author: BARNES, Presiding Judge.

text:
    A10A0916.
    WOMACK v. OASIS GOODTIME EMPORIUM I, INC. et al.
    (705 SE2d 199)
   BARNES, Presiding Judge.

Tina L. Womack was a dancer at Oasis Goodtime Emporium I, Inc., an adult entertainment establishment, when a customer assaulted her in a private room. She sued Oasis, contending that it breached its duty to her as an invitee to keep its premises safe, and sued John Doe for assault and false imprisonment. In response to Oasis’s motion for summary judgment, Womack asserted that the attack was foreseeable and would have been prevented if the club had complied with certain DeKalb County ordinances relating to adult entertainment clubs. The trial court granted Oasis’s motion, finding among other things no evidence that Oasis was subject to the county ordinances. Because Womack was not required to submit evidence about issues Oasis never raised, and because genuine issues of material fact exist in this case for a jury to decide, we reverse.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmov-ing party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (1) (405 SE2d 474) (1991). If the defendant points out that no evidence supports an element necessary to the plaintiff s case, then the burden shifts to the nonmoving party to “point to specific evidence giving rise to a triable issue.” Id. But the plaintiff does not bear the burden on summary judgment of introducing evidence to support each essential element in her case unless and until the defendant points to the absence of such an element and the burden shifts. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence, viewing the facts favorably to the respondent. Wachovia Bank v. Moody Bible Inst. of Chicago, 283 Ga. App. 488, 489 (642 SE2d 118) (2007).

In this case, viewed favorably toward Womack as the respondent to the summary judgment motion, the evidence shows that patron John Doe assaulted Womack in one of the club’s unmonitored private rooms. Doe, who was 6'3" and 200 pounds, paid Womack to accompany him to a “VIP room,” which was intended for private conversation and dancing. Doe also paid the VIP bouncer directly for the room rental, and the bouncer placed Doe and Womack in a room at the end of the hall. Another man who was Doe’s associate also hired a dancer, and the couple entered the VIP room with Doe and Womack. Unlike other clubs with windows in their private rooms which were monitored by bouncers, the VIP rooms in Oasis were windowless and the doors were covered with curtains. Further, while the club had surveillance cameras on the main floor, in the dressing room, and inside and outside the front door, there were no cameras in the VIP rooms. The two dancers spent an hour and a half in the room with the two men.

Womack explained that adult entertainment club rules about physical contact were that the dancer was not supposed to touch the customer “within reason,” and the customers were never supposed to touch the dancers, although Oasis did not “crack down” on the rules and allowed customers to touch the dancers on their shoulders or knees. When asked where the club “drew the line,” she replied, “[At] Oasis, unlike a lot of clubs, it takes a lot for them to draw the line there. I don’t see them throw many people out for anything.” For example, some of the dancers performed full contact table dances, sitting on the customers’ laps and straddling them, as did the “shooter girls,” who walked around selling shots to the customers. The dancers were allowed to drink as much as they wanted as long as they could stand.

Womack also testified that at most clubs, if a dancer complained to a bouncer about a customer’s behavior, the customer would normally be banned from the club permanently. While describing how bouncers at another club handled aggressive customers, Wom-ack said the “bouncers patrol their VIP rooms. We have windows and they walk by every five minutes and look into every single room. If they see a guy doing anything, trying to do anything, they handle the situation immediately.” When asked if the bouncers at Oasis normally came into the VIP rooms, Womack responded, “Come in a room, no. They usually check, make sure they don’t hear anything. Oasis is different than a lot of clubs. They have curtains and they don’t have . . . windows [in the private rooms].” People inside the rooms could see shadows from people passing by but people outside the room could not see in.

The VIP rooms were intended for private conversation and dancing, and while sometimes the dancers had more physical contact with the customers than they did on the main floor, the customers were not allowed to “grope” the dancers and the dancers did not “feel[ ] on” the customers. Womack explained that the dancers try to keep the customers interested, “but there’s a line. You can only take it so far before you go over the line. Once you’re at your limit, that’s all you can do.”

Toward the end of the session, Doe “started getting just a little anxious” and asked Womack to “do more,” although he never specified what “more” was. After the waitress appeared briefly to say their time was up, Doe stood as Womack and the other dancer got dressed. Doe asked Womack for some of his money back because she did not do “what he thought [she was] going to do.” She told him she did not give refunds, and he replied, “Bitch, you’re going to give me my money back.” Doe reached for Womack’s garter where she kept her money, and when she reached down to cover it Doe began “yelling and cussing at [her] and just punched [her] in the face.” She slid to the floor with her back to the wall and Doe hit her with both fists five or six times in the face and head, leaving her with a swollen black eye and a swollen bloody nose. She estimated that two seconds passed between the time he demanded his money back and he first hit her, although she was not asked how much time passed between when Doe began getting anxious for her to “do more” and when he began to hit her in the face.

The other dancer slipped past Doe out the door and retrieved the bouncer, who came in while Doe was still hitting Womack and said, “Hey, what’s going on?” He quickly walked Doe and the other man out of the room, and they were never seen again.

Womack did not make a police report that night, although she spoke to the police briefly. Before she did so, the night manager told her the police were at the club but that he had already talked to them and they “didn’t care.... [The police] said, you know,... what would you expect. She’s a stripper or something like that.... And [the manager] told me not to make a police report, that he would call his friend that he knew was a cop and he would come handle everything.” Womack asked the manager what had happened to Doe and the other man, and he replied, “Oh, they ran off.” After Womack talked to the night manager, she talked to the police, who asked if she wanted to make a report. She replied that she did not. When asked at her deposition if the responding police officers had acted “like jerks” when they talked to her that night, she replied that they did not talk much, so she could not say they were jerks, but she could not say they were very sympathetic either. Shortly after she returned to work a few days later, the manager’s police friend came to Oasis and questioned Womack, but apparently made no official report or follow-up.

Oasis argued in its motion for summary judgment and on appeal that it had no duty to prevent an assault motivated by personal malice, and that Womack “admits” the assault against her was unforeseeable because it was so sudden and unexpected it could not have been prevented. Actually, Oasis’s condensation of Womack’s testimony is incomplete. When asked whether the club could have done anything to prevent the attack, Womack said “Well, they’re supposed to check on their VIP rooms for one, every club does.” When asked if Oasis could have prevented Doe from punching her, she said, “That first blow, no, it couldn’t have been prevented. If he was going to punch me the first time,. . . there’s nothing they could have done about that.” As to the other punches, however, when the bouncer came into the room Doe was still on top of Womack, and at that point, he was not physically removed but was “asked kindly to stop and step outside.”

Counsel for Oasis tried to establish at Womack’s deposition that the assault stopped as soon as the bouncer arrived, asking “Once [the bouncer] got in the room, there were no more punches thrown, correct?” She replied, “I was getting punched in the face. I wasn’t looking at the door, so I can’t say that as he was walking in the door. He wasn’t then punching me at the same time, but I know once I noticed [the bouncer] standing there, he quit punching me.”

After the incident, Womack sought unsuccessfully to review the surveillance recordings from the front door to try to recognize her assailant or obtain his license tag number or driver’s license information. In response to an interrogatory about the club’s surveillance system, Oasis denied that the system had not been working that night and denied that the video did not capture an image of Doe. It also said it had no policies to service, inspect, or repair the security system, which was replaced around the time of the assault.

In granting Oasis’s motion for summary judgment, the trial court found that the attack against Womack was not foreseeable. It summarily disposed of Womack’s argument that the club had violated several provisions of the county Code, a certified copy of which Womack had filed with the court, finding that the record contained “no showing that the DeKalb County Code is applicable to Defendant.” In a footnote, the trial court explained that the county Code only applies to property in unincorporated DeKalb, and in this case, while the undisputed evidence showed that the property was located within the county, no evidence established that it was located in unincorporated DeKalb County.

On appeal, Womack argues that the trial court erred in granting summary judgment to Oasis on a ground not raised or contested by the club, and argues that the club is not entitled to summary judgment because the attack was foreseeable based on the club’s county Code violations. Oasis does not respond directly to the contention that it never argued that the county Code is inapplicable or that Womack failed to prove the club is located in unincorporated DeKalb, but instead argues that the trial court did not grant judgment “sua sponte” but properly ruled on whether “Womack had presented sufficient evidence to prevent summary judgment” after “a full and fair opportunity to respond.”

1. Womack argues that the trial court erred in declining to consider whether the evidence presents a genuine issue of material fact regarding the club’s compliance with the county Code. We agree. Womack was not required to show that the club was located in an unincorporated part of the county because Oasis never pointed to an absence of evidence regarding that fact. See Lau’s Corp. v. Haskins, supra, 261 Ga. 491. Oasis admitted its principal offices and agent were located in DeKalb County, and that it was subject to the jurisdiction and venue of the DeKalb County State Court, and denied it was subject to the municipal ordinances of the City of Doraville. In her response to the club’s summary judgment motion, Womack discussed the applicability of the county Code, and in reply Oasis argued only that it was a lawfully established business and that no evidence existed showing that the county considered it a nuisance. Because Oasis did not raise the issue, the burden never shifted to Womack to establish that Oasis was located in unincorporated DeKalb County. Accordingly, the trial court erred in ruling on that basis.

