author: McFadden, Judge.

text:
    A11A1487.
    THE ESTATE OF MACK PITTS et al. v. CITY OF ATLANTA et al.
    (746 SE2d 698)
   McFadden, Judge.

This case returns to us from the Supreme Court of Georgia. It is an appeal from the trial court’s rulings on cross-motions for summary judgment in a case brought by the estate and the minor children of Mack Pitts (collectively, “the Estate”) against the City of Atlanta (“the City”) and against two joint ventures (“the construction companies”) — one comprised of Holder Construction Company, Manhattan Construction Company, C. D. Moody Construction Company, Inc., and Hunt Construction Company, Inc. (“the General Contractor”) and the other comprised of Archer Western Contractors, Ltd. and Capital Contracting, Inc. (“the Subcontractor”). The Estate alleged that Pitts, who was killed in an accident while working on the construction of the international terminal at Atlanta’s Hartsfield-Jackson International Airport, was an intended beneficiary of promises within contracts among the City, the General Contractor, and several tiers of subcontractors (including the defendant Subcontractor), requiring the contractors and subcontractors to obtain certain levels of automobile liability insurance coverage and to require their subcontractors to do the same. The Estate alleged that the defendants had breached these promises. It also alleged that the City had breached a separate duty to ensure that all contractors and subcontractors maintained the required insurance.

The trial court granted the defendants’ motions for summary judgment and denied the Estate’s motion for summary judgment. In The Estate of Mack Pitts v. City of Atlanta, 312 Ga. App. 599 (719 SE2d 7) (2011) (“Pitts I”), we affirmed in part and reversed in part, finding that the Estate was entitled to summary judgment on its contract claims against all of the defendants, but that the City was entitled to summary judgment on the claim for breach of the separate duty. In Archer Western Contractors v. Estate of Mack Pitts, 292 Ga. 219 (735 SE2d 772) (2012) (“Pitts II”), the Supreme Court vacated our judgment and remanded the case to us with direction. We therefore vacate our earlier decision.

The Estate argued in Pitts I that the trial court erred in its grant of summary judgment to the City on its claim for breach of a separate duty, independent of contract. We affirmed the trial court on the ground that no evidence of such a duty existed. Pitts I, 312 Ga. App. at 609 (2). The Supreme Court did not address this portion of our opinion. Pitts II, 292 Ga. at 219, n. 1.

The Estate also claimed that the City had breached a contractual duty for which Pitts was an intended third-party beneficiary. We held that the Estate was entitled to summary judgment on this claim. Pitts I, 312 Ga. App. at 602 (1). The Supreme Court, however, found no evidence of breach of any contractual duty by the City, effectively reversing our holding. Pitts II, 292 Ga. at 228-230 (3).

Finally, the Estate claimed that the construction companies had breached a contractual duty for which Pitts was an intended third-party beneficiary. We held that it was entitled to summary judgment on this claim. In so holding, we determined that contract language — specifically the term “all participants” — unambiguously included a worker such as Pitts among the intended beneficiaries of the minimum automobile liability coverage requirement. Pitts I, 312 Ga. App. at 603-604 (1) (a) (i). The Supreme Court disagreed, instead finding the term “all participants” to be susceptible of more than one reasonable meaning. Pitts II, 292 Ga. at 225-226 (2). Having determined that “all participants” is ambiguous as used in the subject contracts, the Supreme Court remanded the case to us with instructions. We are to determine whether that ambiguity can be resolved as a matter of law. We proceed accordingly.

As to the City, we again affirm the trial court’s grant of summary judgment on the claim for breach of a duty independent of the contracts. We also affirm the trial court’s grant of summary judgment to the City and its denial of summary judgment to the Estate on the Estate’s claim for breach of contract against the City.

As to the construction companies, however, after having applied the rules and canons of contract construction and considered parol evidence, we remain convinced that the parties to the contract intended a worker such as Pitts to be a third-party beneficiary of the promises made by the construction companies to obtain the required minimum automobile liability insurance coverage and to ensure that their subcontractors of all tiers did so as well. We again find that the undisputed evidence shows that these promises were breached, that the Estate was harmed thereby, and that the exclusive remedy provisions of the Workers’ Compensation Act do not apply. Accordingly, we again reverse both the trial court’s grant of summary judgment to the construction companies and its denial of summary judgment to the Estate.

1. Facts and procedural posture.

The facts and procedural posture of this case are set forth in detail in Pitts I, 312 Ga. App. at 599-602, and Pitts II, 292 Ga. at 220-223 (1). In summary, Mack Pitts was killed when he was struck by a truck driven by an employee of A&G Trucking, Inc. while Pitts was working on the construction of the international terminal at Hartsfield-Jackson International Airport. The Estate won a wrongful death judgment against A&G Trucking, which could not satisfy that judgment. The Estate then brought the instant action against the City, alleging breach of contract and breach of ministerial duty, and against the construction companies, alleging breach of contract.

Specifically regarding the breach of contract claim, the Estate alleged that the construction companies were required by contract to purchase and maintain automobile liability insurance with bodily injury coverage of at least $ 10,000,000 per person and occurrence and to bind lower tier subcontractors to this minimum coverage requirement. See generally Pitts II, 292 Ga. at 220-223 (1) (describing contractual provisions); Pitts I, 312 Ga. App. at 601-602 (same). The minimum coverage requirement was set out in a 15-page document, entitled “Owner’s Controlled Insurance Policy,” which was an addendum to the City’s contract with the General Contractor. See Pitts II, 292 Ga. at 222 (1). In its opinion, the Supreme Court termed this 15-page document the “OCIP addendum,” see id., and we adopt that terminology for this opinion.

