author: Andrews, Judge.

text:
    A17A1081.
    POSTELL v. TRINITEC PORTFOLIO SERVICES, LLC.
    (799 SE2d 597)
   Andrews, Judge.

The appellee, Trinitec Portfolio Services, LLC (“Trinitec”), commenced this action seeking, inter alia, a first priority lien on property it had redeemed following a tax sale and the right to pursue a judicial foreclosure to satisfy its lien. The appellant, Crandall Postell, who acquired an interest in the subject property from the owners, was allowed to intervene. Following the trial court’s grant of summary judgment for Trinitec, Postell appeals.

On January 6,2015, Bay Point Capital Partners, L.P (“Bay Point”), purchased a tax deed to a Houston County residence owned by Alvin and Laura Daniels. The tax lien on the property was only $7,433.55, but Bay Point paid $145,000 for the tax deed. In February 2015, Trinitec acquired a $1,525.81 lien against the property held by the homeowners’ association, and on March 15, 2015, Trinitec redeemed the property by paying Bay Point $174,000, the redemption amount required by OCGA § 48-4-42. Bay Point in turn executed a quitclaim deed of redemption to the Daniels, indicating Trinitec as lienholder and creditor. On March 27, 2015, before commencing this action, Trinitec asserted a claim with the Houston County tax commissioner for the $137,566.45 in excess tax sale funds, and on April 9, 2015, the tax commissioner paid Trinitec as requested.

1. Postell contends the trial court erred in granting summary judgment for Trinitec because Trinitec failed to prove it possessed an interest in the property that authorized it to redeem it. We agree.

In Georgia, only certain persons are authorized to redeem property from a tax sale. OCGA § 48-4-40 authorizes redemption by the defendant in fi. fa. or any person having any right, title, or interest in or lien upon such property. OCGA § 48-4-41 authorizes redemption by a creditor of the defendant in fi. fa. who has no lien.

(Punctuation omitted.) DRST Holdings, Ltd. v. Brown, 290 Ga. 317, 318 (2) (720 SE2d 626) (2012). In order to show it possessed a property interest that authorized its redemption of the property, Trinitec relied upon a homeowners’ association’s assignment of a lien for unpaid association dues that it acquired in February 2015.

However, that assignment identifies the property owners as Alvin and Laura Davis, not Alvin and Laura Daniels. The assignment references the lien book and page number where the lien was previously recorded in 2011, and that earlier recorded lien does identify the Daniels as the owners of the property. Presumably, the February 2015 assignment actually pertains to the Daniels’ property instead of a Davis property But we are unable to hold that Trinitec was entitled to summary judgment based on that assignment alone, as all ambiguities and doubts must be resolved against the movant and in favor ofthe party opposing the motion. Kirk v. Ashley, 199 Ga.App. 805, 807 (3) (406 SE2d 82) (1991).

Postell also contends Trinitec’s proof of its payment to Bay Point to redeem the property was not conclusive and did not support summary judgment that Trinitec had lawfully redeemed the property. To show that it actually paid $174,000 to redeem the property so as to give rise to its first priority lien against the property, Trinitec submitted a Chase Bank Wire Transfer Outgoing Request form dated March 5, 2015. Nothing on the form indicates the transfer actually was accomplished, however, and when Trinitec had the opportunity to add certainty to the issue of payment by answering Postell’s interrogatory about the amount and form of payment Trinitec paid Bay Point, Trinitec objected to the interrogatory on the ground it was vague and ambiguous. Nevertheless, the record also contains the quitclaim deed of redemption executed by Bay Point, which does clearly indicate Trinitec paid the redemption price as fixed by Georgia law. For that reason, Postell’s contention regarding the lack of proof of payment of the redemption price is without merit.

2. In granting summary judgment for Trinitec, the trial court found Trinitec’s property interest existed at the time of the tax sale and that Trinitec had properly redeemed the property In holding Trinitec was entitled “to their first priority lien status and the remaining amount owed on its first priority lien as well as the right to foreclose on the subject property to satisfy such lien,” the trial court in part relied upon United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (691 SE2d 272) (2010), in which this Court held that a redeeming creditor could both redeem the property and receive excess tax sale funds to apply toward the priority lien created by the redemption.

However, in DLT List v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318, 320 (1) (779 SE2d 436) (2015), we disapproved of that ruling in United Capital Financial and clarified that a redeeming creditor could only make a claim against the excess tax sale funds for the amount of the pre-tax sale lien that gave it the right to redeem. “It is the redemption price, however, that would not be recoverable from the excess and would be the first priority lien . . . against the property going forward.” Id. at 323-324 (1). In the instant case, as Trinitec has already obtained the excess tax sale funds based on its asserted lien resulting from the redemption of the property, it was allowed to do what was specifically prohibited in DLT List.

Decided April 20, 2017.

Crandall O. Postell, pro se.

Clark Law Group, John C. Clark, for appellee.

In the event Trinitec is subsequently able to resolve the issue regarding the February 2015 assignment in its favor, the trial court must also re-evaluate its ruling in light of our holding in DLT List.

3. Postell’s other enumerations of error, which are not supported by citation of authority, are deemed abandoned. Court of Appeals Rule 25 (c) (2).

Judgment reversed.

Ellington, P. J., and Rickman, J., concur.


source: Caselaw Access Project

author: Reese, Judge.

license: Public Domain

text:
    A17A0325.
    CRACKER BARREL OLD COUNTRY STORE, INC. v. ROBINSON.
    (800 SE2d 372)
   Reese, Judge.

In this personal injury action, defendant Cracker Barrel Old Country Store, Inc. (“Cracker Barrel”), appeals from the trial court’s order denying its motion to dismiss plaintiff Gail Robinson’s renewed complaint. Cracker Barrel argues, inter alia, that the court erred in rejecting its argument that Robinson’s two prior voluntary dismissals of this action resulted in an adjudication on the merits under OCGA § 9-11-41 (a) (3), thereby barring her from refiling the complaint a third time as a renewal action. It also contends that the court erred in denying its request for attorney fees and expenses of litigation. For the reasons set forth infra, we reverse the denial of Cracker Barrel’s motion to dismiss and remand this case for consideration of Cracker Barrel’s request for attorney fees and expenses.

The record shows the following undisputed facts. On February 4, 2014, Robinson filed a complaint against Cracker Barrel in the State Court of Douglas County, alleging that, on March 17, 2013, after dining at Cracker Barrel, she suffered from food poisoning. On April 22, 2014, Robinson filed a voluntary dismissal of her complaint.

On April 25, 2014, Robinson refiled her complaint in the State Court of Gwinnett County with the same allegations. On September 14, 2015, after the two-year statute of limitation had expired on March 17, 2015, Robinson voluntarily dismissed that complaint without prejudice.

Then, on January 25, 2016, Robinson filed a renewal action against Cracker Barrel in Douglas County, pursuant to OCGA § 9-2-61 (a). Cracker Barrel filed a motion to dismiss, contending, among other things, that Robinson was barred from filing her third complaint as a renewal action as a matter of law. It argued that, in order to renew an action under OCGA § 9-2-61 (a), the action must have been dismissed without an adjudication on its merits and that Robinson’s voluntary dismissal of her second complaint operated as an adjudication on the merits under the plain language of OCGA § 9-11-41 (a) (3).

OCGA § 9-11-41 (a) (1) (A) provides that “an action may be dismissed by the plaintiff, without order or permission of court. . . [b]y filing a written notice of dismissal at any time before the first witness is sworn[.]” OCGA § 9-11-41 (a) (3) provides, however, that “the filing of a second notice of [voluntary] dismissal operates as an adjudication upon the merits.” It follows that, under OCGA § 9-11-41 (a) (3), a plaintiff who has voluntarily dismissed a complaint two times is barred by the res judicata effect of that provision from filing it a third time.

Following a hearing on Cracker Barrel’s motion to dismiss, the trial court issued an order, which stated, in relevant part, as follows:

[A] review of the record shows that the first complaint [Robinson] filed in Douglas County was not served on [Cracker Barrel until] April 29th, 2014. This was 8 (eight) days after the underlying lawsuit was dismissed. Thus, service was not perfected prior to the filing of [Robinson’s] voluntary dismissal of the 2014 lawsuit. Therefore, the [first complaint] was null and void, and will not count as a previous filing for purposes of [OCGA § 9-11-41 (a) (3)].

(Footnote omitted.) The court ruled that, as a result: (1) the voluntary dismissal of Robinson’s second complaint thus qualified as her first voluntary dismissal under OCGA § 9-11-41; (2) the statute of limitation ran before the second complaint was dismissed; and (3) consequently, her third complaint was permitted under the renewal statute. Based upon this conclusion, the court denied Cracker Barrel’s motion to dismiss and its request for attorney fees and expenses. This appeal followed.

“A motion to dismiss for failure to state a claim should be sustained if the allegations of the complaint reveal, with certainty, that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the complaint.” On appeal from the denial of a motion to dismiss, “this Court will uphold the trial court’s findings if there is any evidence to support them.” With these guiding principles in mind, we turn now to Cracker Barrel’s specific claims of error.

Cracker Barrel argues that the trial court erred in finding that the first complaint filed by Robinson did not count as a voluntary dismissal for the purposes of OCGA § 9-11-41 (a) (3). As shown above, the trial court found as a matter of fact that Robinson did not serve Cracker Barrel with the complaint until April 29, 2014, eight days after she had voluntarily dismissed it, so it concluded that the complaint was “null and void” as a matter of law.