2. Womack also contends that the trial court erred in granting summary judgment to Oasis because the alleged county Code violations constituted negligence per se and established an issue of fact regarding proximate cause and damages. To establish a claim for negligence in Georgia, a plaintiff must show: (1) a legal duty to conform to a standard of conduct raised by law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) loss or damage to plaintiffs legally protected interest. See Snellgrove v. Hyatt Corp., 277 Ga. App. 119, 122 (1) (625 SE2d 517) (2006).

In the typical case of this nature, whether the wrong complained of was foreseeable is a significant issue because if it was not, the defendant had no legal duty to protect the plaintiff from that kind of wrong, and, in general, without previous incidents of a similar nature we have held that the wrong was not foreseeable. As a consequence, without a legal duty there could be no negligence arising from the failure to protect the plaintiff. See, e.g., Drayton v. Kroger Co., 297 Ga. App. 484, 487 (677 SE2d 316) (2009). In this appeal, however, that issue is not significant because the county Code imposed upon Oasis several legal duties to protect Womack. “A statute may create a duty recognized by law requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks, the breach of which constitutes what is sometimes called ‘negligence.’ Prosser & Keeton on Torts, 5th ed., § 30 (1984).” Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 733 (2) (333 SE2d 829) (1985) (plaintiff established negligence per se by showing that medical practitioner who administered anesthesia was not qualified under statute). See also McLain v. Mariner Health Care, 279 Ga. App. 410, 411-412 (2) (631 SE2d 435) (2006) (reversing grant of motion to dismiss negligence per se claim based on alleged violations of nursing home statutes and regulations).

[Generally, negligence per se arises when a statute or ordinance is violated. The violation of certain mandatory regulations may also amount to negligence per se if the regulations impose a legal duty. OCGA § 51-1-6 provides: “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” Assuming that a violation of a statute or mandatory regulation has occurred, before negligence per se can be determined, a trial court must consider (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm the statute was intended to guard against. Finally, if the court finds negligence per se, the plaintiffs must then demonstrate a causal connection between the negligence per se and the injury. And it is generally a jury question as to whether or not such negligence proximately caused the injury.

(Citations and punctuation omitted.) Hubbard v. Dept. of Transp., 256 Ga. App. 342, 349-350 (3) (568 SE2d 559) (2000).

Thus, the questions arise in this case whether the county ordinances were intended to protect Womack, whether the harm she suffered was the harm the statute intended to guard against, and whether Oasis violated the ordinances and was thus guilty of negligence per se. In drafting the ordinances applicable to adult entertainment establishments, the DeKalb County Board of Commissioners recognized the inherent dangers involved in selling alcohol in the presence of unclothed dancers, and established certain mandatory regulations. It took “note of the notorious and self-evident conditions attendant to the commercial exploitation of human sexuality,” and found that adult entertainment establishments “are often associated with criminal behavior.” DeKalb County Code, Art. XII, Sec. 15-400. Thus, the county regulates and licenses adult entertainment establishments to reduce the potential for harm and the occurrence of criminal activity.

For example, the county Code specifically prohibits a club from permitting an employee to appear nude where there is an individual payment offer or solicitation of money between patron and employee. Art. XII, Sec. 15-402 (c). The club may not “suffer or permit the use of any areas on the premises of such establishment for . . . private dancing performance or entertainment,” and the dancers shall not perform on a platform lower than 18 inches or closer than four feet from a patron. Art. XII, Sec. 15-402 (1), (m). It is uncontradicted in the record before us that the club rented out rooms for private dancing performances, permitted the dancers to appear nude when they were paid directly by patrons, and allowed the dancers to perform closer than four feet from the patrons.

Decided October 29, 2010

Reconsideration denied December 10, 2010.

Mayer & Harper, Mark Harper, for appellant.

Hawkins, Parnell, Thackston & Young, Thomas R. Mock, Jr., for appellee.

“[F]or a violation of a statute to be negligence per se, it is sufficient if the violation is capable of having a causal connection with the injury and damage inflicted. [Cit.] It is not essential that the injury inevitably flow from the violation.” Central Anesthesia Assoc. v. Worthy, supra, 254 Ga. at 733 (2), n. 3. Womack falls within the class of persons the law was intended to protect from exploitation and harm, and the club’s county Code violations are “capable of having a causal connection” to Womack’s injuries and damage. This is sufficient to constitute negligence per se.

Negligence per se, however, “supplies only the duty and breach of duty elements of a tort,” and Womack must still prove a causal connection between the breach and her injuries. Central Anesthesia Assoc. v. Worthy, supra, 254 Ga. at 730 (1). Whether or not such negligence proximately caused the injury “is generally a jury question.” Hubbard v. Dept. of Transp., supra, 256 Ga. App. at 350 (3).

Judgment reversed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T. Pope, Jr., concur in judgment only.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A10A1155.
    McREYNOLDS v. KREBS.
    (705 SE2d 214)
   Adams, Judge.

Carmen McReynolds, one of two defendants in a tort action arising out of an automobile accident, appeals the dismissal of her co-defendant, as well as her corresponding cross-claims. The trial court reasoned that the Tort Reform Act of 2005 had eliminated her claims of contribution or set-off and replaced it with a process of apportionment, which did not require the presence of the co-defendant. She also appeals the denial of her motion to enforce a settlement agreement with the plaintiff.

The evidence shows that plaintiff Lisa Krebs was riding as a front-seat passenger in a 2002 General Motors (“GM”) Chevrolet Trailblazer on Interstate 75 when the vehicle was struck by a car being driven by McReynolds. The impact caused the Trailblazer to roll over and land in a ditch, seriously injuring Krebs. Krebs brought suit against McReynolds and GM, alleging that the vehicle’s lack of crash-worthiness contributed to her injuries. McReynolds answered and filed a cross-claim against GM for, among other things, set-off and contribution. McReynolds also moved to enforce an alleged settlement agreement with Krebs, but the trial court eventually denied that motion.

On or about December 22, 2006, GM settled with the plaintiff; the terms included a confidentiality agreement. McReynolds then began a series of efforts to force Krebs and GM to disclose the terms of the settlement, including moving to compel responses to discovery. McReynolds argued consistently that, in the event she was found liable for Krebs’s injuries, she would be entitled to either contribution from GM or set-off in the amount of GM’s settlement.

GM moved to dismiss McReynolds’s cross-claim on the ground that the revisions to OCGA § 51-12-33, made pursuant to the Tort Reform Act of 2005, had abolished joint and several liability in Georgia and that, therefore, McReynolds had failed to state a claim upon which relief could be granted. McReynolds responded and argued that OCGA § 51-12-33 was not applicable because that entire Code section applies only in cases where the plaintiff is to some degree responsible for her own injuries, unlike the present case. McReynolds further argued that even if that Code section abolished joint and several liability, it did not eliminate her right to contribution or set-off under OCGA § 51-12-32.

At the May 2007 hearing on the motion, the topic of deposing Krebs’s experts regarding GM’s potential liability was reused, and the court stated, “In view of the current state of the law, the defendant can present a case as to apportionment. ...” Krebs added that McReynolds might have to hire her own experts in order to present an apportionment claim under OCGA § 51-12-33. The court agreed that McReynolds might need additional time to depose experts regarding GM’s possible liability. Nevertheless, McReynolds continued to assert that she was entitled to set-off and disclosure of the GM settlement amount, or contribution. GM argued that the law now called for apportionment based on a percentage of fault; that its settlement was irrelevant; that set-off and contribution were no longer allowed; and that under apportionment, it was not required to be a party.

Following the hearing, the trial court denied McReynolds’s motion to compel discovery of the settlement amount but extended discovery through August 2007. The court also granted GM’s motion to dismiss on the ground that OCGA §§ 51-12-31 and 51-12-33 abolished joint and several liability and that, therefore, set-off and contribution were not applicable. In January 2009, the parties entered into a consolidated pretrial order. McReynolds continued to rely on set-off or contribution; she did not state a claim for apportionment. She reasserted the allegations in Krebs’s complaint that GM was partially at fault, argued that they were admissions in judicio, and moved to allow them at trial.

At the beginning of the trial, McReynolds admitted she had no evidence regarding GM’s potential liability other than the allegations in Krebs’s complaint. In response to Krebs’s motion, the court refused to allow McReynolds to mention any allegations against GM during trial. The jury found McReynolds liable for Krebs’s injuries and awarded damages in the amount of $1,246,000.42. The court entered judgment against her in the full amount of the jury’s verdict. The court denied McReynolds’s motion for new trial, which raised the same issues outlined above.

1. McReynolds first contends the trial court erred by dismissing her cross-claim against GM and thereby discharging GM from the suit. She argues the trial court erred in its interpretation of OCGA § 51-12-33 and in concluding that she did not have a right of contribution or set-off. “We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.” (Punctuation omitted.) Welch v. Ga. Dept. of Transp., 276 Ga. App. 664 (624 SE2d 177) (2005).