In the contract between the City and the General Contractor, the General Contractor agreed to abide by the minimum coverage requirements in the OCIP addendum, and to require its subcontractors to do the same. See Pitts II, 292 Ga. at 223 (1). In a subcontract between the General Contractor and the defendant Subcontractor, the Subcontractor also agreed to be bound by these terms and to require the same of its lower-tier subcontractors. See Pitts I, 312 Ga. App. at 601-602. In Pitts I, we held that A&G Trucking was such a lower-tier subcontractor and was subject to the minimum coverage requirement, id. at 602-603 (l), and the Supreme Court has not held otherwise. A&G Trucking did not carry automobile liability insurance satisfying the minimum coverage requirement set forth in the OCIP addendum.

2. Action for breach of duty against the City.

In Division 2 of our decision in Pitts I, we affirmed the trial court’s grant of summary judgment to the City on the Estate’s claim against it for breach of a duty that the Estate argued arose independently of the contracts; the Estate cited OCGA § 51-1-8 for the source of this duty. Pitts I, 312 Ga. App. at 608-609 (2). The Supreme Court neither addressed nor considered this portion of our opinion, instead noting that this separate claim of the Estate “is not before us, and we, therefore, say nothing more about it.” Pitts II, 292 Ga. at 219, n. 1. Accordingly, our ruling in Division 2 was not disturbed by the Supreme Court and remains the law of the case. Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001); Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730, 731 (514 SE2d 201) (1999); Mayor & Aldermen of the City of Savannah v. Batson-Cook Co., 318 Ga. App. 152, 154 (734 SE2d 743) (2012). We again affirm the grant of summary judgment to the City on the separate claim of breach of a private duty.

3. Action for breach of contract against the City.

The Supreme Court held that neither the contract between the City and the General Contractor, nor the OCIP addendum incorporated therein, contained a “promise by the City to ensure that subcontractors carried adequate insurance.” Pitts II, 292 Ga. at 229 (3). The Supreme Court further held that,

[t]o the extent that the Court of Appeals concluded that the City failed to fulfill these obligations [to maintain the required and necessary OCIP policies and to procure, pay for and administer the OCIP] with respect to automobile liability insurance for A&G Trucking, it erred.

Id. We adopt these rulings as our own and find no contractual duty on the part of the City to ensure that A&G Trucking carried the amount of automobile liability coverage required by the OCIP addendum. Accordingly, we affirm the trial court’s grant of summary judgment to the City on the Estate’s claim for breach of contract.

4. Breach of contract claim against the construction companies.

The parties dispute whether Mack Pitts was an intended third-party beneficiary of the contract requirement regarding minimum automobile liability insurance coverage and, if so, whether the exclusive remedy provision of the Workers’ Compensation Act bars the Estate’s breach of contract action against the construction companies. We held in Pitts I that Pitts was an intended third-party beneficiary under the unambiguous contract language, 312 Ga. App. at 603-605 (1) (a) (i), and we held that the exclusive remedy provision did not bar the Estate’s claim. Id. at 605-607 (1) (a) (ii). The Supreme Court disagreed with our analysis regarding Pitts’s status as a third-party beneficiary, and it vacated our judgment and remanded the case to us for reconsideration. Pitts II, 292 Ga. at 230 (4). The Supreme Court did not reach the exclusive remedy question. Id. at 230 (4), n. 17.

As our Supreme Court recently has reiterated, contract construction proceeds in a series of steps, moving from one to the next only if necessary.

[T]he construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. Because the first two of these steps involve questions of law, the trial court’s application of them is reviewed de novo on appeal.

City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 30 (3) (743 SE2d 381) (2013) (citations omitted).

Citing a dictionary definition, we held that “participant” is an “ordinary word” and therefore should be given its “usual significance,” that its usual significance is as a general term broad enough to encompass Pitts, and therefore that the disputed provision is unambiguous, and that it was unnecessary to proceed beyond the first step. See Pitts I, 312 Ga. App. at 603-604 (1) (a) (i) (citing Perkins v. M&M Office Holdings, 303 Ga. App. 770, 773 (695 SE2d 82) (2010); Webster’s New Collegiate Dictionary, p. 829 (1981)). See generally Blueshift, Inc. v. Advanced Computing Technologies, 273 Ga. App. 802, 805 (2) (616 SE2d 816) (2005) (court may not look to statutory rules of contract construction or consider parol evidence if it finds contract is unambiguous on its face).

On further reflection, and aided by the subsequent publication of Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (West 2012), we conclude that our earlier analysis is better stated as a determination that, while some ambiguity was created by the drafters’ failure to set out a definition for “participants,” that ambiguity is resolved by the application of what Scalia and Garner call the “General-Terms Canon”:

Without some indication to the contrary, general words (like all words, general or not) are to be accorded their full and fair scope. They are not to be arbitrarily limited. This is the general-terms canon, which is based on the reality that it is possible and useful to formulate categories (e.g., “dangerous weapons”) without knowing all the items that may fit — or may later, once invented, come to fit •— within those categories.
Some think that when courts confront generally worded provisions, they should infer exceptions for situations that the drafters never contemplated and did not intend their general language to resolve. These people want courts to approach general words differently from how they approach words that are narrow and specific. Traditional principles of interpretation reject this distinction because the presumed point of using general words is to produce general coverage — not to leave room for courts to recognize ad hoc exceptions. It is true that literal meaning is more readily discernible when the provisions are concrete and specific than when they are abstract and general, and one is right to hesitate and ponder before deciding that a specific factual situation falls within the coverage of a general provision. But in the end, general words are general words, and they must be given general effect.