1. As an initial matter, this Court has culled the entire appellate record and has found no evidence to support the trial court’s finding of fact that Cracker Barrel was not served with the first complaint until April 29, 2014, after Robinson voluntarily dismissed the complaint. The trial court did not cite to a source for the fact in its order, saying only that it was a “sua sponte finding” of the court, and the court specifically admitted that Robinson did not raise this issue in her brief or during the motion hearing.

In fact, not only did Robinson fail to challenge the validity of the first complaint or present any evidence to show that it had not been served on Cracker Barrel before it was voluntarily dismissed, but statements made by her counsel during the hearing on the motion to dismiss appear to concede that the first complaint was properly filed and otherwise valid. For example, counsel told the court that this case had been “validly filed inside the statute [of limitation] for the second time, and then it had been dismissed and re-filed outside the statute [of limitation](Emphasis supplied.) He also admitted that “[o]ur situation simply concerns two voluntary dismissals without prejudice filedprocedurally properly, and a third action instituted in January [2016,] well within the six-month renewal period.” (Emphasis supplied.)

Consequently, we conclude that there is no evidence of record to support the court’s finding, as a matter of fact, that the first complaint had not been served on Cracker Barrel before it was voluntarily dismissed by Robinson. It follows that such finding is clearly erroneous. Further, because that finding served as the sole factual basis for the court’s legal conclusion that the first complaint was “null and void” for the purposes of OCGA § 9-11-41 (a) (3), that conclusion also constitutes error and must be reversed. It necessarily follows that Robinson’s second voluntary dismissal of her complaint constituted an adjudication on the merits as a matter of law, pursuant to OCGA § 9-11-41 (a) (3).

2. We now turn to Cracker Barrel’s argument that, because Robinson’s second voluntary dismissal constituted an adjudication on the merits under OCGA § 9-11-41 (a) (3), she was barred by the res judicata effect of that provision from exercising the privilege of renewing her complaint under OCGA § 9-2-61 (a). We agree.

Decided April 21, 2017.

Cruser & Mitchell, J. Robb Cruser, Ñola D. Jackson, Robert N. Friedman, for appellant.

Morgan & Morgan, James L. Cannella, Jr., Norman M. Sawyer, Jr., for appellee.

OCGA § 9-2-61 (a) provides as follows:

When any case has been commenced . . . within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later[.]

“The renewal statute is remedial in nature; it is construed liberally to allow renewal where a suit is disposed of on any ground not affecting its merits.” Thus, OCGA § 9-2-61 (a) provides the plaintiff with an opportunity to renew a case that has been dismissed without prejudice, but that privilege does not apply to a case that has been decided on its merits.

Given our ruling in Division 1, supra, that Robinson’s second voluntary dismissal operated as an adjudication on the merits of her complaint as a matter of law, the trial court erred in ruling that Robinson’s third complaint was a valid renewal action and in denying Cracker Barrel’s motion to dismiss on that basis. Accordingly, the trial court’s order is reversed, and this case is remanded for the trial court to dismiss this case with prejudice, as well as to consider Cracker Barrel’s request for attorney fees and expenses of litigation under OCGA § 9-15-14 (a).

Judgment reversed and case remanded with direction.

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

       This Court granted Cracker Barrel’s application for interlocutory review.

       See OCGA § 9-3-33 (“[AJctions for injuries to the person shall be brought within two years after the right of action accrues. . . .”).

       Before its amendment in 2003, OCGA § 9-11-41 (a) provided that a voluntary dismissal was not an adjudication on the merits until the filing of a third notice of dismissal. See OCGA § 9-11-41 (a) (2002). The amended version of the statute applies to all civil actions filed on or after July 1, 2003. Ga. L. 2003, p. 820, § 9.

       See Global Ship Systems v. RiverHawk Group, 334 Ga. App. 860, 862-863 (1) (780 SE2d 697) (2015) (ruling that “[t]he plain meaning of OCGA § 9-11-41 is that a plaintiff’s second voluntary dismissal of a case operates as an adjudication on the merits against the plaintiff,” and, as a result, the plaintiff’s third action was barred by the res judicata effect of subsection (a) (3)) (citation and punctuation omitted); accord Walker v. Mecca, 320 Ga. App. 142, 144 (739 SE2d 450) (2013).

       In a footnote, the court added that “ [i] t should also be noted that the Plaintiff did not raise this argument either in her [b]rief or during oral arguments; this is a sua sponte finding of the Court.” (Emphasis in original.)

        LaSonde v. Chase Mtg. Co., 259 Ga. App. 772, 774 (1) (577 SE2d 822) (2003).

        Anderson v. Westmoreland, 286 Ga.App. 561, 564 (649 SE2d 820) (2007) (punctuationand footnote omitted).

       In addition, in Robinson’s written response in opposition to Cracker Barrel’s motion to dismiss, her counsel stated that Robinson “did voluntarily dismiss this action on two prior occasions!.]”

       In mentioning these statements, we offer no opinion as to whether they could be considered admissions in judicio that would estop Robinson from presenting a contrary argument on appeal. See In re McCool, 267 Ga. App. 445, 448 (600 SE2d 403) (2004) (“[Statements made by a party’s counsel during a hearing or trial are regarded as admissions in judicio and are binding on the party.”); but see Powder Springs Holdings v. RL BB ACQ II-GA PSH, 325 Ga. App. 694, 696 (1) (754 SE2d 655) (2014) (The rule that a party is estopped from contradicting a solemn admission in judicio “does not apply to legal conclusions but only to statements of fact.”) (citation and punctuation omitted).

       See Anderson, 286 Ga.App. at 564 (reversing the trial court’s denial of a motion to dismiss because its ruling was based on findings of fact that were not supported by any evidence).

       See id.; see generally Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 537-538 (4) (422 SE2d 651) (1992) (reversing the trial court’s order to the extent that its ruling was based solely on findings of fact that were not supported by any evidence).

       See Global Ship Systems, 334 Ga. App. at 862-863 (1).

       OCGA § 9-2-61 (a).

        Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994) (emphasis supplied).

       See id.; Bardo v. Liss, 273 Ga. App. 103, 107 (2) (614 SE2d 101) (2005).


author: DILLARD, Presiding Judge.

text:
    A17A0363.
    WILLIAMS v. WILCOX STATE PRISON et al.
    (799 SE2d 811)
   DILLARD, Presiding Judge.

Betty Williams appeals the trial court’s dismissal of her negligence action against Wilcox State Prison and the Georgia Department of Corrections (collectively the “GDOC”), arguing that the court erred in finding that her ante-litem notice failed to comply with the Georgia Tort Claims Act’s (“GTCA”) requirements that it apprise the GDOC of the alleged acts or omissions that caused her loss and of the nature of the loss she allegedly suffered. Although Williams concedes that she failed to comply with the GTCA’s requirement that she attach a certificate to her complaint, certifying that she mailed a copy of the complaint to the Attorney General in a specified manner, she nevertheless maintains that she should have been allowed to amend her complaint to include the certificate. For the reasons set forth infra, we affirm.

The record shows that on May 11, 2015, Williams filed a complaint for damages against the GDOC, alleging that, while visiting Wilcox State Prison, she “tripped and fell over uneven floor [in] the visitor’s bathroom,” which resulted in severe bodily injury The complaint further alleged that the GDOC “did not act reasonably in inspecting or maintaining the ground so as to prevent or correct the dangerous and hazardous condition of the ground” and that Williams’s injuries were proximately caused by its negligence. The GDOC answered, denying the allegations and asserting numerous defenses, including that, in violation of OCGA § 50-21-26 (a) (4), Williams failed to attach as exhibits to her complaint a pre-suit notice of the claim she presented to the Risk Management Division of the Department of Administrative Services and a receipt evincing delivery of the notice. In addition, the GDOC asserted that Williams failed to attach to her complaint a certificate that OCGA § 50-21-35’s requirement of notice to the Attorney General had been satisfied.

On June 26, 2015, the GDOC filed a motion to dismiss Williams’s complaint, arguing that the trial court lacked subject-matter jurisdiction over the case because it had not waived its sovereign immunity to her tort claims and that she failed to demonstrate strict compliance with the GTCA’s ante-litem and notice-of-service provi - sions. Shortly thereafter, Williams amended her complaint to include as exhibits two ante-litem notices dated September 11, 2013, that were sent to Wilcox State Prison and the GDOC, as well as the certified mail receipt for each notice. The GDOC then supplemented its motion to dismiss Williams’s complaint, arguing that, although Williams had attached purported ante-litem notices to her amended complaint, those notices were deficient and failed to strictly comply with OCGA § 50-21-26. In doing so, the GDOC reiterated that Williams had still not provided a certificate showing that notice of her suit had been provided to the Attorney General as required by OCGA § 50-21-35. Following Williams’s response to the GDOC’s motion to dismiss her complaint and other responsive pleadings by the parties, the trial court ultimately granted the GDOC’s motion and dismissed the complaint. This appeal by Williams follows.

We begin by noting that this Court reviews de novo a “trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law.” Further, the trial court’s factual findings will be sustained if “there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” With these guiding principles in mind, we will now address Willliams’s specific claims of error.