The issue raised in this case arises in part out of the wording of subsections (a) and (b) of OCGA § 51-12-33, which, as modified by the Tort Reform Act of 2005, requires apportionment of damages in certain cases. Subsection (a) states that it applies when the plaintiff “is to some degree responsible,” but subsection (b) does not:

(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. . . .

OCGA § 51-12-33.

Addressing the issue raised by that language, this Court has recently held that under OCGA § 51-12-33, a trier of fact is required to apportion its award of damages among multiple defendants even when the plaintiff bears no fault. Cavalier Convenience v. Sarvis, 305 Ga. App. 141 (699 SE2d 104) (2010). In that case, a person injured in a car accident sued three defendants. Prior to trial, the plaintiff moved to preclude the issue of apportionment from being argued or submitted to the jury. Like McReynolds in this case, the plaintiff in Cavalier argued that the entire Code section only applied when there was an allegation that the plaintiff was at least partially at fault for his or her own injuries. This Court held that the changes made to the Code section under the Tort Reform Act of 2005 showed that the legislature intended to require apportionment even in cases where the plaintiff was not alleged to be at fault. The court also found that OCGA § 51-12-32, which provides a right of contribution, did not require a different result. Rather, its effect was limited by the 2005 amendments which added the words, “[e]xcept as provided in Code Section 51-12-33.” Cavalier, 305 Ga. App. at 145. Following Cavalier, we conclude that apportionment is required in this case even though it is undisputed that Krebs was not at fault.

The remainder of the Code section explains the procedure to be followed for apportionment. Subsections (c) and (d) explain that apportionment is to be determined based on the fault of all parties liable for the plaintiffs injuries regardless of whether they are parties to the suit, including parties who have settled with the plaintiff. Subsections (a), (b) and (f) provide that the trier of fact shall apportion the plaintiffs damages based on the percentage fault of parties and nonparties. Finally, subsection (b) provides that when apportionment is required by the Code section, the defendants have no right of contribution:

(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
(d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

OCGA § 51-12-33 (b). Thus, GM was not required to be a party to the suit after it settled, and McReynolds had no claim of contribution. We also see no basis for set-off given that the statute requires each liable party to pay its own percentage share of fault and McReynolds presented no evidence regarding GM’s alleged fault. See generally Broda v. Dziwura, 286 Ga. 507, 509 (689 SE2d 319) (2010) (“The applicability of a set-off is predicated on the settling party being liable, at least in some part, for the plaintiffs injury.”).

Given that OCGA § 51-12-33 requires apportionment of damages in cases such as this regardless of whether GM is a party, that GM had settled with the plaintiff, and that McReynolds had raised no other valid claim against GM, the trial court did not err by granting GM’s motion to dismiss. But see Murray v. Patel, 304 Ga. App. 253 (696 SE2d 97) (2010) (finding error in the dismissal of a third-party defendant who could be liable for his share of an apportionment of damages under OCGA § 51-12-33).

2. McReynolds contends the trial court erred by ruling that she could not cross-examine Krebs on the difference between her complaint, in which she alleged that GM was partially at fault for her injuries, and her answers to discovery, in which she denied the same allegations. “[T]he admission of evidence is generally committed to the sound discretion of the trial court, ‘whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.’ [Cit.]” Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 457 (2) (543 SE2d 21) (2001).

First, with regard to the complaint, the allegations in the plaintiffs complaint do not amount to evidence of GM’s liability; “opinions and conclusions in the pleadings are not admissions in judicio.” Crosby v. Cooper Tire &c. Co., 240 Ga. App. 857, 867 (7) (b) (524 SE2d 313) (1999), rev’d on separate grounds, Cooper Tire &c. Co. v. Crosby, 273 Ga. 454; Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 172 (2) (390 SE2d 257) (1990). Second, Krebs amended her complaint with the pretrial order wherein she did not allege that GM had liability for her injuries. Cooper Tire, 240 Ga. App. at 867 (7) (a). Third, the fact that McReynolds added those allegations to her own statement of the case in the pretrial order does not authorize their admission as evidence against GM.

McReynolds also wanted to admit the complaint and answers to discovery to show that Krebs had engaged in “conflicting pleading” or had made a “conflicting and inconsistent claim” by initially alleging that GM was responsible but then asserting at trial that McReynolds was solely responsible. But, as shown, the complaint had been amended by the pretrial order and there was no conflict between the pretrial order and the plaintiffs response to the requests to admit. Under these circumstances, we cannot conclude the trial court abused its discretion by refusing to allow introduction of what McReynolds characterized as “plaintiffs conflicting and inconsistent claim.”

3. McReynolds contends, in the alternative, that the trial court should have apportioned damages between her and GM. But despite being given extra time in discovery to pursue the matter, McReynolds admitted at the beginning of trial that she had no evidence to present regarding GM’s liability. And McReynolds rested following the plaintiffs case without presenting any evidence whatsoever. She therefore presented no evidence on which apportionment of liability could be based. And she waived any issue with regard to the verdict form.

4. McReynolds also contends the trial court erred by denying her motion for summary judgment in which she argued that she and Krebs entered into an enforceable settlement agreement.

On appeal from a trial court’s order on a motion to enforce a settlement agreement, we apply a de novo standard of review, viewing the evidence in a light most favorable to the nonmoving party. The movant must demonstrate that the evidence of record is insufficient to create a jury issue on at least one essential element of the dispute.

(Citations and punctuation omitted.) Matrix Financial Svcs. v. Dean, 288 Ga. App. 666 (655 SE2d 290) (2007). See also Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 281 (1) (690 SE2d 225) (2010).

The record shows that Krebs demanded that McReynolds pay the bodily injury limits available under her insurance policy, and the demand specified that it would remain open until September 6, 2005. On September 1, 2005, McReynolds’s insurance carrier Patriot General Insurance Company responded as follows:

This fax will confirm receipt of your letter dated 8/24/05 in which you made a demand for the bodily injury limits available under [the] policy.... Our limits are $25,000/ $50,000 and we agree to settle this matter for the $25,000 per person limit. Please call me in order to discuss how the liens (specifically, but not limited to the $273,435.35 lien from Grady Memorial Hospital) will be resolved as part of this settlement.

On September 27, 2005, the insurance company sent a letter which stated, “This will supplement [our] 9/1/05 response to your policy limit demand of 8/24/05. Patriot General has tendered its full policy limit of $25,000 to Ms. Krebs, subject to liens.” (Emphasis supplied.) This letter does not mention any telephonic or other communications between the parties. The trial court, following Frickey v. Jones, 280 Ga. 573 (630 SE2d 374) (2006), held that the carrier’s September 1, 2005 response was not an unequivocal acceptance of Krebs’s demand because it was conditioned on resolution of liens, including the Grady Hospital lien.

“A settlement agreement must meet the same requirements of formation and enforceability as other contracts. Only when a meeting of the minds exists will an agreement be formed.” (Citation and punctuation omitted.) Greenwald v. Kersh, 275 Ga. App. 724, 726 (621 SE2d 465) (2005). Thus, “[a]n answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort.” (Citations and punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199) (1994).

The case of Frickey presents very similar facts. There, the plaintiff demanded the policy limits from the defendant and required a response within a short amount of time. Jones v. Frickey, 274 Ga. App. 398, 399 (618 SE2d 29) (2005). The defendant’s insurance company responded:

[W]e are willing to tender our full policy limits of $100,000.00. . . . We stand ready to issue payment upon receipt of the fully executed release enclosed. Obviously, payment is complicated by what appears to be a Grady Hospital lien as well as potential liens by (Jones’) health carrier. Please advise me of the status of these liens.

Decided November 23, 2010

Reconsideration denied December 10, 2010

Eason, Kennedy & Crawford, Richard B. Eason, Jr., David S. Crawford, Carlock, Copeland & Stair, David F. Root, Cheryl H. Shaw, for appellant.

Cooper, Jones & Cooper, Lance A. Cooper, King & Spalding, Llalli D. Cohn, Jennifer A. Simon, Lewis S. Fine, Kristin P. Killeen, Patrick A. Dawson, for appellee.

Id. The Supreme Court held that the language in this letter regarding the hospital and other liens “imposed an added condition, not merely to ‘confirm’ the nonexistence of any outstanding liens . . . but to ‘resolve’ the [liens].” Frickey, 280 Ga. at 575.

Patriot General’s letter in this case added the same condition. It required that the liens “be resolved as part of this settlement.” Following Frickey, we hold that the September 1, 2005 letter “constituted a counteroffer and no binding agreement was formed.” Frickey, 280 Ga. at 576.

McReynolds contends the trial court overlooked a September telephone call between the parties and the fact that the September 27 letter memorialized the fact that Krebs accepted her carrier’s “counter-offer” during that telephone call. But we find no such evidence in the record, and we construe the evidence we do have in favor of Krebs.

5. We have reviewed McReynolds’s unenumerated assertions of error and find them to be without merit.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       McReynolds also asserted a claim for subrogation, which she now concedes is inappropriate under the facts of the case.