Id. at 101.

Of course, “[n]o canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions.” Scalia and Garner, supra, at 59. And our Supreme Court has held that the relevant contract language is subject to more than one reasonable construction. See Pitts II, 292 Ga. at 224-226 (2). Ambiguity exists when “more than one reasonable construction may be placed upon the language of an agreement.” In re Estate of Sims, 259 Ga. App. 786, 790 (1) (578 SE2d 498) (2003). The Supreme Court remanded the case for us to proceed with the next steps of contract construction to attempt to resolve the ambiguity.

(a) Structure and content of the OCIP addendum.

The OCIP addendum contains the minimum automobile liability coverage requirement that A&G Trucking did not meet. As stated above, the OCIP addendum is a 15-page document entitled “Owner’s Controlled Insurance Program,” which was incorporated into the contracts at issue in this case. The six parts of the OCIP addendum, detailed below, include a summary section (Part 1), a section setting forth the insurance coverage to be provided by the “Owner,” which is the City (Part 3), and a section setting forth the insurance coverage to be provided by contractors (Part 5).

Part 1, entitled “Summary,” contains the disputed use of “all participants.” In its entirety it states:

A. Insurance:
1. Notwithstanding anything to the contrary, in the agreement to which this Appendix [the OCIP addendum] is attached or in any other agreement between Contractor, Owner and/or Architect, Construction Manager, General Engineering Consultant, or their respective Subconsultants, Subcontractors, Agents, Employees or Representatives, the parties hereto agree as follows:
2. The Owner will employ an “Owner Controlled Insurance Program,” (OCIP) for this project for all activities performed on Airport property. The purpose of the OCIP is to provide one master insurance program that provides broad, coverages with high limits that will benefit all participants involved in the project. The Owner, if electing the OCIP, shall procure, pay for and administer the OCIP during the duration of the program. The program will include the following coverages:
□ Worker’s Compensation
□ Commercial General Liability
□ Excess/Umbrella Liability
□ Contractors Pollution Liability
□ Builders Risk
□ Professional Liability
B. The Named Insured shall include the Owner, Contractors and Subcontractors of any tier (excluding suppliers) for whom the Owner has agreed to furnish an OCIP.
C. Coverage shall be limited to the project site.

(Emphasis supplied.)

Part 2 of the OCIP addendum, entitled “Evidence of Insurance Cost,” provides a sample construction insurance information form to be used by contractors in submitting a bid, sets forth other information and instructions to be used by contractors in submitting bids, and provides for a contractor warranty regarding the information submitted in a bid.

Part 3 of the OCIP addendum, entitled “Insurance Coverages Provided,” describes the various types of insurance coverage to be provided by the Owner. The types of coverage described in Part 3 include those listed in the Part 1 “Summary.” Part 3 also describes certain contracts to be excluded from the coverages listed therein. And Part 3 contains the following statement of purpose:

The Owner, at its sole expense, will implement an Owner-Controlled Insurance Program (OCIP) to furnish certain insurance coverages as respects on-site activities. The OCIP will be for the benefit of the Owner and Contractors and Subcontractors of all tiers (unless coverage applies only to work performed under the Contract at the project site and the Contractor and all approved Subcontractors must provide their own insurance for off-site activities. The OCIP is not intended to cover consultants, suppliers vendors or materials dealers.

(Punctuation presented as in original; emphasis in original.)

Part 4 of the OCIP addendum sets forth a variety of “General Provisions.” Pertinently, these include a prohibition against contractors beginning work without a policy or certificate of insurance and a requirement that contractors “incorporate a copy of these Insurance Specifications in each subcontract and . . . require each of his Subcontractors of any tier to comply with these Insurance Specifications.”

Part 5 of the OCIP addendum, entitled “Contractor’s Insurance To Be Provided,” contains the minimum coverages requirement at issue in this case. Part 5 pertinently provides that a contractor shall:

at its own expense, purchase and maintain in a company or companies licensed to do business in the State of Georgia, and acceptable to Owner, such insurance as will protect Contractor, Owner, Construction Manager, Design Consultant, and their Trustees, Directors, Officers, Partners, Agents, Representatives, and Employees from claims of the type set forth below[.]

It then describes the automobile liability insurance coverage requirements at issue here, as well as other types of insurance coverage required thereunder. Part 5 also requires contractors to furnish insurance certificates to the owner before beginning to work at the construction site, and it requires that the City and the airport are named as additional insureds.

Finally, Part 6 of the OCIP addendum, entitled “Claim and Accident Reporting Procedures,” provides: “The immediate reporting of all circumstances which might lead to, or involve a CLAIM is a requirement and non-compliance could result in denial of an equitable disposition of the situation, by the Insurance Carrier(s).” Part 6 sets forth “minimum requirements for specific circumstances,” including the requirement for automobile accidents, such as the accident that killed Pitts.