1. Williams argues that the trial court erred in dismissing her complaint based on its findings that her ante-litem notices failed to provide the GDOC with sufficient notice of the acts or omissions that caused her alleged loss or of the nature of that loss. We disagree.

As we have explained, the GTCA is “a limited waiver of the State’s sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts,” and requires “a party with a potential tort claim against the State to provide the State with notice of the claim prior to filing suit thereon.” Indeed, the ante-litem notice requirements “serve the purpose of ensuring that the [Sjtate receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.” Importantly, a claimant must “strictly comply with the notice provisions as a prerequisite to filing suit under the GTCA, and substantial compliance is not sufficient.” As we have previously explained, “substantial compliance is not strict compliance. Strict compliance is exactly what it sounds like: strict.” That said, we have repeatedly emphasized that the rule of strict compliance “does not demand a hyper-technical construction that would not measurably advance the purpose of the GTCA’s notice provisions [as reflected by the plain meaning of the relevant statutory text].” Nevertheless, if the ante-litem notice requirements are not met, then the State does not waive sovereign immunity, and the trial court lacks subject-matter jurisdiction over the case.

OCGA § 50-21-26 provides, inter alia, that no person who has a tort claim against the State may bring an action against the State on that claim without first giving notice, which

. . . shall be given in writing and shall be mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim. . . .

As to the content of that notice, OCGA § 50-21-26 (a) (5) provides:

A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.

In granting the GDOC’s motion to dismiss the complaint, the trial court found that Williams’s ante-litem notice failed to strictly comply with OCGA § 50-21-26 (a) (5)’s requirements that it identify the acts or omissions which caused her alleged loss and the nature of that loss. The trial court’s findings are supported by the record.

The identical ante-litem notices attached to Williams’s amended complaint contend that, on or about June 30, 2013, Williams was injured while visiting an inmate at Wilcox State Prison. Specifically, the notices state that, “[wjhile in the bathroom, [Williams] encountered a hazard, water on the floor[,]” and that “[w]ithout warning, or notice, [she] slipped, fell, and was injured.” The notices further assert that Williams’s negligence claims are based on the GDOC’s failure to properly warn her of the water hazard and its failure to maintain a safe environment. But Williams’s complaint was based on an entirely different set of factual allegations. Indeed, as previously mentioned, Williams’s complaint alleged that she was injured at the prison when she tripped and fell over uneven flooring in the visitor’s bathroom, not that she slipped as a result of a water hazard. And unlike her ante-litem notices’ suggestion that her injuries were caused by the GDOC’s failure to keep the bathroom floor dry or to warn her of a water hazard, the complaint alleged that her injuries were caused by the GDOC’s failure to (1) warn of uneven ground; (2) place proper warning signs around the uneven area; (3) inspect the ground so as to discover the hazard; and (4) otherwise maintain the ground in a safe condition. Therefore, because the ante-litem notices made no mention of any alleged negligent acts or omissions on the part of the GDOC with regard to uneven flooring in the bathroom, which was the basis for her negligence action against it, she failed to strictly comply with the GTCA’s notice requirement in OCGA § 50-21-26 (a) (5) (F).

Further, Williams’s ante-litem notices also failed to specify the nature of the loss she suffered, as required by OCGA § 50-21-26 (a) (5) (D). In fact, the ante-litem notices provided no details regarding the type of injuries Williams allegedly suffered. Instead, these notices state generally that she “sustained serious injuries” as a result of a slip-and-fall. And although Williams indicated that she had requested her medical records and expected her damages to exceed $25,000, she provided no information regarding the injuries for which she received or planned to receive medical treatment. Thus, because Williams failed to strictly comply with at least two of OCGA § 50-21-26 (a) (5)’s notice requirements, the trial court correctly found that it lacked subject-matter jurisdiction over her complaint.

2. While Williams concedes that she failed to comply with OCGA § 50-21-35’s requirement that she provide a certificate showing that she notified the Attorney General of her negligence action, she nevertheless contends that she should have been permitted to amend her complaint to include the certification. But even if Williams had amended her complaint to include the required certificate, the trial court still lacks subject-matter jurisdiction over the case for the reasons delineated in Division 1 supra.

Decided April 21, 2017.

The McAleer Law Firm, Charles H. McAleer, Katherine L. Jackson, for appellant.

Christopher M. Carr, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston-Pope, Kirsten S. Daugh-dril, Senior Assistant Attorneys General, Melissa A. Tracy, Assistant Attorney General, for appellees.

For all these reasons, we affirm the trial court’s dismissal of Williams’s complaint.

Judgment affirmed.

Ray and Self, JJ., concur.

       Although Wilcox State Prison is listed as a separate defendant/appellee, it is undisputed that the prison is not a separate entity from the GDOC, and in her appellate brief, Williams addresses the GDOC as the sole appellee.

        See OCGA § 50-21-20 et seq.

       The GDOC also challenged Williams’s choice of venue but contended that transferring the case to another court would be futile due to the lack of subject-matter jurisdiction by any court.

        Dorn v. Ga. Dep’t of Behavioral Health & Developmental Disabilities, 329 Ga. App. 384, 385 (765 SE2d 385) (2014).

        Id. (punctuation omitted).

        Id. (punctuation omitted); accord Cummings v. Ga. Dep’t of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007); Ga. Dep’t of Transp. v. Griggs, 322 Ga. App. 519, 520-21 (745 SE2d 749) (2013).

        Dorn, 329 Ga. App. at 385 (punctuation omitted); accord Bd. of Regents of Univ. Sys. of Ga. v. Myers, 295 Ga. 843, 845 (764 SE2d 543) (2014); Cummings, 282 Ga. at 823; see generally OCGA § 50-21-26 (setting forth the GTCA’s notice requirements).

        Dorn, 329 Ga. App. at 385 (punctuation omitted); accord Myers, 295 Ga. at 845; Cummings, 282 Ga. at 824; Williams v. Ga. Dep’t of Human Res., 272 Ga. 624, 625 (532 SE2d 401) (2000).

        Dorn, 329 Ga. App. at 385; accord Myers, 295 Ga. at 845; Cummings, 282 Ga. at 824; Griggs, 322 Ga.App. at 520; see DeFloria v. Walker, 317 Ga.App. 578, 580 (732 SE2d 121) (2012) (“[I]t is well established that strict compliance with the notice provisions is a prerequisite to filing suit under the [GTCA], and substantial compliance therewith is insufficient. Strict compliance is necessary because the [GTCA] represents a limited waiver of the [SJtate’s sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts.” (citations and punctuation omitted)).

        DeFloria, 317 Ga.App. at 582 (footnote omitted).

        Dorn, 329 Ga. App. at 385 (punctuation omitted); accord Myers, 295 Ga. at 846; Cummings, 282 Ga. at 824; Ga. Dep’t of Transp. v. King, 341 Ga.App. 102, 104 (798 SE2d 492) (2017).

        Dorn, 329 Ga.App. at 385; accord Myers, 295 Ga. at 845; King, 341 Ga.App. at 104.

       OCGA § 50-21-26 (a) (2).

       OCGA § 50-21-26 (a) (5) (A)-(F) (emphasis supplied).

        See OCGA § 50-21-26 (a) (5) (F) (providing that notices given under OCGA § 50-21-26 must include, to the extent of the claimant’s knowledge andbelief and as may be practical under the circumstances, the acts or omissions which caused the loss). In her appellate brief, Williams summarily asserts, without further elaboration or citation to supporting legal authority, that she satisfied the notice requirements of OCGA § 50-21-26 (a) (5) (F) because she apprised the GDOC “of [a] claim arising out of an issue in the bathroom.” But to the extent that this argument has even been adequately raised on appeal, we note that Williams’s notification of where her injury occurred, which is a separate requirement under OCGA § 50-21-26 (a) (5) (C), is not the same as an identification of the particular acts or omissions of the GDOC that allegedly caused the injury as required by OCGA § 50-21-26 (a) (5) (F). See Daker v. State, 300 Ga. 74, 78 (3) n.7 (792 SE2d 382) (2016) (declining to address an enumeration of error when the appellant provided no cogent legal argument to support it); Fennelly v. Lyons, 333 Ga.App. 96, 100 (1) (775 SE2d 587) (2015) (deeming a claim of error abandoned when the appellant failed to provide any cogent argument or legal authority to support it); Dixon v. Metro. Atlanta Rapid Transit Auth., 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (same).

        See Myers, 295 Ga. at 845 (“If the ante litem notice requirements are not met, then the State does not waive sovereign immunity, and therefore, the trial court lacks subject matter jurisdiction.”); Williams, 272 Ga. at 626 (holding that a plaintiff failed to give adequate notice of a wrongful-death claim when the ante-litem notice described the loss as “pain, disfigurement, and a reduced life expectancy”); King, 341 Ga.App. at 106 (holding that an appellant’s ante-litem notice that she intended to “claim the full amount of damages allowed by law” failed to satisfy the requirement that she notify the [SJtateofthe amount of her loss as requiredby OCGA § 50-21-26 (a) (5) (E)); Perdue v. Athens Tech. Coll., 283 Ga.App. 404, 408-09 (641 SE2d 631) (2007) (holding that a case filed under the GTCA was properly dismissed when the ante-litem notice failed to comply with OCGA § 50-21-26 (a) (5) (E)’s requirement that it state the amount of the loss); Johnson v. E.A. Mann & Co., 273 Ga.App. 716, 722 (616 SE2d 98) (2005) (holding that the trial court lacked subject-matter jurisdiction over a claim filed under the GTCA when the ante-litem notice failed to comply with OCGA § 50-21-26 (a) (5) (A)’s requirement that it state the entity that the plaintiff intended to hold liable).