       These subsections provide as follows:

       Subsection (f) provides as follows:
      (f)(1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.
      (2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

       Similarly, 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 Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).


text:
    A10A1314.
    SHAW v. ROBERTSON et al.
    (705 SE2d 210)
   BARNES, Presiding Judge.

Sharron K. Shaw purchased real property on March 24, 2003, and in September 2004, the property flooded when North Fork Peachtree Creek overflowed during Hurricane Ivan. In September 2008, Shaw sued former property owner Larry Robertson and his son Tony Robertson, along with real estate broker Harry Norman Realty and agents Richard Cohen and Kenneth Covers. Shaw contended that the defendants committed fraud by failing to disclose that the property had flooded previously and was located in a flood zone. Finding that Shaw failed to present evidence that she exercised due diligence before buying the property, the trial court granted summary judgment to all of the defendants. Shaw appeals, and for the reasons that follow, 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. OCGA § 9-11-56 (c). We review a grant of summary judgment de novo, viewing the evidence and all reasonable conclusions and inferences drawn from it, in the light most favorable to the non-movant. Bickerstaff Real Estate Mgmt. v. Hanners, 292 Ga. App. 554, 555 (665 SE2d 705) (2008). In this case, the trial court held that, “as a matter of law, [Shaw] failed to exercise due diligence and is unable to sustain the justifiable reliance prong of her claims for Fraud and Conspiracy to Defraud.”

Considering the evidence in the light most favorable to Shaw as the respondent to the motion for summary judgment, the evidence shows that Shaw spent about 15 minutes at the property before authorizing her real estate agent to make an offer on the house. She did not notice the storm drains in front of the house, although she did notice that the lot across the street was vacant, with only what looked like an entrance left standing. She did not review any tax records or talk to the neighbors, and did not know if the neighborhood had a homeowners’ association. She did not recall having reviewed flood maps of the property on the FEMA website. On her second visit to the property she walked through with the Robertsons’ agent Covers, and then made an offer on the property. She signed a contract on March 1, 2003 to buy the house “as is,” and closed on March 24, 2003 without having the house inspected or having the boundaries surveyed. She was unfamiliar with that area of town, and did not ask if her agent, who was a personal friend, was familiar with the area. She never noticed that the creek was nearby and performed no Internet investigations.

Shaw saw on her settlement statement at the closing that a company had performed a flood survey on the property, for which she was charged $25, but she never saw the survey itself and her lender did not require her to purchase flood hazard insurance. The survey, performed by LandSafe Flood Determination, Inc., indicated that the property was “partially within a Special Flood Hazard Area. The existing structure, however, is not affected and is not in the floodplain. This flood determination is provided to the lender pursuant to the Flood Disaster Protection Act.” Shaw’s settlement statement at closing also included $350 for a property appraisal fee, but she did not see the appraisal itself. The appraisal indicated that the property was located in FEMA Zone X and referenced a FEMA map date and number.

Shaw did not know until after she moved in that the house had a crawlspace, and did not know until after the house flooded that she lived near North Fork Peachtree Creek. After the flood, Shaw’s neighbor told her that part of the property was in a flood plain and that FEMA had purchased the property across the street because it was also in a flood plain. Shaw left the property and never returned, and her lender foreclosed on it in February 2005.

1. Shaw contends that a genuine issue of material fact exists as to whether the defendants committed fraud and conspired to defraud her in the purchase of the property.

Caveat emptor (“Let the buyer beware”) is a common-law doctrine which serves as the general rule with regard to the purchase of realty. The long-standing recognition of the existence of an exception to the application of caveat emptor where the seller’s fraud induced a purchaser of realty to buy the land makes caveat emptor unavailable as a defense to a seller, whether a builder or non-builder, when the seller engages in fraud, whether it be “active fraud” or “passive concealment fraud.”

(Citations and footnotes omitted.) Cendant Mobility Finance Corp. v. Asuamah, 285 Ga. 818, 819-820 (684 SE2d 617) (2009). The elements of fraud include a false representation, scienter, an intention to induce action, justifiable reliance, and damages. Klusack v. Ward, 234 Ga. App. 178, 179 (1) (507 SE2d 1) (1998). “Failure to show, in opposition to summary judgment, some evidence from which each element could be found by a jury allows the action to be disposed of summarily.” Id.

This passive concealment exception to the general rule of caveat emptor, which is the basis of plaintiffs’ claim, is concerned with concealed defects that purchasers in the exercise of due diligence could not detect. It is only when the defects in the property are of a nature that the buyer could not discover them through the exercise of due diligence that any burden is placed on the seller to disclose the seriousness of the problems of which he is aware, provided the seller knows that the buyer is acting under a misapprehension as to the facts which would be important to the buyer in making his decision. Therefore, in order for there to be a valid claim of fraud, the individual allegedly defrauded must be able to present evidence of the exercise of due diligence to discover the fraud.

(Citations omitted.) Smalls v. Blueprint Dev., 230 Ga. App. 556, 557-558 (497 SE2d 54) (1998).

Shaw does not dispute that she never inspected the house herself or hired anyone to inspect it, but argues that these facts do not establish a lack of due diligence because an inspection would not have revealed previous water damage, which had been completely repaired. She also argues that a property inspection would not have disclosed that the property was located in a flood zone, and that even if she had looked at public flood maps, they were “confusing and inconsistent and the property boundaries indiscernible.” Further, she argues, the maps do not show whether the property had sustained previous flooding or water damage. Finally, she contends that she properly relied on the Robertsons’ Disclosure Statement which did not reveal any flooding issues.

The question is not whether the Robertsons failed to disclose a known defect. Assuming they did so (which they dispute), the question is whether Shaw could have discovered that the property was in a flood zone by exercising due diligence. While Shaw argues that even if she had “read every single closing document, which [the defendants] admit almost never happens, she would not have discovered the Property was located in a flood zone,” a review of reasonably accessible public documents would have revealed that the property was located in a flood zone. In fact, in her amended complaint, Shaw included as exhibits copies of a FEMA Flood Map Report showing that the property is located in Flood Zones “AE, 0.2% ANNUAL CHANCE, X,” and a Flood Insurance Rate Map for the area showing both the location of the nearby North Fork Peachtree Creek in relation to the property and the areas designated Flood Zones AE and X, which cover about a third of the street on which the property is located. Finally, a FEMA “Letter of Map Amendment Determination Document” states that portions of the property were located in a Special Flood Hazard Area, although the structure on the property was outside of the area.

While the FEMA maps do not document whether this particular property had been flooded before, they do establish that FEMA determined that the property might flood some time in the future, which is the gravamen of Shaw’s complaint. As she concedes, any previous water damage to the house had been corrected to the point that no one could have detected it, and she purchased the house “as is.” Her complaint is not that the property was damaged from previous flooding, but rather that previous flooding would have given her notice of possible future flooding. The possibility of future flooding is what the FEMA maps show, and the maps are not only public record but were reviewed upon her lender’s direction by a flood certification company and an appraiser before Shaw closed the sale. Because a review of reasonably accessible public documents would have revealed that the property was located in a flood zone, the sellers were under no burden to disclose that fact to Shaw. Smalls v. Blueprint Dev., 230 Ga. App. at 557-558.

Decided November 18, 2010

Reconsideration denied December 10, 2010

Lisa T. Millican, for appellant.

Again, the issue is not whether the defendants failed to disclose facts about the property, but whether Shaw could have discovered the facts by exercising due diligence. The defendants’ actions did not prevent Shaw from exercising her due diligence before she bought the property, which would have revealed that it is in a flood zone.

2. Shaw also argues that her “special relationship” with the seller’s broker and agents lessened her due diligence burden, and that she had no reason to distrust them because the Brokerage Relationships in Real Estate Transactions Act (BRRETA), OCGA § 10-6A-1 et seq., requires that agents and brokers not convey false information during a real estate transaction. BRRETA requires that a broker disclose to all parties any adverse material facts pertaining to the physical condition of the property “actually known by the broker which could not be discovered by a reasonably diligent inspection of the property by the buyer.” OCGA § 10-6A-5 (b) (1). It also requires a broker to disclose

[a] 11 material facts pertaining to existing adverse physical conditions in the immediate neighborhood within one mile of the property which are actually known to the broker and which could not be discovered by the buyer upon a diligent inspection of the neighborhood or through the review of reasonably available governmental regulations, documents, records, maps, and statistics. . . .

OCGA § 10-6A-5 (b) (2). Pretermitting whether the broker in this case knew any adverse facts about the property or immediate neighborhood, reasonably available government documents, records, and maps revealed that the property was in a flood zone. “Because [Shaw] failed to act diligently, [s]he is unable to recover from [the agents or broker] based upon any alleged failure on their part to disclose information.” Peacock v. Kiser, 272 Ga. App. 83, 86 (2) (611 SE2d 747) (2005).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Dickenson Gilroy, Monica K. Gilroy, Tania T. Trumble, James L. K. Creasy III, for appellees.


text:
    A10A1565.
    CARTER v. COUNTRY CLUB OF ROSWELL, INC.
    (705 SE2d 170)
   Adams, Judge.