(b) Determining the meaning of the term “allparticipants” in the statement of purpose in Part 1 of the OCIP addendum.

In Pitts I, we focused on the statement within Part 1 of the OCIP addendum that the purpose of the OCIP is “to provide one master insurance program that provides broad coverages with high limits that will benefit all participants involved in the project.” Citing a dictionary definition of “participant” as “one who participates,” we held that the phrase “all participants” unambiguously included Pitts because, as a person working on the construction project through his employment by a subcontractor, Pitts was participating in the construction project. Pitts I, 312 Ga. App. at 603-604 (1) (a) (i). The Supreme Court and the construction companies each offer alternative interpretations, which we will address in turn. We note that the Supreme Court presented its alternative as a possibility which we are to consider, not as a ruling. See Pitts II, 292 Ga. at 225-226 (2), 230 (4). Consequently, its suggested alternative construction is not the law of the case. See Shadix, 274 Ga. at 563 (1).

(i) “All participants” as “enrollees in a preexisting OCIP.”

The Supreme Court agreed with us that it was appropriate to consult a dictionary for the accepted definition of the word “participant,” and it also agreed that a “participant” is one that has “a part or share in something.” Pitts II, 292 Ga. at 224 (2). See generally Scalia and Garner, supra, at 69 (“Words are to be understood in their ordinary, everyday meanings — unless the context indicates that they bear a technical sense.”). But it found that this definition did not reveal the “something” in which the “participants” referred to in Part 1 had a part or shared. Pitts II, 292 Ga. at 224 (2). Accordingly, the Supreme Court found our interpretation of the phrase “all participants” as participants in the construction project to be “not the only reasonable understanding of that term.” Id. at 225 (2).

Finding that the City and the General Contractor had used the term “OCIP” in two different senses in their contract — “in some places to the entirety of the insurance requirements set out in the OCIP addendum,” Pitts II, 292 Ga. at 225 (2) (footnote omitted), and in other places “more specifically to [a] preexisting program by which the City itself procures and maintains the insurance for which it is responsible on construction projects in which it is involved,” id. (footnote omitted) — the Supreme Court proposed an alternative understanding of the term “all participants,” namely participants in the preexisting OCIP. Id. at 225-226 (2).

The Supreme Court indicated that this alternative construction could explain the phrase “involved in the project” that follows the term “all participants,” Pitts II, 292 Ga. at 226 (2), n. 12, a phrase that the Supreme Court found “somewhat redundant” under the interpretation of “all participants” that we reached in Pitts I. Pitts II, 292 Ga. at 225 (2) (citation omitted). Specifically, the Supreme Court suggested that there might be some enrollees in the preexisting OCIP that were not involved in the project at issue in this case, and thus the phrase “involved in the project” could serve to limit the larger category of “all participants” if that category is viewed to mean “enrollees in the preexisting OCIP.” See id. at 226 (2), n. 12.

We agree that it is reasonable to infer that a preexisting OCIP might have enrollees not involved in this specific construction project. But we find no evidence that the parties intended to refer to any such larger group by the use of the term “all participants” in the OCIP addendum. In Georgia, “[t]he cardinal rule of [contract] construction is to ascertain the intention of the parties,” OCGA § 13-2-3, and “[e]very other rule is subservient to this one.” Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975) (citation and punctuation omitted). We find nothing in the language of the contracts themselves indicating that the parties to these contracts had identified such a larger group of enrollees for any purpose related to the contracts, much less for the purpose of defining the term “all participants” in the OCIP addendum. The contracts do not expressly define such a larger group of OCIP enrollees, nor do they contain language addressing such a larger group’s rights, obligations or interests. Likewise, we have found no parol evidence suggesting that the term “all participants” was intended to refer to a larger group of enrollees in a preexisting OCIP, thereby providing a limiting purpose for the phrase “involved in the project.” While the record contains some extrinsic evidence regarding the independent existence of an OCIP, as the Supreme Court found, see Pitts II, 292 Ga. at 222 (1), n. 4, the record also contains the testimony of the City’s 30 (b) (6) representative, see OCGA § 9-11-30 (b) (6), who stated that the OCIP in this case was “unique to the airport project” and did not pertain to any other City projects. This testimony conflicts with an interpretation that some of the “participants” referred to in the OCIP addendum were not “involved in the project.”

We do not ignore the possibility that, in the construction industry, the term “participants” has a specialized meaning relating to a preexisting OCIP. See generally Ruth Kochenderfer and James P. Bobotek, Construction Wrap-Up Policies: An Overview and Analysis of Selected Coverage Issues, 2011 Emerging Issues 5919 (Sept. 26, 2011) (using term “participant” in manner suggesting it may have specific meaning in context of Owner’s Controlled Insurance Program). “[TJechnical words, words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning.” OCGA § 13-2-2 (2). But the construction companies have neither argued in their appellate briefs nor pointed to any parol evidence of such an industry meaning. Compare Pace Constr. Corp. v. Houdaille-Duval- Wright Div., Houdaille Indus., 247 Ga. 367, 368 (276 SE2d 568) (1981).