        See OCGA § 50-21-35 (“In all civil actions brought against the state under this article, to perfect service of process the plaintiff must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services at his or her usual office address. The time for the state to file an answer shall not begin to run until process has been served upon all required persons. A copy of the complaint, showing the date of filing, shall also be mailed to the Attorney General at his or her usual office address, by certified mail or statutory overnight delivery, return receipt requested and there shall be attached to the complaint a certificate that this requirement has been met.” (emphasis supplied)).

       As noted by the trial court, the State first raised the issue of Williams’s failure to provide the certificate required by OCGA § 50-21-35 in its answer, which was filed on June 25, 2015. And although more than a year passed between the State’s answer and the trial court’s dismissal of her case on July 20, 2016, Williams never sought to amend her complaint to include the certificate.


author: MILLER, Presiding Judge.

text:
    A17A0531.
    DOWDA v. THE STATE.
    (799 SE2d 807)
   MILLER, Presiding Judge.

Following a jury trial, Cody W. Dowda was convicted of criminal trespass. (OCGA § 16-7-21 (b) (l)). Dowda appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support his conviction; (2) the trial court erred in admitting hearsay and character evidence; and (3) the trial court erred in failing to allow defense counsel to read and respond to a jury note which evidenced juror confusion. As set forth herein, the evidence was sufficient to sustain Dowda’s conviction for trespass and the admission of any hearsay was harmless; however, the trial court was required to give defense counsel an opportunity to review the jury note and to suggest an appropriate response. Because the trial court failed to do so, we reverse Dowda’s trespass conviction. We note, however, that the State is entitled to retry Dowda because the evidence supported his conviction.

Viewed in the light most favorable to Dowda’s conviction, the evidence showed that the victim lived with her daughter and granddaughter in Douglas County. On September 23, 2014, the victim’s granddaughter saw a white pick-up truck back up onto the victim’s property and stop about “two steps” from a woodpile the victim kept on her property about 25 yards from the roadway The granddaughter saw Dowda, who was wearing a bright orange shirt, standing by the right side of the truck’s tailgate, “pretty close” to the woodpile.

The granddaughter then phoned her mother and said that there were two people in a truck backed up to the victim’s firewood pile. The victim and her daughter came running out of the house and saw the white pick-up on her property with the tailgate up against her woodpile. The truck did not appear to be stuck.

The victim and her daughter saw the truck pull out, drive up the street, turn onto another road, and stop. Two “boys” were inside the truck at that time, and one of them had dark hair and was wearing a bright orange shirt. Shortly thereafter, the boys abandoned the truck on a nearby street.

The victim called 911, and when the investigating officer arrived she went over to where the truck was parked. The investigating officer determined that the truck belonged to Dowda’s father, who lived nearby. The officer then went to Dowda’s home and told Dowda’s father that the truck had been impounded. The father called Dowda, and the officer spoke with Dowda on the phone and asked him to return home.

Dowda arrived at his home on foot about five to ten minutes later wearing a bright orange shirt, and he told the officer that the truck had broken down. The officer testified that there were tire tracks in the victim’s grass going from the street curb up to five feet from the woodpile and that the tire tracks were inconsistent with a broken-down vehicle.

Dowda was accused of criminal trespass and criminal attempt to commit a misdemeanor (theft by taking). Following a jury trial, he was convicted of the criminal trespass count but acquitted of the criminal attempt count. Dowda now appeals.

1. On appeal, Dowda contends that the evidence was insufficient to support his conviction for criminal trespass. We disagree.

A person commits the offense of criminal trespass when he “knowingly and without authority . . . [ejnters upon the land or premises of another person... for an unlawful purpose[.]”OCGA § 16-7-21 (b) (1).

Here, the victim’s granddaughter saw Dowda back the truck onto the victim’s property and stop it next to the woodpile, and Dowda fled in the truck and abandoned it on a nearby street right after he was spotted by the victim and her daughter. Moreover, Dowda’s explanation that the truck had broken down was inconsistent with the tire tracks on the victim’s property, as well as the witnesses’ testimony that the truck did not appear to be stuck. This evidence authorized the jury to find that Dowda knowingly and without authority backed the white pick-up truck onto the victim’s property for the unlawful purpose of taking the victim’s firewood. Consequently, the evidence was sufficient to support Dowda’s conviction for criminal trespass. See Harris v. State, 222 Ga.App. 56, 57 (1) (473 SE2d 229) (1996) (evidence that defendant was found walking up the stairs of a burglarized fraternity house at 3:00 a.m. was sufficient to support a finding of unlawful purpose in support of his conviction for criminal trespass); Smith v. State, 226 Ga.App. 150, 151 (1) (485 SE2d 538) (1997) (evidence that a man matching defendant’s description had chiseling tools and left a building shortly after the building’s door was chiseled open was sufficient to support his criminal trespass conviction).

2. In two enumerations of error, Dowda also contends that the trial court erroneously admitted hearsay evidence at his trial. Specifically Dowda argues that the trial court erred in allowing (1) the victim to testify about her granddaughter’s phone call, and (2) the officer to testify about Dowda’s father’s demeanor when the officer told the father why he had to impound the truck. Because these alleged errors could recur on retrial, we address them here. Nevertheless, we find no reversible error as to these enumerations.

(a) The Victim’s Testimony

Any error in admission of the victim’s testimony about the granddaughter’s phone call was harmless because the victim’s testimony was cumulative of the testimony of both the daughter and the granddaughter about that same call. Moreover, Dowda did not object to the daughter’s or the granddaughter’s testimony at trial, and he does not challenge their testimony on appeal. Consequently, Dowda has not shown reversible error in the admission of the victim’s testimony Rutledge v. State, 298 Ga. 37, 40 (2) (779 SE2d 275) (2015) (any error in admitting out-of-court statement was harmless because it was cumulative of other evidence admitted at trial).

(b) The Officer’s Testimony

Dowda argues that the trial court erred in admitting the officer’s testimony regarding the demeanor of Dowda’s parents on the ground that this testimony constituted improper hearsay. We disagree.

Here, the investigating officer testified that he identified Dow-da’s father as the owner of the abandoned truck, and he went to Dowda’s home and met with Dowda’s parents. The officer then testified that, when he told the parents that the truck had to be towed, they “were not shocked. They made it sound like this was something very plausible that their son could have been involved in. They were upset that the truck had to be towed.” Even if the trial court erroneously admitted the officer’s testimony about the parents’ demean- or, it is highly probable that it did not contribute to the jury’s verdict in light of the eyewitness testimony and other cumulative evidence presented against Dowda in this case. See Glispie v. State, 300 Ga. 128, 132 (1) (793 SE2d 381) (2016).

3. Dowda also contends that the trial court erred in failing to allow defense counsel to read and respond to a note the jury sent out during its deliberations that clearly showed that the jury was confused and had not reached a unanimous verdict. We agree, and consequently we reverse Dowda’s trespass conviction.

Here, the record shows that, after about three hours of deliberation, the trial judge received a note from the jury, which stated: “Sir, we cannot reach a unanimous decision[.]” The note indicated that the jury had voted “4 — not guilty based on evidence [and] 2 — innocent on evidence.” The note did not indicate whether the jury was split on both counts, just the trespass count, or just the attempted theft count, but it clearly evidenced confusion as to the charges received by the jury When the trial court received the note from the jury, the trial court merely informed defense counsel and the State that the note said that the jury could not reach a unanimous verdict. The trial court did not show the note to defense counsel, advise defense counsel of its entire content, or afford defense counsel an opportunity to suggest an appropriate response in light of the entire content of the note. Instead, the trial court brought the jury back in and encouraged them to continue discussing the case.

Decided April 21, 2017.

Napier Law, Ernest D. Napier III, for appellant.

Matthew C. Krull, Solicitor-General, Lindsay D. Raynor, Assistant Solicitor-General, for appellee.

Both the Supreme Court of Georgia and this Court have recognized that “the failure of the trial court to inform counsel of the contents of [a jury note] and to seek comment or input in the formulation of the court’s response [constitutes] a violation of [a defendant’s] right to counsel.” Lowery v. State, 282 Ga. 68, 75 (4) (b) (ii) (646 SE2d 67) (2007); see also Wells v. State, 297 Ga. App. 153, 161 (2) (676 SE2d 821) (2009); Andrews v. State, 293 Ga. App. 445, 446 (667 SE2d 212) (2008). In light of this constitutional right, the Supreme Court requires trial courts

to have jurors’ communications submitted to the court in writing; to mark the written communication as a court exhibit in the presence of counsel; to afford counsel a full opportunity to suggest an appropriate response; and to make counsel aware of the substance of the trial court’s intended response in order that counsel may seek whatever modifications counsel deems appropriate before the jury is exposed to the instruction.

Lowery, supra, 282 Ga. App. at 76 (4) (b) (ii). Here, given the jury’s obvious confusion, the trial court’s failure to provide counsel with an opportunity to review the jury note and know its full contents and then discuss the trial court’s response to the note was not harmless error. Instead, the action of the trial court kept the defendant’s counsel ignorant to the jury’s confusion and deprived defendant of his right to counsel. See id. at 75 (4) (b) (ii). Unfortunately, as a consequence, we must reverse Dowda’s trespass conviction. In so holding, we note that the State is entitled to retry Dowda on the trespass charge because, as discussed in Division 1, the evidence was sufficient to support his conviction for that offense. Wells, supra, 297 Ga. at 153-154.