The trial court granted summary judgment on Earl Carter’s premises liability claim against Country Club of Roswell, Inc. (“CCR”) seeking damages for injuries he sustained when moveable wall panels in CCR’s ballroom fell on him. Carter appeals the summary judgment order, and for the reasons set forth below, we reverse.

In this appeal, we “conduct a de novo review of the evidence to determine whether there exists 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.” (Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). So viewed, the record shows that in 2006, while Carter was working as a day laborer for a temporary staffing agency, he was assigned to work for a company called Acousti. On March 13, 2006, Acousti dispatched Carter and Emerson Westwood, Acousti’s chief technician, to respond to a service call for repair of a moveable wall partition in CCR’s ballroom. This wall is comprised of seven sections of large panels that fold together and can be inserted into storage pockets on each side of the ballroom. One storage pocket holds three sections while the other holds four. When extended, the panels meet in the middle and divide the ballroom in half to accommodate various functions. Wheels, or trolleys, mounted to the top of the panels, roll along a track as the wall is opened and closed, and the panels are attached to these trolleys with pendant bolts. The bottoms of the panels are equipped with retractable drop seals to seal out noise.

Acousti had originally installed the moveable wall for CCR approximately ten years earlier when the facility added a ballroom addition. When Acousti installs these walls, the company routinely provides its customers with brochures and “close-out” documents showing how to maintain them. It was also Acousti’s custom to do a demonstration showing the client how to properly operate the panels and to inform them that the walls needed to be serviced approximately once per year, depending upon the frequency of use. Acousti also offered service contracts, under which the company would service the walls once or twice per year. During this service, Acousti employees would inspect each panel individually, check parts, ensure the trolleys rolled properly and grease the track. CCR did not enter into one of these service contracts, but CCR’s facility manager, William Morgan, often helped set up the wall and take it down, and at those times, he would do a “physical inspection” and request service as needed. CCR had not requested any service visits from Acousti for approximately three years prior to the incident in this case.

In March 2006, Morgan began to notice mechanical trouble retracting and/or extending the drop seals. While doing a visual inspection of the wall, Morgan noticed a bolt that he had never seen before protruding from the top of a panel, about one-half inch between the track and the wall, although he did not know the significance of the protruding bolt. He said he placed a call to Acousti to address these problems.

But according to Danny Montrois, Acousti’s field superintendent, Morgan reported only that the panels were stuck inside the pockets when he called to request service. He never mentioned a loose bolt. Westwood also recalled that when Carter and he arrived at CCR, Morgan told him that a “16-year-old kid” who “didn’t know what he was doing” improperly put the panels away with the drop seals still extended, and the panels were stuck in the pocket. Westwood said that Morgan did not mention that any bolts were loose until after the incident. And the only thing Carter recalled Morgan saying was that someone had put the doors away improperly with the drop seals down.

Westwood explained that Carter and he would not have been able to independently discover the loose bolts or fully inspect the panels before beginning repairs because of the way they were jammed into the pocket. Had Acousti or Westwood been informed of the loose bolts, the repairs would have been approached differently, and Westwood and Carter would not have attempted to move the panels. The job would have been approached as a “rehang job,” not a repair job. Morgan asserts, however, that as he walked Carter and Westwood to the ballroom, he told them about the problems they were having with the drop seal and that he had seen a section of a bolt.

When Westwood and Carter arrived in the ballroom, the panels were still folded away in the side pockets, with the drop seals extended. The panels had to be pulled out in order for the repairs to begin, so Westwood, Morgan and Carter all began pulling the panels from the four-panel pocket. When they had pulled out the panels approximately six inches, a pair of the panels fell over and onto Carter, resulting in extensive injuries. Westwood testified that the panels fell because, over time, the bolts on the panels had worked their way loose from the trolley and were almost ready to come out. This is evidenced by the fact that Morgan saw a bolt sticking up prior to the incident, and after the incident he was able to show Westwood two more sets of panels with loose bolts.

Carter asserts that the trial court erred in granting CCR’s motion for summary judgment because material issues of fact exist as to whether CCR was negligent in failing to regularly inspect and maintain the wall and in failing to warn him of the other issues with the wall, including the loose bolt. Additionally, he asserts that he and Westwood could not have discovered these problems by the exercise of ordinary care prior to beginning work because the panels were jammed into the side pockets through misuse. If Acousti had known about the other issues with the wall, it would have approached the repairs in a different manner.

CCR counters that it did not have superior knowledge of any hazard as Morgan and CCR were unaware of the significance of the loose bolt Morgan had seen. They had no knowledge that loose bolts meant the panels could fall. Rather, CCR relied upon Acousti to diagnose any problems with the doors and to repair them. Additionally, CCR asserts that an exception to premises liability exists for persons brought in to work on a property, who suffer an injury arising from the course of that work. See, e.g., Howell v. Farmers Peanut Market of Sowega, 212 Ga. App. 610, 611 (2) (442 SE2d 904) (1994).

Generally, in a premises liability action against a property owner, “[a]n owner or occupier of land is liable to invitees for injuries caused by his failure to exercise ordinary care in keeping his premises and approaches safe.” Gunter v. Patterson Bank, 247 Ga. App. 555, 557 (544 SE2d 735) (2001). And the “duty of ordinary care that a patron owes to his invitees is the same duty of ordinary care in keeping the premises safe which a master owes to his servant.” (Citations and punctuation omitted.) Strickland v. Howard, 214 Ga. App. 307, 308 (1) (447 SE2d 637) (1994). Thus, the owner has an obligation to keep the premises safe, which

includes a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner and not known to the person injured that a recovery is permitted.

Thomas v. Home Depot, U.S.A., 284 Ga. App. 699, 700 (644 SE2d 538) (2007). Moreover, “[a]n owner/occupier is on constructive notice of what a reasonable inspection would reveal.” (Footnote omitted; emphasis supplied.) Jackson v. Waffle House, 245 Ga. App. 371, 373 (1) (537 SE2d 188) (2000).

“However, an exception to the general rule exists where workers are hired to perform work which makes safe a place known to be dangerous or which in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses.” (Citation omitted.) Batts v. Cracker Barrel Old Country Store, 219 Ga. App. 327, 328 (464 SE2d 829) (1995).

Thus, where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality . . . and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the above-stated general rule is not applicable.

(Citation and punctuation omitted.) Elsberry v. Ivey, 209 Ga. App. 620, 621 (2) (b) (434 SE2d 158) (1993).

CCR relies upon a number of cases in which this Court applied this exception to uphold a judgment for the property owner as a matter of law. In Elsberry v. Ivey, for example, Elsberry was hired to remove a roof from a 100-year-old log house “from the top down.” Elsberry began by removing a layer of asphalt shingles and after three to four hours had worked his way down to the underlying wooden shingles, which slid, causing him to fall. This Court upheld summary judgment in favor of Ivey, the property owner, ruling that Elsberry assumed the risk of working on the roof of an old house and his injury arose from dangers that “ordinarily and naturally exist in doing the work” for which he was employed. Id. at 622 (2) (c). “But this is not all. The servant could not have engaged in the work without knowing and seeing . . . the identical condition which, as grounds of negligence, it is alleged that the master allowed to exist.” (Citation and punctuation omitted.) Id.

This Court applied the same principle in upholding summary judgment for the property owner in Howell v. Farmers Peanut Market. Howell was hired to help replace the engine in a grain elevator. He arrived at the worksite as the new engine was being hoisted into place, and became concerned because the motor was caught in an opening on the roof. He ordered the hoisting to stop because he was concerned that the motor might break free and drop. Howell had the opportunity to inspect any potential dangers and then began to direct the hoisting of the motor when it resumed. This Court affirmed the trial court’s grant of summary judgment under the hired worker exception. Howell, 212 Ga. App. at 611 (2). See also Odister v. Leach, 257 Ga. App. 106, 108 (570 SE2d 391) (2002) (Odister assumed risk of cutting a tree limb with a chain saw while standing on a ladder and injury from falling tree limb where his vantage point on ladder gave him opportunity to assess danger); Batts v. Cracker Barrel, 219 Ga. App. at 328 (Batts assumed risk of working in trench built in old pond bed where trench had caved in five to six times previously and he knew walls were not shored up).

In each of these cases, the plaintiff had the opportunity to observe the situation and to assess the risks for himself. Thus, as applied, the hired worker exception is but another expression of the doctrine of assumption of risk. Long Leaf Indus. v. Mitchell, 252 Ga. App. 343, 344 (1) (556 SE2d 242) (2001) (exception “presupposes that the involved risk is incidental to the work performed and, therefore, known to, and assumed by, the worker”) (footnote omitted). Moreover, the danger in the cited cases arose as a direct result of performing the job for which the plaintiff was hired.