The only rule of construction we discern that supports the construction of “all participants” to mean a larger category of enrollees in a preexisting OCIP, only some of whom were involved in the airport construction project, is the rule that the “construction which will uphold a contract in whole and in every part is to be preferred.” OCGA § 13-2-2 (4). As the Supreme Court posited, if there was in fact such a larger category, then the phrase “involved in the project” could serve the purpose of limiting that category. But this assumes the existence of such a larger group of enrollees. If instead, as the City’s 30 (b) (6) representative testified, the OCIP was “unique” to the airport construction project, then the inclusion of the phrase “involved in the project” would not serve this limiting purpose and the phrase would remain, as the Supreme Court described, “somewhat redundant.” Pitts II, 292 Ga. at 225 (2) (citation omitted). Given this testimony, and the lack of any indication in the language of the contract that the parties intended to describe such a larger group, we conclude that the rules of contract construction do not support such an interpretation of the phrase “all participants.”

(ii) “Allparticipants”as “theparties identified as the beneficiaries of the OCIP in Part 3 of the OCIP addendum.”

The construction companies argue that the term “all participants” in Part 1 of the OCIP addendum refers only to the parties specified as beneficiaries of the “OCIP” in Part 3 of the OCIP addendum — “the Owner and Contractors and Subcontractors of all tiers.” (Emphasis omitted.) They reason that the term “all participants” in Part 1 refers to participants in the “OCIP,” and they further reason that the term “OCIP” in Part 1 refers only to the insurance coverage discussed in Part 3 of the OCIP addendum. Consequently, they argue that the beneficiaries referred to in Parts 1 and 3 of the OCIP addendum must be the same, and that the more specific description of those beneficiaries in Part 3 governs over the broader description of those beneficiaries in Part 1. See Avian Systems v. Thompson, 293 Ga. App. 60, 63 (2) (a) (666 SE2d 464) (2008) (“when a provision specifically addresses the issue in question, it prevails over any conflicting general language”) (citation and punctuation omitted).

But as the Supreme Court held, the contracts in this case use the term “OCIP” in more than one sense. Pitts II, 292 Ga. at 225 (2). Because the parties to the contracts have not used that term consistently, we cannot assume that they meant to use the term in the same way in Part 1 and Part 3. Moreover, the overall structure of the OCIP addendum indicates that the parties meant something different — and broader — in Part 1 than they did in Part 3.

The intention of the parties to a contract is ascertained from the entire contract, considering each provision in connection with the others, and not giving the contract a construction which entirely neutralizes one provision if it is susceptible of another which gives effect to all of its provisions.

White v. Kaminsky, 271 Ga. App. 719, 722 (610 SE2d 542) (2004) (citation omitted); see also OCGA § 13-2-2 (4). Each provision should be interpreted to harmonize with the others. Krogh v. Pargar, LLC, 277 Ga. App. 35, 38 (2) (625 SE2d 435) (2005). See generally Scalia and Garner, supra, at 167-168 (discussing role of the structure of an entire text, and the physical and logical relation of its many parts, in the text’s construction).

Here, the entire OCIP addendum is titled “Owner’s Controlled Insurance Program,” and Part 1, a separate section at the start of the document, is headed “Summary.” See Scalia and Garner, supra, at 221 (a document’s title and headings are permissible indicators of meaning). The OCIP addendum does not contain language expressly limiting this summary to Part 3. The purpose of the “OCIP,” as that term is used in the summary’s statement of purpose, is to provide “one master insurance program” with broad coverage. (Emphasis supplied.) See Scalia and Garner, supra, at 56 (“words are given meaning by their context, and context includes the purpose of the text”). And the OCIP addendum sets forth coverage requirements in Part 5 as well as Part 3.

The construction companies’ proposed interpretation, that the statement of purpose in the Part 1 “Summary” applies only to the coverages set forth in Part 3, would render the word “one” meaningless, contrary to the canon that, “[i]f possible, every word ... is to be given effect.” Scalia and Garner, supra, at 174. See Chaudhuri v. Fannin Regional Hosp., 317 Ga. App. 184, 189 (3) (730 SE2d 425) (2012). The OCIP addendum provides for more insurance coverage than just that addressed in Part 3, and the construction companies admit in their appellate brief that insurance to be supplied by contractors under Part 5 of the OCIP addendum is part of the “insurance for the [p]roject.” Although the construction companies argue that the purpose of Part 5 is to outline the insurance coverage that is not provided in the OCIP, the language and structure of the document do not reflect that intent. Part 5 is not phrased as an exception to the “one master insurance program,” but rather it exists as another part of the OCIP addendum setting forth insurance requirements. Although Part 1 contains a list of only those types of insurance set forth in Part 3, the list uses inclusive rather than exclusive language and follows a sentence addressing the insurance listed in Part 3 — that for which the City is obligated. We do not read that list as excluding any of the other types of insurance provided for in the OCIP addendum from the “one master insurance program” discussed in the OCIP addendum’s Summary.

Furthermore, the language in the statement of purpose in Part 1 is significantly different than that in Part 3. Part 1 uses broader terms — the beneficiaries are “all participants involved in the project.” In contrast, Part 3 lists only three specified categories of persons and entities. Part 1 describes the beneficiaries as benefitting from “coverages,” while Part 3 describes them as benefitting from the “OCIP.” And, as described above, the OCIP addendum contains provisions for “coverages” that go beyond the specific owner-provided coverages addressed in Part 3. If the parties wanted to limit the beneficiaries in Part 1 to the limited group of persons and entities identified in Part 3, they knew how to do so. They could have used the language in Part 3. And in fact, they identified those very categories as “Named Insureds” later in Part 1. But they chose different language — “all participants” — to describe the beneficiaries of the coverages provided by the “one master insurance program.” We conclude that the beneficiaries referred to in Part 1 are not the same as those referred to in Part 3. See Ins. Co. of the State of Pa. v. APAC-Southeast, 297 Ga. App. 553, 558 (677 SE2d 734) (2009).