Judgment reversed.

Doyle, C. J., and Reese, J., concur.

       The jury acquitted Dowda of an additional misdemeanor charge of attempted theft by taking firewood (OCGA §§ 16-4-1 and 16-8-2).

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       We note that the jury was entitled to conclude that Dowda committed the offense of trespass, even though it acquitted him of the charge of attempted theft, because Georgia has abolished the inconsistent verdict rule. See Jamale v. State, 302 Ga.App. 140, 143 (2) (a) (690 SE2d 420) (2010) (jury could have concluded that defendant committed robbery by intimidation even while it acquitted him of theft); Matthiessen v. State, 277 Ga.App. 54, 56-57 (4) (625 SE2d 422) (2005) (defendant’s acquittal on theft by deception charge did not require reversal of his conviction for theft by taking).

       Dowda also argues that the officer’s testimony constituted improper character evidence. At trial, however, Dowda raised only a hearsay objection to that testimony. Consequently, Dowda has waived this argument on appeal. Geiger v. State, 295 Ga. 648, 653 (4) (b) (763 SE2d 453) (2014).


author: Ellington, Presiding Judge.

text:
    A17A0281.
    A17A0285.
    A17A0296.
    A17A0297.
    A17A0298.
    A17A0299.
    ALDREDGE v. BYRD. ALDREDGE v. WILSON. ALDREDGE v. BYRD. ALDREDGE v. ARNOLD. ALDREDGE v. WILLIAMS. ALDREDGE v. SMITH.
    (799 SE2d 263)
   Ellington, Presiding Judge.

Marquita and Erica Byrd, Sade Wilson, Anthony Arnold, Timothy Smith, and Cawandle Williams filed suit against Phillip Aldredge in the State Court of Fulton County, seeking compensation for injuries they suffered as the result of a deck collapse on Aldredge’s rental property. Following a hearing, the trial court denied Aldredge’s motions for summary judgment. We granted Aldredge’s applications for interlocutory appeal, and, for the reasons explained below, we reverse.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). Where a respondent who will not bear the burden of proof at trial moves for summary judgment and “point[s] out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the [claimant’s] case[,]” the claimant “cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Citations and punctuation omitted.) Id. at 623 (1) (a). The relevant facts that follow are undisputed unless otherwise noted.

Aldredge purchased 6340 Hollywood Drive, a single family home in Forest Park, Clayton County, in 1987. The record shows that, in 1988, not long after Aldredge bought the house, he hired a carpenter, John Templeman, to remove the existing back deck and to build a new one. Neither Aldredge nor Templeman obtained a building permit for the deck construction. Although Aldredge did not direct or supervise the building of the deck, he knew that Templeman attached the deck to the house using nails and not bolts.

Aldredge rented the house to Kenwardo Moore and Karen Kelly in February 2010. The tenants had exclusive possession of the premises under the terms of the rental agreement, and Aldredge agreed to maintain the property and retained the right to enter the property to make repairs, improvements, or periodic inspections as he deemed necessary. The tenants agreed to notify Aldredge of any maintenance that needed to be done.

In 2010, shortly before or just after renting the house to Moore and Kelly, Aldredge replaced several deck boards, which had been stained with grease and/or charred by a prior resident. Aldredge did not replace the ledger board or the deck floor board closest to the house. Aldredge deposed that, when he replaced the deck boards in 2010, he thoroughly inspected the deck, including the attachment and the condition of the ledger board and the supporting joists underneath the deck boards. He did not observe any rot or other defect during that inspection. In addition, he deposed that he was conscious that “[t]he deck set off the ground” and so on other occasions, whenever he went to the property to power wash the deck or do other maintenance, he always made a point of checking “the general condition of the deck, see if there’s any rot, see if there’s any movement, anything that was weak about it, the nails, were they in good shape, that kind of thing.” A1 dredge’s repair work did not involve or uncover the house’s rim joist, which remained concealed by the deck’s ledger board. Aldredge deposed that he was aware that even pressure-treated lumber will eventually need to be replaced and will lose its resistance to mold and rot, but he did not know how long that might take. He deposed that, before the deck collapsed, there was no evidence of any visible problem of any kind with the deck. The tenants never notified Aldredge of any problem related to the deck and had never experienced or observed any problems with the deck.

On March 19, 2011, Kelly hosted a barbeque. Kelly’s daughter, Sade Wilson, and the five other appellees were among the guests who were out on the back deck when the deck broke away from the house, and the edge of the deck nearest to the house collapsed to the ground.

Dexter Norwood, a code enforcement officer with the Clayton County police department, inspected the premises on March 21,2011. He deposed that he did not observe any defect in the deck, the exterior walls, or any other portion of the premises which would have been visible to or observable by anyone prior to the happening of the deck collapse on March 19, 2011. To Norwood’s knowledge, the premises were in compliance with applicable building codes.

In addition, Aldredge also inspected the deck within days after it collapsed, and he observed that the rim joist appeared rotted and damaged. He deposed that, after the deck collapsed, he was told that there was no flashing, but that, before the deck collapsed, he had not known that Templeman did not use flashing during the construction of the deck. He theorized that “if there had been flashing there, obviously water wouldn’t have got to” the board that rotted and stated that, if he had known about the lack of flashing, he might have been more “suspicious” of the safety of the deck. Aldredge deposed that, even after the collapse, the deck itself still appeared sound and “solid as a rock” and that the only problem was that the rim joist, which supported the deck, had rotted.

A man named George Harper inspected the deck approximately one month after it collapsed. He found that the rim joist, the part of the house structure to which the deck was attached, had rotted and deteriorated. He deposed that that particular board likely would have been concealed by the deck’s ledger board before the deck collapsed. He had no way of knowing whether any defect in the deck would have been observable by anyone prior to the deck collapse.

In denying Aldredge’s motion for summary judgment, the trial court determined that Aldredge was an out-of-possession landlord, such that the guests must show pursuant to OCGA § 44-7-14 that their damages resulted either from failure to repair the premises or faulty construction of the premises. Consequently, the guests cannot prevail by meeting the less stringent negligence standard applicable to premises owners and occupiers generally App lying OCGA § 44-7-14, the trial court determined that there was some evidence from which a jury could find that Aldredge should have known there was a need for repair and failed to do so.

1. Aldredge contends that there is no evidence that the deck collapsed because of faulty construction and no evidence that he had actual or constructive knowledge that the premises were in need of repair. As a result, he contends, he is entitled to judgment as a matter of law.

Because Aldredge was an out-of-possession landlord, pursuant to OCGA § 44-7-14he is liable in tort only for a third party’s damages that result either from faulty construction of the premises or from the landlord’s failure to repair the premises. Martin v. Hansen, 326 Ga. App. 91, 92 (1) (755 SE2d 892) (2014).

Because the undisputed evidence shows that Aldredge hired an independent contractor to build the deck, he cannot be held liable for faulty construction. Martin v. Johnson-Lemon, 271 Ga. 120,124 (2) (b) (516 SE2d 66) (1999) (Where a landlord hired an independent contractor to install a pool and did not supervise or direct the construction, under OCGA § 44-7-14, the landlord could not be held liable in tort for faulty construction of the pool.).

Turning to liability for a failure to repair, it is well settled that the landlord is not an insurer of its tenants’ safety, and liability arises only where the landlord is on notice of a defect and the consequent necessity for repairs. Martin v. Hansen, 326 Ga. App. at 92-93 (1); Karle v. Belle, 310 Ga. App. 115, 116 (712 SE2d 96) (2011); Haynes v. Kingstown Properties, 260 Ga. App. 102, 103 (578 SE2d 898) (2003).

Accordingly, if the landlord receives notice that the premises are not in repair, it has a duty to inspect and investigate in order to make such repairs as the safety of the tenant requires. This duty extends not only to tenants, but to those invited onto the leased property by a tenant. [A landlord], therefore, is liable to [a tenant’s guests] for damages caused by its failure to exercise reasonable care in repairing a known dangerous condition. The required knowledge can be actual or constructive.

(Citations and punctuation omitted; emphasis in original.) Haynes v. Kingstown Properties, 260 Ga. App. at 103.

In this case, Aldredge’s testimony that he was unaware of any problem with the deck or its attachment to the house pierced the only factual allegation of negligence or causation asserted against him by disproving the knowledge element of the appellees’ claims. The appellees failed to adduce any evidence that Aldredge knew or should have known that the deck was in need of repair. Given the absence of evidence that would authorize a jury to find that Aldredge failed to exercise reasonable care in repairing a known dangerous condition, the trial court erred in denying Aldredge’s motions for summary judgment. Silman v. Assoc. Bellemeade, 294 Ga.App. 764, 765-766 (2) (669 SE2d 663) (2008), aff’d, 286 Ga. 27 (685 SE2d 277) (2009) (The landlord was entitled to summary judgment where there was evidence that, two months before the landlord’s deck collapsed, a city inspector had inspected the property for safety pursuant to a local ordinance and examined the deck above and below and found no potential problems with the structure and where, although the tenant thought the deck seemed “wobbly,” there was no evidence that the tenant ever reported that observation to the landlord or that the landlord was otherwise put on notice that the deck needed repair.).