Here, the evidence construed in Carter’s favor supports a jury finding that neither Westwood nor he could have observed the potential danger presented by the loose bolts because the doors were jammed tightly into the side pockets. And a jury could find that an unsupervised and untrained CCR employee improperly stowed the panels, preventing Carter and Westwood from observing the dangerous condition of the panels. Thus jury issues exist as to whether the hired worker exception would apply in this case. If not, the general rules of premises liability apply. And jury issues exist as to whether the loosening of the bolts occurred over the three-year period since Acousti had last been called to service the wall and while CCR had assumed sole responsibility for inspections; whether CCR’s inspections of the wall were reasonable; and whether CCR knew or should have known of a potentially dangerous condition with the wall. Conversely, jury issues also exist as to whether Carter’s experience in working with Acousti also gave him knowledge of the potential danger and whether he failed to exercise ordinary care for his personal safety under the circumstances.

Decided October 13, 2010

Reconsideration denied December 10, 2010

Slappey & Sadd, James N. Sadd, Henry R. DeGive, for appellant.

We find, therefore, that the facts in this case are more akin to those in Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465 (471 SE2d 547) (1996), where the church hired Shropshire to tear down a barn on church property. Despite Shropshire’s warning to the church not to allow any persons in the vicinity, the evidence showed that while Shropshire was on the barn roof, church workers arrived and began haphazardly discarding two-by-fours in the work area. Shropshire asked for the area to be cleaned, but when he descended from the roof, he stepped on a nail protruding from a two-by-four and was injured. This Court determined that material issues of fact remained as to whether the church workers worked and cleaned in a negligent manner and whether Shropshire could have detected the hazard by the exercise of ordinary caution. Id. at 467-468. As the Court noted in Shropshire, “Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law.” (Citation and punctuation omitted.) Id. at 467.

Moreover, we are reminded by the Supreme Court [of Georgia] that the routine issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiffs lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and summary judgment is granted only when the evidence is plain, palpable, and undisputed.

(Footnote omitted.) Gunter, 247 Ga. App. at 555-556. Because the evidence here is not so plain, palpable and undisputed, we reverse the trial court’s grant of summary judgment to CCR.

Judgment reversed.

Smith, P. J., and Mikell, J., concur.

Carlock, Copeland & Stair, Wayne D. McGrew III, Spencer A. Bomar, for appellee.

       Each panel weighs approximately 350 pounds.

       Proper operation of the wall requires that the drop seals on the panels be retracted before the panels are folded away into the pocket. That way, the panels move very easily, but if the drop seals are not retracted the panels are very difficult to move. And the drop seals will often become jammed under the panels as they are tucked away in the side pockets, making them difficult to remove.

       When determining whether an invitee failed to exercise ordinary care for her personal safety, “the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” (Citation and punctuation omitted.) Dumas v. Tripps of North Carolina, 229 Ga. App. 814, 815 (1) (495 SE2d 129) (1997).


text:
    A10A0847.
    A10A0848.
    ROMERO v. THE STATE. TORRES v. THE STATE.
    (705 SE2d 195)
   BARNES, Presiding Judge.

These companion appeals arise from the convictions of co-defendants Armando Angel Romero and Harry Louis Torres for aggravated assault following the denial of their motions for new trials. Both men contend that the trial court erred in denying their motions for directed verdict because the evidence was insufficient. We find no reversible error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that the victim worked as a clerk at a convenience store. On August 22, 2008, two men walked into the store. One of the men asked the victim for cigarettes, and when the victim turned away, the man hit him on his head with a pipe. The two men ran from the store, jumped into a waiting car, and sped away. The victim recalled that the man who attacked him had been in the store approximately one week before the incident, and had become angry because the gas pump was not functioning. The man told the victim that he would “see [the victim] later.”

Several patrons observed the men leaving the store. One witness observed three men standing and talking at the rear of their car, before two of the men went into the store. The third man waited in the car. The witness saw the two men come out of the store “fairly quick[ly]” approximately two minutes later, and one of the men tucked what appeared to be a water pipe in the waistband of his pants. The men jumped in the car and “took off real fast.” He got the tag number of the car before it sped away.

Another witness was stopped at a red light when she saw the victim run out of the store “bleeding from the face” chasing another man who jumped into a green car. The green car pulled out in front of her and she wrote down the tag number. A third witness had just driven into the parking lot of the store when she saw two men run out of the store. The victim followed with “blood dripping all down the front of his shirt.” The men jumped into a car where a third man was waiting in the driver’s seat and drove off in a “big hurry.”

Using the store’s surveillance video and the tag number, police identified Romero as one of the men and obtained an arrest warrant for him. Police tracked the car used in the incident to a Dalton residence, and after obtaining a search warrant recovered three iron pipes from the back seat. Police told the owner of the car that they were looking for Romero. Romero contacted police, and in his interview identified Torres and Daniel Luing as the other men involved in the incident. The men were arrested and charged with aggravated assault “as parties to a crime” for assaulting the victim with a pipe.

Romero and Torres were tried together, and the third co-defendant, Luing, could not be located at the time of the trial. The jury found the men guilty of aggravated assault.

Romero and Torres maintain identical arguments on appeal — the evidence was insufficient to sustain their convictions, and thus the trial court erred in denying their motions for directed verdict. Each argues that the State has merely shown their presence at the scene of the crime.

A defendant is a party to a crime “if he intentionally aids or abets the commission of the crime, or advises, encourages, hires, counsels, or procures another to commit it.” (Footnote omitted.) Stinson v. State, 294 Ga. App. 184, 184-185 (1) (668 SE2d 840) (2008); OCGA § 16-2-20 (b). “Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.” (Punctuation and footnote omitted.) Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006). Further, “(w)here a getaway driver waited for his co-defendant() to return to the car, the driver was also guilty of his co-defendant(’s) crimes.” (Footnote omitted.) Jackson v. State, 274 Ga. App. 279, 281 (617 SE2d 249) (2005).

Johnson v. State, 299 Ga. App. 706, 708 (1) (683 SE2d 659) (2009). However, “driving a criminal perpetrator away from a crime scene with knowledge that he has committed the crime does not, in and of itself, render one guilty as a party to the crime.’’Ratana v. State, 297 Ga. App. 747, 750 (678 SE2d 193) (2009). But

[i]f the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.

(Citation and punctuation omitted.) Head v. State, 261 Ga. App. 185, 187 (1) (582 SE2d 164) (2003). “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6.

Here, during the trial the State presented the video surveillance from the convenience store showing that Romero drove the men to the store, and while he pumped gas the three men stood in the rear of the car talking. Torres then went into the store, and Romero and Luing remained outside. The camera showed Luing doing something near the waistband of his shirt while Romero watched from nearby. After Torres came back from inside the store, the three men talked again and when Romero finished pumping gas, Torres and Luing went into the store together. Romero got into the car, and he left the passenger-side front and back doors open. The video surveillance camera in the store showed that Torres stood nearby when Luing attacked the victim and did not intervene, but waited until the attack was over and ran out of the store with Luing.

In their statements given to police both men denied knowing that Luing was planning to attack the victim when he went into the store. Romero said that he only knew that Luing had previously complained about a clerk at a convenience store who had made disparaging remarks about Mexicans, but that he did not know it was the victim. He also said that he saw Luing with the pipe, but told him not to do anything and that he did not see Luing put the pipe in his pants. Romero told police that he did not know that Luing attacked the victim until the men were back in the car and Luing told him that he “pulled out the pipe and slapped [the victim] twice.”

Torres told police that the men went to the station to get gas, and he entered the store the first time alone to pay for the gas. Torres stated that he knew that Luing had previously conflicted with the victim because the victim told Luing that “you Hispanic people need to learn how to talk our language.” He said that he went into the station the second time with Luing to make sure that the victim did not do anything to harm Luing because the victim had “chased [Luing] with a tool before,” and that he did not know that Luing had the pipe.

Decided October 29, 2010

Reconsiderations denied December 13, 2010

Kelley A. Dial, for appellant (case no. A10A0847).

Kearston M. Gill, for appellant (case no. A10A0848).

T. Joseph Campbell, District Attorney, Elizabeth M. York, Assistant District Attorney, for appellee.

Based on this circumstantial evidence, the jury was entitled to infer that Romero and Torres accompanied Luing to the convenience store knowing that he intended to assault the victim because of their past differences, and that Romero had specifically served as the getaway driver, and that Torres had accompanied Luing inside the store as a lookout making both men parties to the aggravated assault.

As noted before, “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citation omitted.) Head, 261 Ga. App. at 187 (1). See Parnell v. State, 260 Ga. App. 213, 219-220 (6) (581 SE2d 263) (2003) (Where a getaway driver waited for his co-defendants to return to the car, the driver was also guilty of his co-defendants’ crimes.).

Whether circumstances were sufficient in this case to exclude every reasonable hypothesis except that of defendant[s’] guilt was a question for the jury. It is only when the evidence is insupportable as a matter of law that the jury’s verdict may be disturbed, even where the evidence is entirely circumstantial.

(Footnote omitted.) Buruca, 278 Ga. App. at 653 (1).

Accordingly, as the evidence was sufficient, the trial court did not err in refusing to direct a verdict in these cases.

Judgment affirmed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T. Pope, Jr., concur.


author: Miller, Chief Judge.

text:
    A10A1045.
    NOONS v. HOLIDAY HOSPITALITY FRANCHISING, INC.
    (705 SE2d 166)
   Miller, Chief Judge.