‘Without some indication to the contrary, general words [such as ‘participants’] are to be accorded their full and fair scope. They are not to be arbitrarily limited.” Scalia and Garner, supra, at 101. Reading the contract as a whole, we do not see a basis for limiting the term “all participants” to only those categories of persons or entities described as beneficiaries in Part 3.

(iii) “All participants” as “participants in the construction project.”

Finally, we reconsider the construction of the OCIP addendum that we reached in Pitts I, that the term “all participants” refers to participants in the construction project, including employee Mack Pitts. As discussed above, the Supreme Court found that this interpretation rendered the phrase “involved in the project” somewhat redundant. Pitts II, 292 Ga. at 225 (2). The redundancy is created by the use of the word “involved” — had the language simply read “all participants in the project,” the phrase “in the project” would quite clearly serve to identify the “something” in which the “participants” had a part or share. See generally id. at 224 (2) (finding the dictionary definition of “participant” insufficient to construe term because it did not “identify the ‘something’ in which a ‘participant’ has a part or shares”).

Nevertheless, we do not find that the inclusion of the word “involved” in the statement of purpose reflects an intent that the parties meant “all participants” to refer to those participating in something other than the construction project. Given the structure of the OCIP addendum, the parties’ choice to use broader language in the “Summary” of the document, and the lack of either language within the documents or parol evidence suggesting a different meaning by the parties, we conclude that the application of rules of contract construction points to construing the phrase “all participants” to mean those participating in the airport terminal construction project.

Parol evidence supports this interpretation as well. See OCGA § 13-2-2 (1) (allowing parol evidence to explain latent or patent ambiguities in a contract). The witness designated by the City pursuant to OCGA § 9-11-30 (b) (6) to testify to “matters known or reasonably available to the organization” agreed that a worker such as Pitts was a “participant,” as that term was used in the OCIP addendum’s statement of purpose. Although the City’s OCIP supervisor averred that a company must complete an OCIP registration form to “participate” in a City project, he also indicated that one could “participate” in the airport terminal project as a “non-OCIP enrollee.” The 30 (b) (6) witnesses of both the City and the defendant Subcontractor also testified that the insurance procured by contractors and subcontractors was a component of the OCIP.

Accordingly, we find that, through application of the rules and canons of contract construction and a consideration of parol evidence, we can resolve the ambiguity identified by the Supreme Court in the statement of purpose contained in Part 1 of the OCIP addendum. We find that language to reflect the parties’ intent that a person such as Pitts was a “participant” intended to benefit from the coverages provided by the “one master insurance program” set forth in the O CIP addendum.

(c) The Estate’s standing to enforce specific promises regarding minimum automobile liability insurance coverage.

The Supreme Court held in Pitts II that “status as a third-party beneficiary does not imply standing to enforce every promise within a contract, including those not made for that party’s benefit.” 292 Ga. at 226-227 (2) (citations and punctuation omitted). Instead, a third-party beneficiary “can only enforce those promises made directly for his benefit.” Id. at 227 (2) (citation and punctuation omitted). The Supreme Court directed us to identify the specific contract provisions alleged to have been breached in this case and to consider whether Pitts was an intended beneficiary of those specific provisions, noting that Pitts “might or might not” be an intended beneficiary of the provision requiring that the General Contractor bind its subcontractors to the terms of its contract with the City, or to the provision in the OCIP addendum requiring that contractors provide automobile liability insurance coverage in a minimum amount. Id. at 228 (2).

The specific promises at issue here are those by both the General Contractor (in its contract with the City) and the defendant Subcontractor (in its contract with the General Contractor) to comply with and to require their subcontractors to be bound to all of the terms of the General Contractor’s contract with the City. Specifically, the contract between the General Contractor and the City provided, in paragraph 13.2 (1), that the General Contractor, subcontractors and sub-subcontractors “shall . . . comply with all requirements of the OCIP” attached to that contract (the OCIP addendum). The General Contractor also promised in paragraph 5.3.1 of that contract to

require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the [General Contractor] by the terms of the Contract Documents, and to assume toward the [General Contractor] all the obligations and responsibilities which the [General Contractor] by Contract Documents assumes toward the [City].

And the General Contractor promised in paragraph 13.3 (1) that it

shall not commence any construction Work in connection with this Agreement until it has fulfilled all its requirements under the OCIP and obtained all of the following types of insurance and such insurance has been approved by the [City], nor shall the [General Contractor] allow any Subcontractor or sub-subcontractor to commence work on its Subcontract until the Subcontractor has fulfilled all its requirements under the OCIP and obtained all similar insurance required of the Subcontractor or sub-subcontractors The Insurance requirements are attached as Appendix “B” [the OCIP addendum].

That contract further stated in paragraph 13.3 (2) that the General Contractor “shall require each of its Subcontractors to procure and maintain during the life of any Subcontract, Insurance of the type specified in Appendix ‘B’ [the OCIP addendum], except as otherwise agreed to by the [City].” Those terms included the minimum automobile liability insurance requirements set forth in Part 5 of the OCIP addendum.