Decided March 30, 2017

Reconsiderations denied April 26, 2017.

Hedrick Law, L. Bruce Hedrick, Jr., for appellant.

Davis, Zipperman, Kirschenbaum & Lotito, Steven A. Suna; Montlick & Associates, Alan Y. Saltzman, for appellees.

2. A1 dredge contends that the trial court erred in denying his motions for summary judgment because it made certain erroneous factual assumptions, “in the absence of any competent evidence.” Because we have reviewed the evidence de novo and determined that the trial court erred in concluding that there are genuine issues of material fact, any other errors in the trial court’s analysis are moot.

Judgments reversed.

Barnes, P. J., and Mercier, J., concur.

       We note that the trial court, the attorneys, and the witnesses used various terms for the part of the house’s structure to which the deck was attached, including “rim joist,” “rim board,” “band joist,” “band board,” and “sill plate.” We have carefully reviewed the entire record, including the speakers’ extensive references to photographs, and conclude that it is undisputed that these references are to the same structure, that is, the wooden board that is part of the side of the house at the level of the floor joists and to which Templeman nailed the deck’s ledger board, which is the corresponding board that is part of the side of the deck at the level of the floor joists. To avoid confusion in this decision, we have used the common term “rim joist” whenever a speaker refers to the part of the house’s structure to which the deck was attached.

       At the same time, Aldredge replaced the gutters. He deposed that the old “galvanized” gutters had “[djeteriorated” and “rusted” and that he replaced them with “nice aluminum gutters . . . with good hangers and that kind of thing.”

       During his deposition, Aldredge stated that, at that time, he was aware that the building code then required bolts. He also deposed that he did not believe bolts would have prevented the collapse.

       Although the appellees assert that the absence of flashing was “obvious,” they have identified no evidence from which a jury could infer that, after Templeman had attached the deck to the house, an observer could have discerned that he had not installed flashing to protect the structure from water incursion.

       Aldredge deposed that Paul Hardy, whom he believed to be the chief building inspector for Clayton County, was on the site that day and told him that there was nothing wrong with the deck itself and that the deck had pulled loose because water had gotten behind the ledger board and rotted the rim joist; Hardy, however, did not personally give any evidence in this case. He also deposed that another man, Jeff Tarbutton, said that a lack of flashing caused the rot; Tarbutton also did not personally give any evidence in this case.

       Although the appellees cited to Harper’s deposition, and Aldredge described him as the appellees’ “own hired expert witness,” this Court cannot discern whether the appellees intended to offer him as an expert or whether he was qualified to inspect the deck.

       OCGA § 44-7-14 provides: “Having fully parted with possession and the right of possession, . . . the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.”

       See OCGA § 51-3-1 (“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”).

       See Martin v. Hansen, 326 Ga. App. at 92-94 (1) (Where a tenant alleged that the landlords were negligent by failing to repair the defective top step of the flight of stairs and in failing to warn her of the stair’s defective condition, the landlords’ affidavit evidence that they were unaware of any abnormality regarding the height of the top stair or that it violated any building code “pierced the only factual allegation of negligence or causation asserted against them by disproving the knowledge element of [the tenant’s] claims.” Because the tenant adduced no evidence that the landlords observed any problem with the stairs or otherwise had notice of the allegedly defective condition of the stairs that caused the tenant’s injury, the landlords were entitled to summary judgment.).

       See Watts & Colwell Builders v. Martin, 313 Ga. App. 1, 6-7 (3) (720 SE2d 329) (2011) (The landlord was entitled to summary judgment where there was no evidence that, before the hinge on its bathroom stall door sheared off and the plaintiff was knocked down, the landlord had received any complaints about the condition of the hinges or other notice of any need to repair the doors.); see also Wingo v. Harrison, 268 Ga. App. 156, 159 (601 SE2d 507) (2004) (Homeowners were entitled to summary judgment under OCGA § 51-3-1 for injuries caused by the collapse of deck where there was no evidence that the homeowners had observed that the wood had rotted or that they were otherwise on notice of any latent defect.); cf. Thompson-Weinman & Co. v. Brock, 144 Ga. App. 346, 348-350 (3) (241 SE2d 279) (1977) (The evidence presented a jury question, under the reasonable care standard provided in the predecessor to OCGA § 51-3-1, regarding whether a property owner breached a duty to inspect a wooden utility pole on the property, where the pole had been standing on the property for approximately 40 years, the owner knew that utility poles could rot, and the owner “had in his employ an electrician who inspected poles for rotting and reported his findings to the company so that it might correct any problems.”).


author: Bethel, Judge.

text:
    A17A0617.
    GEORGIA DERMATOLOGIC SURGERY CENTERS, P.C. et al. v. PHARIS et al.
    (800 SE2d 376)
   Bethel, Judge.

Georgia Dermatologic Surgery Centers, PC. (“GDSC”) and Mark F. Baucom (derivatively on behalf of, and as shareholder of, GDSC) appeal two summary judgment orders, one of which found that all of Baucom’s counterclaims failed, and the other of which found GDSC had to indemnify David B. Pharis for his reasonable expenses incurred by Pharis’ successful defense in an earlier, separate lawsuit. GDSC and Baucom challenge the basis for the summary judgment orders. We affirm the court’s grant of summary judgment with respect to GDSC’s indemnification of Pharis, but vacate the court’s order granting summary judgment to Pharis on Baucom’s counterclaims and remand the case for further proceedings consistent with this opinion.

“We review a grant of summary judgment de novo, and we view the evidence in a light most favorable to the nonmovant.” Ga. Dermatologic Surgery Centers v. Pharis, 323 Ga. App. 181, 182 (746 SE2d 678) (2013) (citation and punctuation omitted). So viewed, the evidence shows that Pharis and Baucom formerly practiced together as dermatologic surgeons in their jointly-owned medical practice, GDSC. Baucom removed Pharis from GDSC as an employee, officer, and director. Pharis brought suit against GDSC over the termination, and opened his own clinic, David B. Pharis, M.D., PC. in early 2011. In 2012, the trial court ruled that Pharis had been illegally terminated and ordered Pharis reinstated at GDSC as an employee and as vice president, secretary, and treasurer. This Court later affirmed that finding, holding that Baucom did not have authority to terminate Pharis — such action had to come from GDSC’s board of directors. See id. at 183-184 (1). The lawsuit returned to the lower court for a trial on damages.

However, Pharis continued working for his own clinic, and Bau-com conceded during a 2014 deposition in another lawsuit between the two parties that Pharis was operating a lawful competing practice. Baucom also conceded that he did not then consider Pharis to be an officer or director of GDSC at that time. Pharis demonstrated through testimony and other documents that Baucom was listed as the only director and officer of GDSC on its annual corporate minutes, GDSC’s annual corporate registration statement, and tax returns for the years following the termination. However, shortly before the trial on damages, Baucom delivered a letter to Pharis indicating an intention to take legal action against Pharis for breach of fiduciary duties to GDSC, among other things.

On March 23, 2015, Pharis filed suit against Baucom and GDSC seeking: (1) a declaratory judgment as to the propriety of Pharis continuing to practice in his own clinic; (2) indemnification against GDSC under OCGA § 14-2-852 for Pharis’ successful defense in an earlier, separate lawsuit; and (3) attorney fees and litigation costs pursuant to OCGA § 13-6-11. GDSC and Baucom filed a counterclaim for breach of fiduciary duties, usurpation of corporate opportunities, civil conspiracy, and attorney fees and costs.

Pharis moved for summary judgment on all of GDSC and Bau-com’s counterclaims, which the trial court granted. In its order, the trial court found that Baucom was estopped from asserting that Pharis is a director or officer of GDSC, and that therefore Baucom and GDSC’s derivative counterclaims against Pharis for breach of fiduciary duties and usurpation of corporate opportunities fail as a matter of law. The trial court further found that the failure of those two counterclaims also caused other derivative counterclaims by Baucom and GDSC for civil conspiracy and attorney fees to fail.

Pharis additionally moved for summary judgment as to his claim that GDSC was responsible for indemnifying him for his expenses in successfully defending against an earlier, separate lawsuit as provided in OCGA § 14-2-852. The trial court granted Pharis’ motion and found that GDSC was responsible under the statute for indemnifying Pharis for the reasonable expenses incurred by his successful defense in the 2013 litigation. This appeal of both summary judgment orders followed.

1. Baucom and GDSC argue that the trial court erred in granting summary judgment in Pharis’ favor because the trial court relied on unspecified principles of equity, and because there is a dispute of material fact with respect to each of the elements of equitable estoppel, which also formed the basis for the trial court’s grant of summary judgment on the counterclaims asserted against Pharis.

The essential elements of equitable estoppel are: (1) a false representation or concealment of facts; (2) within the knowledge of the party making the one or concealing the other; (3) the person affected thereby must be ignorant of the truth; (4) the person seeking to influence the conduct of the other must act intentionally for that purpose; and (5) the person complaining shall have been induced to act by reason of such conduct of the other. Kim v. Park, 277 Ga. App. 295, 296 (626 SE2d 232) (2006). “There can be no estoppel by conduct where both parties have equal knowledge or equal means of knowing the truth.” Collins v. Grafton, Inc., 263 Ga. 441, 443 (2) (435 SE2d 37) (1993) (citation and punctuation omitted).