Holiday Hospitality Franchising, Inc. (“Holiday Inn”) brought the underlying lawsuit against Thomas S. Noons (“Noons”) and his wife, Jacquelyn S. Noons, on a personal guaranty (the “Guaranty”). The suit sought to recover past due fees, liquidated damages, interest, and attorney fees under a licensing agreement (the “Agreement”) which Holiday Inn entered into with British American Properties (“BAP”), an entity of which Noons was the primary owner, for the operation of a Holiday Inn hotel (the “Hotel”). The trial court granted Holiday Inn’s renewed motion for summary judgment, awarding it past due fees of $132,625.91, interest on the past due fees of $186,619.65, liquidated damages of $741,713.08, prejudgment interest on the liquidated damages of $255,272.92, and attorney fees of $131,623.16. On appeal, Noons challenges summary judgment for Holiday Inn and against him, contending that the trial court erred: (i) in estopping him from arguing discharge of his obligations under the Guaranty under OCGA § 10-7-20; (ii) in concluding that the liquidated damages provision in the Agreement was enforceable; and (iii) in awarding Holiday Inn interest on interest as to the past due fees element of the award. Discerning error only with respect to the trial court’s award of interest on interest, we affirm in part and reverse in part.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Our review is de novo.

(Citations, punctuation and footnotes omitted.) The Governor’s Towne Club v. Caffrey Constr. Co., 273 Ga. App. 284 (614 SE2d 892) (2005).

So viewed, the evidence shows that after Holiday Inn filed its lawsuit against Noons and his wife as guarantors, Noons executed an affidavit in which he averred that his wife had neither signed the Guaranty nor been aware of it. Given the foregoing, Holiday Inn amended its complaint to add a claim of fraud, dismissed Jacquelyn Noons from its suit with prejudice, and filed its initial motion for summary judgment, which motion the trial court denied finding that jury questions remained as to the amount of damages claimed by Holiday Inn.

Subsequently scheduled for trial, the case was dismissed after voir dire began because Noons had spoken with several members of the jury panel. Once the prospective jurors were dismissed, Holiday Inn orally renewed its motion for summary judgment and dismissed its fraud and punitive damages claims in exchange for Noons’ stipulation as to liability. In stipulating to liability, however, Noons disputed Holiday Inn’s calculation of damages and argued that the liquidated damages provision of the Agreement was unenforceable, and that OCGA § 10-7-20 foreclosed any recovery against him since Holiday Inn dismissed his wife as a party to the litigation. The trial court entered its grant of summary judgment for Holiday Inn thereafter. Noons’ appeal followed.

1. Noons contends that the trial court erred in estopping him from arguing discharge of his obligations under the Guaranty based upon Holiday Inn’s release of his wife as co-guarantor. See OCGA § 10-7-20 (“[T]he release of . . . one surety shall discharge a co-surety.”); see also OCGA § 10-7-21 (“Any change in the nature or terms of a contract. . . without the consent of the surety, discharges him.”). We disagree.

To establish equitable estoppel, Holiday Inn was required to show:

First, a false representation or concealment of facts; second, it must be within the knowledge of the party making the one or concealing the other; third, the person affected thereby must be ignorant of the truth; fourth, the person seeking to influence the conduct of the other must act intentionally for that purpose; and, fifth, persons complaining shall have been induced to act by reason of such conduct of the other.

(Citation, punctuation and footnote omitted.) Kim v. Park, 277 Ga. App. 295, 296 (626 SE2d 232) (2006).

Here, even assuming arguendo that his wife signed the Guaranty, the trial court properly ruled that Noons was estopped from arguing that she did so as his co-guarantor without his consent discharging him from his obligations under the Guaranty. Noons signed an affidavit in which he swore that he forged his wife’s signature and later deposed that he did so to “help her get out of this lawsuit.” If untrue, the five elements demonstrating estoppel are plainly established: (i) Noons falsely represented that he forged his wife’s signature on the Guaranty; (ii) Noons admitted that he did so knowingly; (iii) Nothing of record suggests that Holiday Inn had any reason to believe that Noons’ affidavit was untruthful; (iv) Noons deposed that his deceit was intended to influence Holiday Inn’s conduct; and (v) Holiday Inn’s dismissal of Noons’ wife from its lawsuit shows that Noons’ false affidavit prompted such action.

2. Noons also claims that the trial court erred in concluding that the liquidated damages provision in the Agreement was enforceable. Again, we disagree.

“If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.” OCGA § 13-6-7; see also Turner v. Atlanta Girls’ School, 288 Ga. App. 115, 116 (653 SE2d 380) (2007).

We will enforce a liquidated damages clause if (1) the injury caused by the breach is difficult or impossible to estimate accurately, (2) the parties intended to provide for damages rather than a penalty, and (3) the stipulated sum is a reasonable estimate of the probable loss. The burden is on the party who defaults on the contract — in this case [Noons] — to prove that a liquidated damages clause is unenforceable.

(Citation, punctuation and footnote omitted.) Antonios v. Gwinnett Clinic, 294 Ga. App. 101, 102-103 (1) (668 SE2d 531) (2008).

The first two factors determinative of unenforceability — difficulty of injury estimation and the parties’ intent — are not in dispute in this case. Noons argues only that the amount of liquidated damages is unreasonable because there is no evidence in the record of a pre-estimate of probable lost revenue to Holiday Inn before the Agreement was entered into as to a breach thereof by premature termination. Further, Noons challenges the liquidated damages provision as providing for 36 months of revenue without regard to the term of the Agreement remaining as less than 36 months.

As to the first of Noons’ arguments, Holiday Inn presented evidence that the liquidated damages clause at issue is directly related to the past performance of the Hotel by using a percentage of gross room revenue generated by the Hotel in the thirty-six-month period prior to termination, including approximately six months in which the Hotel had failed to meet Holiday Inn performance standards under the prior franchisee. Noons presented no evidence indicating that Holiday Inn’s pre-estimate of its damages in the event of early termination was unfair in light of Holiday Inn’s experience in finding a new franchisee and opening a new Holiday Inn facility.

Inasmuch as the liquidated damages provision at issue was crafted on the basis of the past performance of the Hotel, as above, fees due in the term of the Agreement remaining following early termination is not of material consequence. Nor is the effect of early termination with less than 36 months remaining here at issue because Holiday Inn terminated the Agreement in 2004, two years into its ten-year term. The second argument Noons makes is therefore also unavailing.

Decided September 30, 2010

Reconsideration denied December 13, 2010

Steven W. Hardy, for appellant.

Fried & Bonder, Scott L. Bonder, for appellee.

“The issue of whether a provision constitutes liquidated damages rather than a penalty is an issue of law. [Cit.]” Nat. Emergency Svcs. v. Wetherby, 217 Ga. App. 42, 44 (456 SE2d 639) (1995). Given the foregoing, we conclude that the trial court did not err in finding the liquidated damages provision in the Agreement to be a reasonable pre-estimate of its probable loss upon early termination.

3. Finally, Noons contends that the tried court erred in awarding Holiday Inn interest on interest as to the past due fees element of the award pursuant to OCGA § 7-4-16. On this, we agree.

Citing OCGA § 7-4-16 below, as it does on appeal, Holiday Inn argues that the trial court was authorized to calculate interest on its award of past due fees “by adding 1.5% of the debt to the principal each month[,]” this because the Agreement provides that all past due fees bear interest at 1.5% per month. Noons correctly asserts, however, that the method of calculation authorized by OCGA § 7-4-16 is applicable to actions on open account, not for breach of contract. Where, as here, the claim is for breach of contract, OCGA § 7-4-16 does not apply. Schoenbaum Ltd. Co. v. Lenox Pines, 262 Ga. App. 457, 461 (2) (c) (585 SE2d 643) (2003). Holiday Inn’s entitlement to an award of interest on past due fees is therefore a matter governed by the contract at issue, here “[1.5%] per month or the maximum interest permitted by applicable law, whichever is less.”

The accuracy of the trial court’s award of past due fees in the amount of $132,625.91 is undisputed. There also is no dispute that interest on past due fees was owed for a period of 59 months. The maximum allowable interest on past due fees owed in this case under the Agreement is therefore $117,373.92 ($132,625.91 x .015 x 59 = $117,373.92). Accordingly, the trial court’s award of interest on past due fees of $186,619.65 is reversed to the extent it exceeds the amount authorized by law.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Johnson, J., concur.

       “Georgia law does not distinguish between contracts for surety and contracts for guaranty.” Thomas-Sears v. Morris, 278 Ga. App. 152, 154 (1), n. 1 (628 SE2d 241) (2006).


text:
    A10A1439.
    ADVENTURE OUTDOORS, INC. et al. v. BLOOMBERG et al.
    (705 SE2d 241)
   BARNES, Presiding Judge.

Adventure Outdoors, Inc., a Georgia business that sells firearms, appeals the dismissal of its slander complaint against New York City Mayor Michael Bloomberg, The Nooner Investigative Group, Tanya Marie Nooner, Melissa Merced, Joseph Tounsel, The James Mintz Group, James Mintz, Michael Cardozo, John Feinblatt, and Raymond Kelly. The trial court dismissed the suit because Adventure Outdoors failed to submit the affidavit required by OCGA § 9-11-11.1, the Georgia Anti-Strategic Lawsuit Against Public Participation (“anti-SLAPP”) Statute.