The contract between the City and the General Contractor, in paragraph 5.3.1, required the General Contractor to “make available to each proposed Subcontractor, prior to the execution of the Subcontract, copies of the Contract Documents to which the Subcontractor will be bound by this [article]” and required “[e] ach Subcontractor [to] similarly make copies of such documents available to its Sub-Subcontractors.” In paragraph 1.2 of the contract between the General Contractor and the defendant Subcontractor, the defendant Subcontractor “agree [d] to be bound to [the General Contractor] by the terms and conditions of the Contract Documents,” which included the contract between the General Contractor and the City. The defendant Subcontractor also agreed in that paragraph to “assume [ ] toward [the General Contractor] all of the duties and obligations that [the General Contractor] has by the Contract Documents assumed toward [the City].”

To determine whether Pitts was an intended beneficiary of these particular promises, we again look to the OCIP addendum’s statement of purpose, “to provide one master insurance program that provides broad coverages with high limits that will benefit all participants involved in the project.” This statement expresses the intent that all participants benefit from the insurance coverages established by the one master insurance program. As explained above, we find that the parties intended the term “all participants” to include a worker on the construction project such as Pitts.

The promises at issue in this case concerned insurance coverages set forth in Part 5 of the OCIP addendum. As discussed above, we construe the “one master insurance program” referred to in the Part 1 statement of purpose to include the Part 5 insurance coverages. The construction companies argue that, even if Pitts was a “participant” for whose benefit the broad coverages of the one master insurance program was established, he nevertheless was not an intended beneficiary of the minimum automobile liability insurance requirement because the coverage was described with reference to the amount of claims from which the insured would be protected, rather than the amount of claims for which a tort claimant could recover. The Supreme Court mentioned this argument in Pitts II. 292 Ga. at 228 (2), n. 14.

We do not construe this language to evince an intent by the parties that the intended beneficiaries of this coverage would be different than the intended beneficiaries described in the Part 1 “Summary” of the OCIP addendum. The language in Part 5 specifies the persons and entities who will be insureds, but, unlike Part 1, the language in Part 5 does not discuss the intended beneficiaries of the coverage. And, as seen in Part 1, the parties did not use the terms “beneficiaries” and “insureds” interchangeably. While as a general rule tort claimants are not treated as third-party beneficiaries of insurance policies, see Crisp Regional Hosp. v. Oliver, 275 Ga. App. 578, 583 (4) (621 SE2d 554) (2005), here the summary provision of the OCIP addendum expressly describes the beneficiaries in a broad manner that encompasses such tort claimants. We will not read into the language of Part 5 an implicit modification of the broad category of beneficiaries established in Part 1 so as to find Pitts not a beneficiary of coverages set forth in Part 5, given the clear indication in Part 1 that all participants were to benefit from the coverages in the one master insurance program.

Likewise, the provisions requiring the construction companies to enforce the minimum coverage requirements in their dealings with subcontractors clearly relate directly to the benefit described in the statement of purpose in Part 1 of the OCIP addendum, for which Pitts, as a “participant,” would be an intended beneficiary.

(d) Breach.

The Supreme Court indicated that, on remand, we should consider whether the promisors breached their promises. Pitts II, 292 Ga. at 230 (4), n. 18. The construction companies in this case each signed documents in which they promised to abide by the minimum coverage requirements set out in Part 5 of the OCIP addendum and to require their subcontractors to comply with those requirements, as well. The General Contractor’s contract with the City prohibited it from starting work on the project or allowing any subcontractor or sub-subcontractor to commence work until the requirements were met. The defendant Subcontractor was bound by these terms, as well, by virtue of its contract with the General Contractor. A&G Trucking, a subcontractor of the defendant Subcontractor, breached its duty to secure the required coverage. The General Contractor and defendant Subcontractor breached their duties to require their subcontractors to secure that coverage and violated the prohibition against starting work until that coverage had been secured. For the reasons set out in Pitts I, we find that these promises made by the construction companies were breached. See Pitts I, 312 Ga. App. at 607-608 (1) (b).

Decided July 16, 2013

Butler, Wooten & Fryhofer, James E. Butler, Jr., Joel O. Wooten, Jr., Kate S. Cook, McDonald, Cody & Cook, Matthew E. Cook, Shiver Hamilton, Alan J. Hamilton, Davis, Pickren, Seydel & Sneed, James P. Sneed, for appellants.

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

Thrasher, Liss & Smith, Gerald S. Walters, amicus curiae.

(e) Workers’ compensation.

Regarding the applicability of the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11 (a), the Supreme Court stated that, because “questions remain about whether, and to what extent, Pitts was an intended beneficiary of [the] contracts, we do not reach the exclusive remedy question.” Pitts II, 292 Ga. at 781 (4), n. 17. Accordingly, the Supreme Court has not held that our analysis of this issue in Pitts I was incorrect. We again find that the Estate’s breach of contract claims were not barred by OCGA § 34-9-11 (a), for the reasons set forth in Pitts I, 312 Ga. App. at 605-607 (1) (a) (ii).

Judgment affirmed in part and reversed in part.

Boggs and Branch, JJ., concur.