The trial court did not specify how it found each of these elements was met, and supporting evidence does not obviously appear from the record. Indeed, rather than defend the equitable theory on which the trial court based its order, Pharis instead argues that the order should be affirmed as “right for any reason” because of the dearth of evidence showing that he was reinstated as an officer or director of GDSC. “Under the ‘right for any reason’rule, an appellate court will affirm a judgment if it is correct for any reason, even if that reason is different than the reason upon which the trial court relied.” City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002). This Court applies that principle only where “the judgment may be sustained upon a legal basis apparen t from the record and which was fairly presented in the court below.” Bullington v. Blakely Crop Hail, 294 Ga.App. 147, 152 (3) (668 SE2d 732) (2008) (citation and punctuation omitted; emphasis supplied).

But under these circumstances, “we have discretion either to perform an independent de novo review of the record that was properly before the trial court in order to determine whether summary judgment was appropriate for another reason or to return the case to the trial court for further proceedings.” McRae v. Hogan, 317 Ga. App. 813, 818 (4) (732 SE2d 853) (2012) (citing City of Gainesville, 275 Ga. at 838-839). Here, despite the persuasive and strong arguments from Pharis, we do not believe the record is sufficiently developed on these points for us to act on his “right for any reason” theory. A review of the facts and legal issues leads us to conclude that a remand with respect to GDSC and Baucom’s counterclaims is appropriate.

2. Baucom and GDSC argue that the trial court should not have found that GDSC has to indemnify Pharis for the litigation expenses he incurred in connection with his successful defense of claims asserted against him in the 2013 lawsuit. Rather, Baucom and GDSC argue that at a minimum, a fact question exists as to whether Pharis was sued as a director because Pharis was also sued as an officer in the 2013 litigation, and therefore would have owed the same fiduciary duties he was sued for breaching.

OCGA § 14-2-852 provides for mandatory indemnification of reasonable expenses incurred by a director in connection with a proceeding where the director “who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he or she was a party because he or she was a director of the corporation!)]” By its express terms, the statute leaves no room for discretion. Crocker v. Stephens, 210 Ga. App. 231, 239 (9) (435 SE2d 690) (1993), disapproved on other grounds by Kim v. Lim, 254 Ga. App. 627 (563 SE2d 485) (2002).

The first amended complaint in the 2013 litigation reflects that Pharis was sued by Baucom for breach of fiduciary duty in his capacity of shareholder, officer, director, and partner. Summary judgment was granted in Pharis’ favor on all of Baucom’s claims asserted in the 2013 lawsuit. In that order, the trial court stated that Baucom did not have standing to assert a breach of fiduciary duty claim directly against Pharis because the two were co-directors and co-shareholders, not partners.

Decided April 27, 2017.

Schreeder, Wheeler & Flint, Michael D. Flint, John A. Christy, Andrew J. Lavoie, for appellants.

Stanley, Esrey & Buckley, James M. Sherman, Sherri L. Kimmell, for appellees.

The claim against Pharis in his capacity as a director is not negated by the fact that Baucom also asserted a claim against Pharis in his other capacities, as well. See Crocker, 210 Ga. App. at 239 (9) (disregarding plaintiffs’ argument that party was not entitled to indemnification because action was unrelated to his position as a director where plaintiffs specifically alleged party breached his fiduciary duty as a director). The trial court did not err in finding indemnification proper here.

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

McFadden, P. J., and Branch, J., concur.

       A jury awarded Pharis $1.3 million on his claim against GDSC for breach of contract. Ga. Dermatologic Surgery Centers v. Pharis, 339 Ga. App. 764 (792 SE2d 747) (2016). This Court reversed a portion of the damages awarded. See id. at 771-772 (4).

       This claim was later dropped.

       The claim for attorney fees and costs under OCGA § 13-6-11 was also dropped.

       At the hearing on the motion, the trial court understandably took issue with Baucom’s actions in designating himself the only officer and director and conducting his business without Pharis but then later bringing suit against Pharis for breach of fiduciary duties.

       In the 2013 lawsuit, Pharis was sued for breaching his fiduciary duty to GDSC prior to his termination.


author: BARNES, Presiding Judge.

text:
    A17A0544, A17A0545.
    STRONG et al. v. JWM HOLDINGS, LLC; and vice versa.
    (800 SE2d 380)
   BARNES, Presiding Judge.

These companion appeals arise out of a dispute over the right to redeem certain real property sold at a tax sale. In Case No. A17A0544, Annette Lowe Strong, as administrator of two estates, and Douglas Slappey, a potential heir of one of the estates, appeal the trial court’s grant of summary judgment to JWM Holdings, LLC (“JWM”) on the estates’ claims relating to the redemption of the property. In Case No. A17A0545, JWM appeals the trial court’s final order and judgment denying its counterclaim for declaratory relief. For the reasons discussed below, in Case No. A17A0544, we affirm the trial court’s order granting summary judgment to JWM on the estates’ claims pertaining to the redemption of the property. In Case No. A17A0545, we vacate the trial court’s final order and judgment denying JWM’s counterclaim for declaratory relief, and we remand with the instruction that the counterclaim be dismissed without prejudice for lack of subject matter jurisdiction.

The record reflects that certain real property located in Fulton County (the “Property”) was deeded to Charlene West in 1958. Charlene later married Oscar Frazier and changed her last name to Frazier, and the couple lived together in the Property throughout their marriage. Charlene died in 1974. No will was probated in common or solemn form following her death, and there was no record of the Property being deeded to anyone from Charlene’s estate.

After Charlene died, Oscar continued to reside in the Property and to pay all of the property taxes until his death in 1998. No will was probated for Oscar’s estate following his death.

After Oscar’s death, the property taxes for the Property were not paid for several years. A tax sale of the Property was conducted in 2013, and the Property was sold to the highest bidder. The highest bidder conveyed the Property to JWM in March 2014.

Strong, who was Oscar’s niece, was appointed to serve as administrator of Oscar’s estate in March 2014 and as temporary administrator of Charlene’s estate in May 2014. Strong thereafter filed suit on behalf of both estates against JWM, the Fulton County tax commissioner, and Slappey, who was one of Charlene’s potential heirs. Strong sought to quiet title to the Property and to enjoin the defendants from preventing her from redeeming the Property on behalf of the estates.

JWM answered and asserted several counterclaims, including a counterclaim for declaratory relief that Strong was barred from ever redeeming the Property on behalf of the estates because Strong had failed to satisfy the requirement of tender of the redemption price before filing the present suit. Slappey answered and filed a cross-claim against JWM seeking a declaration with regard to his and the estates’ rights to redeem the Property.

JWM filed a motion for summary judgment on Strong’s claims, Slappey’s cross-claim, and several of its own counterclaims, including its counterclaim for declaratory relief. The trial court granted summary judgment to JWM on Strong’s claims, concluding that the uncontroverted evidence showed that Strong had failed to satisfy the requirements for tendering the redemption price to JWM before filing her lawsuit, which was fatal to her claims. The trial court also ultimately granted summary judgment to JWM on Slappey’s cross-claim on several grounds.

In contrast, the trial court denied summary judgment to JWM on its counterclaim for declaratory relief, concluding that JWM’s claim that Strong was barred from redeeming the Property on behalf of the estates in future litigation was premature and that her failure to make a proper tender in this case did not foreclose the possibility of later redemption of the Property by Strong. Subsequently, after a bench trial, the trial court entered a final order and judgment denying JWM’s counterclaim for declaratory relief on the same grounds. These companion appeals followed.

Case No. A17A0544

1. Appellants Strong and Slappey argue that the trial court erred in finding that Strong had failed to make a proper tender of the redemption price on behalf of the estates to JWM before filing suit and in granting summary judgment to JWM on Strong’s claims on that ground. The appellants maintain that there was evidence that the requirement of actual tender of the redemption price was waived by JWM based on pre-suit communications in which JWM’s counsel stated that JWM would reject any tender made by Strong in her personal or representative capacities.

Summary judgment is proper if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from the grant of summary judgment, we “conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party” Bank of North Ga. v. Windermere Dev., Inc., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

Under OCGA § 48-4-40, the article of the Georgia Code governing redemption of property after a tax sale to satisfy unpaid taxes, a delinquent taxpayer has the right to redeem the property by paying the amount required for redemption at any time within 12 months of the sale and at any time after the sale until the right to redeem is foreclosed by the new owner pursuant to OCGA § 48-4-45 or by the ripening of the purchaser’s title through prescription. OCGA § 48-4-48. The right to redeem property sold under a tax execution is conditioned upon the tender of the amount required for redemption, which must be made before the filing of the redemption action, must be continuous unless waived by declaration or conduct, and must be made to the party entitled to payment. Mark Turner Properties v. Evans, 274 Ga. 547 (3) (554 SE2d 492) (2001); Machen v. Wolande Management Group, 271 Ga. 163, 165 (517 SE2d 58) (1999); Forrester v. Lowe, 192 Ga. 469, 475-476 (15 SE2d 719) (1941) (tender insufficient where not made before action filed in court). See Durham v. Crawford, 196 Ga. 381 (26 SE2d 778) (1943) (tender ineffective when made during the pendency of the suit). This affords the new owner the “opportunity to accept the money and convey the property voluntarily, before processes of the courts are invoked to compel [it] to do that which [it] is required to do under the law, and perhaps would do if afforded an opportunity.” Forrester, [192 Ga.] at 475.