The trial court found that the statements in the complaint were made by officials in the context of providing information to the public about a public nuisance lawsuit filed by the City of New York against a number of gun dealers, including Adventure Outdoors. The court further found that the acts by the defendants alleged in Adventure Outdoors’ complaint could “reasonably be construed as an act in furtherance of the right to free speech or the right to petition the government for redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern.” Finally, the court found that Adventure Outdoors had failed to submit the verification required by OCGA § 9-11-11.1 (b) even though this failure had been repeatedly called to its attention. Therefore, the trial court dismissed the action because of Adventure Outdoors’ failure to comply with the anti-SLAPP statute.

Adventure Outdoors contends the trial court erred by finding that citizens of another state were entitled to the protection of the Georgia anti-SLAPP statute, and erred by finding that the New York defendants were arguably acting in furtherance of the right of free speech. Adventure Outdoors further contends the trial court erred by failing to consider whether the words used by the New York defendants were said in good faith and met the “fair and honest” requirements of OCGA § 51-5-7 (4) and (6), defining privileged communications not subject to slander claims. We disagree and affirm the trial court.

In May 2006, in what it termed an effort to curb the “serious problem of gun violence caused by the flow of illegal guns into the City,” the City filed suit in the Eastern District of New York against 15 gun dealers, including Adventure Outdoors, Inc. In its complaint the City alleged that the dealers created a dangerous public nuisance in the City by engaging in illegal sales practices that resulted in arming criminals there and sought injunctive relief to correct the problem. The New York defendants then held a press conference, the purpose of which was purportedly “to inform and educate the citizens of New York about the litigation, the nature of illegal gun trafficking, and the City’s efforts to address the problem.” The City’s press release listed the 15 gun dealers; according to Adventure Outdoors, at the press conference the mayor, the criminal justice coordinator, and the chief of police said that most of the illegal guns used to commit crimes in New York City were sold by “rogue gun dealers” who refused to obey federal laws, that the City caught them breaking federal laws regulating gun sales, that they were “bad apples” who routinely ignored federal regulations, and that the dealers were reckless, careless, and “had blood on their hands.” The press conference was covered by print and electronic media and broadcast all over the country, including Georgia.

After the press conference, Adventure Outdoors filed this slander action, and after removal to federal court, remand to the trial court, two dismissals, and two refilings, the trial court granted the New York defendants’ motion to dismiss this third complaint due to Adventure Outdoors’ failure to file an anti-SLAPP affidavit.

The relevant sections of OCGA § 9-11-11.1 provide:

(a) The General Assembly of Georgia finds and declares that it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances. The General Assembly of Georgia further finds and declares that the valid exercise of the constitutional rights of freedom of speech and the right to petition government for a redress of grievances should not be chilled through abuse of the judicial process.
(b) For any claim asserted against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, both the party asserting the claim and the party’s attorney of record, if any, shall be required to file, contemporaneously with the pleading containing the claim, a written verification under oath as set forth in Code Section 9-10-113. Such written verification shall certify that the party and his or her attorney of record, if any, have read the claim; that to the best of their knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7 [providing that statements made in good faith regarding issues of public concern as defined in OCGA § 9-11-11.1 are not subject to libel or slander claims]; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation. If the claim is not verified as required by this subsection, it shall be stricken unless it is verified within ten days after the omission is called to the attention of the party asserting the claim. . . .
(e) Nothing in this Code section shall affect or preclude the right of any party to any recovery otherwise authorized by common law, statute, law, or rule.

1. Adventure Outdoors contends that in dismissing its complaint the trial court failed to properly assess the litigation’s merits under the anti-SLAPP statute, because OCGA § 9-11-11.1 (a) limits the statute’s protection only to citizens of Georgia. “The interpretation of a statute is a question of law, which is reviewed de novo on appeal.” (Punctuation omitted.) Joe Ray Bonding Co. v. State of Ga., 284 Ga. App. 687, 688 (644 SE2d 501) (2007). The Supreme Court of Georgia has summarized the guidelines for statutory interpretation:

In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and “the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

(Citations and punctuation omitted.) Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999). Further, a statute should be read according to the natural and most obvious import of its language without resorting to subtle and forced constructions to limit or extend its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (1) (391 SE2d 5) (1990). One of the cardinal rules of statutory construction, however, requires the courts to “consider the consequences of any proposed interpretation and not construe the statute to reach an unreasonable result unintended by the legislature. [Cit.]” Trust Co. Bank v. Ga. Superior Court Clerks’ Coop. Auth., 265 Ga. 390 (1) (456 SE2d 571) (1995).

Thus, the initial question is whether OCGA § 9-11-11.1 (a) (“it is in the public interest to encourage participation by the citizens of Georgia in matters of public significance”) encompasses a press conference held outside the territorial limits of Georgia by individuals who are not citizens of this State. Pretermitting whether language in subsection (a) is merely part of the preamble of the statute and thus could not limit “the plain meaning of the body of the act,” Bentley v. State Bd. of Med. Examiners, 152 Ga. 836, 839 (111 SE 379) (1922), we find that considering the text of the statute, the legislature’s purpose in enacting it, and the “evil” the anti-SLAPP was designed to correct, the New York defendants are entitled to the protection of OCGA § 9-11-11.1.

Although the General Assembly obviously intended to protect Georgia citizens in enacting the statute, nothing in OCGA § 9-11-11.1 (a) limits the scope of the statute only to citizens of Georgia. Subsection (a) merely states that it is in the public’s interest to encourage Georgia citizens to participate in matters of public significance by exercising their rights to free speech and to petition the government. It contains no words of limitation, and, while designed to encourage participation by Georgia citizens, it does not state that citizens of other states cannot receive the benefits of the anti-SLAPP statute if it otherwise applies. Moreover, subsection (b) of OCGA § 9-11-11.1 states that the statute applies to “a person or entity” being sued and contains no limitation on citizenship. The intent of the anti-SLAPP statute is to encourage the exercise of constitutionally protected free speech. Denton v. Browns Mill Dev. Co., 275 Ga. 2, 6 (561 SE2d 431) (2002). Accordingly, we find that the trial court did not err by holding that the New York defendants were entitled to rely upon OCGA § 9-11-11.1.

Although in Metzler v. Rowell, 248 Ga. App. 596, 597 (1) (547 SE2d 311) (2001), this court stated that the anti-SLAPP statute was “intended to protect Georgia citizens who participate in ‘matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances’ from ‘abuse of the judicial process,’ ” that statement was not a holding in the case. Consequently, it is “not to be considered as having been so decided as to constitute precedents.” (Citation and punctuation omitted.) Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (114 SE2d 529) (1960).

2. Next, we must consider whether the press conference itself falls within the scope of OCGA § 9-11-11.1 (c):

As used in this Code section, “act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern” includes any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

(Emphasis supplied.) In measuring the breadth of conduct protected by the statute, we note that this court has previously held that OCGA § 9-11-11.1 creates an “expansive definition” of protected speech, which includes “any statement made to any official proceeding authorized by law; or any statement made in connection with an issue under consideration by any official proceeding.” (Punctuation omitted; emphasis in original.) Metzler, 248 Ga. App. at 598 (1). The anti-SLAPP statute operates to protect a person from lawsuits that are initiated in response to such protected statements. To prevent such abuse, the statute requires that any claim that could “reasonably be construed as infringing upon these rights must be accompanied by a detailed verification and provides for a motion to dismiss and hearing on this issue. OCGA § 9-11-11.1 (b).” Id. at 597-598 (1).

As the press conference was held to address an issue under consideration by a judicial body, i.e., the lawsuit recently filed in federal court in New York, Adventure Outdoors was required to file a verification under OCGA § 9-11-11.1 (b). As Adventure Outdoors refused to file such a verification, the trial court did not err by dismissing its complaint. Hawks v. Hinely, 252 Ga. App. 510, 515 (1) (c) (556 SE2d 547) (2001); Metzler, 248 Ga. App. at 598, 600.

Decided November 24, 2010

Reconsideration denied December 13, 2010

Robert L. Barr, Jr., Edwin Marger, for appellants.

Dow & Lohnes, Peter C. Canfield, Marcia B. Stadeker, Parker, Hudson, Rainer & Dobbs, Jared C. Miller, for appellees.

Adventure Outdoors argues that it was entitled to challenge whether the merit of the statements made during the press conference entitled the New York defendants to the protections of the anti-SLAPP statute. In this case, however, the trial court was not required to consider the merit of the statements made by defendants because Adventure Outdoors and its attorney refused to file a verification certifying the merits of the claim. Absent such a verification, dismissal was proper.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       Nooner, Merced, and Tounsel were Georgia residents associated with the Nooner Investigative Group of private detectives.

       Apparently another group of private detectives.

       The City’s Corporate Counsel.

       The City’s Criminal Justice Coordinator.

       The City’s Chief of Police.