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led.”). The Trust has not established, at this stage of the litigation, that it is entitled to judgment. See Gamble v. Pilcher, 242 Ga. 556, 558 (250 SE2d 416) (1978) (trial court erred in granting judgment on the pleadings where appellee had not shown that it took the security deed without knowledge of the materialman’s claim against the property). Accordingly, we affirm the trial court’s denial of the Trust’s motion for judgment on the pleadings under the principle of right for any reason. See Ford v. Atkinson Dredging Co., 222 Ga. App. 593, 594, n. 1 (474 SE2d 652) (1996) (“[A] judgment right for any reason will be affirmed.”).

Decided November 8, 2016.

Jenkins & Bowen, Brandon L. Bowen, Sarah G. Hegener, for appellant.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper; McCalla Raymer, Steven J. Flynn, J. Thomas Howell, Jr., Kimberly A. Wright, Jennifer K. McCall, for appellee.

Judgment affirmed.

Branch and Mercier, JJ., concur.

       On the date of the loan transaction, Drusilla Garnto conveyed her interest in the 3.56 acre tract portion of the Property to Robert Garnto, who conveyed the 3.56 acre tract to LSM under the security deed. Robert Garnto then conveyed the 3.56 acre tract to Robert Garnto and Drusilla Garnto, as joint tenants with right of survivorship.

       Robert Garnto was originally named as a co-defendant but later disclaimed all interest in the Property. By consent order, the trial court found the Trust to be the appropriate defendant.

       The evidence in Barron showed that, following the assignment to the bank, an employee of a title agency filed an affidavit of a scrivener’s error that “ ‘someone’ at the title agency” had caused the security deed at issue to be filed with an incorrect legal description. 332 Ga. App. at 182.

       An assignee “stands in the shoes” of its assignor, and thus “obtains no greater rights than the assignor possessed at the time of assignment.” (Citations and punctuation omitted.) Southern Telecom v. TW Telecom of Ga., 321 Ga.App. 110, 114 (3) (741 SE2d 234) (2013). In other words, “the assignee has no more rights under the contract than the assignor would have in dealings with the other contracting party.” Algernon Blair, Inc. v. Nat. Surety Corp., 222 Ga. 672, 673 (151 SE2d 724) (1966).

       See Harper v. Patterson, 270 Ga. App. 437, 439 (2) (606 SE2d 887) (2004) (A motion for judgment on the pleadings, absent the introduction of affidavits, depositions or interrogatories in support of the motion, is equivalent to a motion to dismiss for failure to state a claim, which “should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of [its] claim.”) (citation omitted); Auerbach v. Maslia, 142 Ga. App. 184, 185 (2) (235 SE2d 594) (1977) (“Judgment on the pleadings may be granted only where it appears from the pleadings themselves that the person against whom judgment is sought can in no event prevail.”) (citation omitted).