Community Renewal & Redemption v. Nix, 288 Ga. 439, 440 (1) (704 SE2d 759) (2011). See OCGA § 48-4-40 (1980).

Mindful of these principles, we turn to the record in the present case. The record reflects that on March 27,2014, Strong was appointed as administrator of Oscar’s estate, and she contacted an attorney and asked her to communicate with JWM about the estate redeeming the Property. In April 2014, the attorney contacted JWM’s attorney by telephone and e-mail, requesting the redemption price for the Property. JWM’s attorney responded by e-mail that no documentation had been provided that showed a right to redeem by Strong or any other person acting on behalf of Oscar’s estate, but he nevertheless provided the redemption price as requested. JWM’s attorney further stated that JWM would reject any tender of the redemption price by Strong “or any other person who does not have the legal right to redeem.”

A series of e-mails followed in which the attorney advocating for the right of Oscar’s estate to redeem the Property sent copies of various documents to JWM’s attorney in an effort to convince him that the estate had a valid interest in the Property and thus was entitled to seek redemption. JWM’s attorney remained unconvinced and reiterated that JWM would not agree to Strong or any other person acting on behalf of Oscar’s estate redeeming the Property

Subsequently, on May 20, 2014, Strong was appointed as temporary administrator of Charlene’s estate. On May 22, 2014, Strong filed the present suit on behalf of Charlene’s and Oscar’s estates against JWM and the other defendants, seeking to quiet title to the Property and to enjoin JWM from barring Strong from redeeming the Property

In light of this uncontroverted record, we conclude that Strong failed asa matter of law to satisfy the requirement of tender on behalf of either estate. It is true that tender of the amount required for redemption “is waived when the party entitled to payment, by declaration or by conduct, proclaims that, if tender of the amount due is made, an acceptance of it will be refused.” B-X Corp. v. Jeter, 210 Ga. 250, 255 (2) (78 SE2d 790) (1953). But for an actual tender to be waived by the word or conduct of the party entitled to payment, it is still necessary for the party seeking redemption “to make an actual, present bona fide offer to pay that which is due” before filing the redemption action. (Citation and punctuation omitted.) Machen, 271 Ga. at 166 (1). See Nix, 288 Ga. at 440 (1); B-X Corp., 210 Ga. at 255 (2). Expressing a general willingness or desire to redeem the property is not sufficient; there must be an actual offer to pay the required redemption price. See Machen, 271 Ga. at 166 (1) (appellants could not demonstrate that appellee waived actual tender of payment “unless they at least communicated their offer to pay the required sums”); Jolly v. Jones, 201 Ga. 532, 532 (2) (40 SE2d 558) (1946) (discussing the concept of tender of money and noting that “there must be an actual, present bona fide offer to pay, and such requirement is not met by merely evidencing a willingness to pay”) (emphasis in original).

Although JWM’s attorney indicated that actual tender of the redemption price would be refused, there is no evidence of any pre-suit communications on behalf of either estate that included an actual, present bona fide offer to pay the redemption price that had been provided by JWM’s attorney Moreover, Strong’s counsel conceded that Strong did not have the money to pay the redemption price and had not obtained the probate court’s approval to seek redemption of the Property on the estates’ behalf. Strong likewise admitted in her deposition that the estates did not have the cash to pay the redemption price and that the money would have to be raised from other family members.

Under these circumstances, there is simply no evidence of record demonstrating an actual, present bona fide offer on behalf of the estates to pay the redemption price before suit was filed, and, therefore, the trial court committed no error in granting summary judgment to JWM on Strong’s claims. Although the statements of JWM’s attorney might have excused a subsequent failure by the estates to make an actual tender of the redemption price, “none of [the attorney’s] statements or conduct can justify [Strong’s] failure even to make [JWM’s attorney] an initial offer of a tender” of that price. (Emphasis in original.) Machen, 271 Ga. at 166 (1).

Case No. A17A0545

2. Cross-appellant JWM argues that the trial court erred in denying its counterclaim for a declaratory judgment. JWM contends that by failing to meet the tender requirements in the present suit, Strong is barred from asserting any right to redeem the Property in any future suit she might bring on behalf of the estates, and that it was entitled to declaratory relief to that effect.

“The Declaratory Judgment Act provides a means by which a superior court simply declares the rights of the parties or expresses its opinion on a question of law, without ordering anything to be done.” (Citation and punctuation omitted.) Baker v. City of Marietta, 271 Ga. 210, 213 (1) (518 SE2d 879) (1999). The purpose of the Act “is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations,” and its provisions are “to be liberally construed and administered.” OCGA § 9-4-1.

Nevertheless, “[i]t is a settled principle of Georgia law that the jurisdiction of the courts is confined to justiciable controversies, and the courts may not properly render advisory opinions.” Fulton County v. City of Atlanta, 299 Ga. 676, 677 (791 SE2d 821) (2016). Declaratory relief therefore is inappropriate for controversies that are “merely hypothetical, abstract, academic or moot,” and a “[declaratory judgment will not be rendered based on a possible or probable future contingency because such a ruling would be an erroneous advisory opinion.” (Citations and punctuation omitted.) Burton v. Composite State Bd. of Med. Examiners, 245 Ga. App. 587, 588 (538 SE2d 501) (2000). See Fulton County, 299 Ga. at 677-678.

Decided April 28, 2017.

In its counterclaim for declaratory relief, JWM sought a ruling from the trial court regarding the viability of any future lawsuit brought by Strong on behalf of the estates seeking redemption of the Property But entry of a declaratory judgment that “rules in a party’s favor as to future litigation over the subject matter” would constitute an “erroneous advisory opinion.” Baker, 271 Ga. at 215 (1). See Chambers of Ga. v. Dept. of Natural Resources, 232 Ga. App. 632, 634 (502 SE2d 553) (1998) (declaratory judgment claim seeking a judicial ruling on issues anticipated to arise if new administrative application was filed was inappropriate because it sought only an “advisory opinion so [as to] test the strength of [the opposing party’s] anticipated future defenses”). Accordingly, JWM’s counterclaim for declaratory relief was premature and not ripe for adjudication.

While the trial court denied JWM’s counterclaim for declaratory relief on the ground that it was premature, the court also denied the counterclaim on the alternative substantive ground that Strong’s failure to make a proper tender in this case did not foreclose the possibility of later redemption of the Property However, because JWM’s counterclaim for declaratory relief was premature and sought an opinion that was advisory in nature, the trial court lacked subject matter jurisdiction over the counterclaim. Fulton County, 299 Ga. at 676, n. 2. When a trial court is without jurisdiction over a declaratory judgment claim because of a lack of justiciability, the proper disposition is for the trial court to dismiss the claim without prejudice. Pinnacle Benning LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 614 (1) (724 SE2d 894) (2012). We therefore must vacate the trial court’s final order and judgment denying JWM’s counterclaim for a declaratory judgment and remand for the trial court to dismiss the counterclaim without prejudice. Id.

Judgment affirmed in Case No. Al 7A0544. Judgment vacated and case remanded with direction in Case No. Al 7A0545.

McMillian and Mercier, JJ., concur.

The Gibson Law Firm, Catherine Gibson McCauley, for appellants.

Michael A. Dominy, for appellee.

       The appellants appealed directly to the Supreme Court of Georgia, which subsequently transferred the appeal and cross-appeal to this Court.

       The Fraziers will be referred to by their first names for ease of reference.

       JWM also asserted a cross-claim against the Fulton County tax commissioner for reformation of the tax deed, but that claim is not at issue in these appeals.

       JWM had previously filed a motion to dismiss Strong’s complaint for failure to state a claim upon which relief could be granted on the ground that Strong had failed to tender the redemption price. The trial court denied the motion but granted a certificate of immediate review. JWM filed an application for interlocutory appeal in the Supreme Court of Georgia, which denied the application. The Supreme Court’s denial of the application for interlocutory appeal does not preclude this Court from reviewing the subsequent final orders entered in this case. See Citizens & Southern Nat. Bank v. Rayle, 246 Ga. 727, 731 (273 SE2d 139) (1980).

       The trial court initially held that JWM had abandoned its motion for summary judgment on Slappey’s cross-claim, but the court later reconsidered the issue and granted summary judgment to JWM on the cross-claim.

       The appellants also argue that the trial court erred by not ruling on Slappey’s cross-claim against JWM. However, as previously noted, the record reflects that the trial court did in fact rule on Slappey’s cross-claim by granting summary judgment on that claim in favor of JWM.

       OCGA § 48-4-40 (1980) provides:
      Whenever any real property is sold under or by virtue of an execution issued for the collection of state, county, municipal, or school taxes or for special assessments, the defendant in fi. fa. or any person having any right, title, or interest in or lien upon such property may redeem the property from the sale by the payment of the redemption price or the amount required for redemption, as fixed and provided in Code Section 48-4-42:
      (1) At any time within 12 months from the date of the sale; and
      (2) At any time after the sale until the right to redeem is foreclosed by the giving of the notice provided for in Code Section 48-4-45.
      Although not applicable here, OCGA § 48-4-40 was slightly revised, effective July 1, 2016, to delete the phrase ‘the redemption price or” from the introductory paragraph. See Ga. L. 2016, p. 758, § 1/SB 379; Ga. L. 2016, p. 793, § 1/HB 51.