       The City and the construction companies have sought leave in this appeal to file a response to a Power Point presentation that the Estate made at oral argument. They attached the response to their motion. We grant the motion and have considered the response.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A0004.
    WILLIAMS v. THE STATE.
    (746 SE2d 913)
   BARNES, Presiding Judge.

Abdu O. Williams appeals from the denial of his motion for new trial following his jury conviction for armed robbery and aggravated assault. Williams contends, among other things, that the evidence was insufficient to sustain his conviction and raises multiple claims of ineffective assistance of counsel. Upon our review, we affirm.

1. “On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain [whether] the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

(Citation omitted.) Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009); see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence demonstrates that Williams and the victim were neighbors in a Clayton County apartment complex, and Williams also cut the hair of the victim and his children. On November 26, 2004, Williams was at the victim’s home playing video games. As Williams was leaving, he asked the victim for a beer, and when the victim turned his back, Williams “started cursing, [and]... [t]hen he slashed” the victim with a box cutter. Williams said that he wanted money, and the victim gave him $200, but Williams told him that he could not let him go “because you will talk. I’ve got to kill you.” When Williams started slashing the victim again, the victim called out for help and then fought with Williams until he was able to take the box cutter away from him. Williams ran out of the apartment, and the victim went to a neighbor’s house for help. The victim identified Williams as the person who had assaulted and robbed him.

We find the evidence sufficient to sustain Williams’ convictions for armed robbery and aggravated assault. The testimony of the victim, standing alone, was sufficient to sustain the convictions. See former OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). The jury, not this Court, “determine [s] the credibility of the witnesses and... resolve [s] any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012).

2. Williams also maintains multiple claims of ineffective assistance from his trial counsel. Williams timely filed his motion for new trial on May 11, 2006, and trial counsel had died at some point after filing the motion. His first appellate counsel was appointed on August 8, 2006, and Williams’ current attorney was appointed on June 29, 2009.

To prevail on a claim of ineffective assistance of trial counsel, [a criminal defendant] must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

(Citation and punctuation omitted.) Matthews v. State, 284 Ga. 819, 821-822 (4) (672 SE2d 633) (2009). On appeal, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003). .

(a) Although Williams contends that trial counsel was ineffective for failing to object to the admission of the victim’s medical records, the records he appears to complain about are the emergency notes and physical examination procedure notes that were made by the emergency room doctor who treated the victim and who testified at the trial. Williams does not specify why trial counsel should have objected to the documents or present any further argument for this broad and general assertion. Accordingly, as he has failed to support this allegation with argument or authority, it is deemed abandoned. Court of Appeals Rule 25 (c) (2); Fields v. State, 281 Ga. App. 733, 738-739 (2) (c) (637 SE2d 136) (2006), overturned on other grounds, Schofield v. Holsey, 281 Ga. 809 (642 SE2d 56) (2007).

(b) Williams also claims that trial counsel was ineffective for failing to object to speculative and “irrelevant and prejudicial testimony” about the victim’s injuries, but the testimony he appears to complain about is the emergency room doctor’s testimony about the injury to the victim’s neck and its proximity to the carotid artery.

“An expert may give an opinion based upon his own examination, upon his observation, or upon any state of facts, supported by some evidence in the case, which he assumes as true.” (Citation, punctuation and emphasis omitted.) Leonard v. State, 269 Ga. 867, 870 (3) (506 SE2d 853) (1998). Here, the doctor testified from his personal knowledge and testified concerning his medical findings from his examination of the victim in the emergency room. As such, the doctor’s testimony was properly admitted, and any objection by trial counsel would have been meritless.

(c) Williams’ contention that trial counsel was ineffective for failing to ensure that the voir dire and closing arguments were transcribed is meritless. “The arguments of counsel at trial are not required to be transcribed]] and] [v]oir dire is not required to be transcribed unless the prosecution is seeking the death penalty.” (Citation omitted.) Dunlap v. State, 291 Ga. 51, 53 (3) (727 SE2d 468) (2012). Thus, trial counsel was not ineffective on this basis.

(d) Williams contends that trial counsel failed to submit appropriate jury instructions, failed to investigate the viability of a post-conviction attack of his prior felonies, and did not advise him of his right to attack his prior felony sentences. He does not, however, provide any record citations, argument, or legal authority for these assertions. “[Williams’] speculation that error may have occurred is insufficient to show any deficiency on the part of counsel, or prejudice therefore, and is insufficient to show reversible error.” Dunlap, 291 Ga. at 53 (3). Moreover, allegations that are not supported with argument or authority are deemed abandoned. Court of Appeals Rule 25 (c) (2); Fields v. State, 281 Ga. App. at 738-739 (2) (c).

3. At his sentencing hearing, the State introduced for purposes of recidivist punishment, see OCGA § 17-10-7, three certified copies of guilty pleas Williams had entered to felonies in Mitchell County. Williams did not object to the admission of the guilty pleas. On appeal, he complains that following his guilty plea, the trial court did not apprise him of his right to pursue post-conviction relief, and that the trial counsel who represented him during his plea was ineffective because he did not advise Williams of the right to appeal his guilty pleas, pursue post-conviction relief or the consequences of the guilty pleas.

When the state seeks recidivist punishment in a case not involving the death penalty, it bears the burden of proving (1) the existence of prior guilty pleas and (2) that the defendant was represented by counsel in connection with those pleas. If the state offers such proof, the presumption of regularity attaches and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.

(Punctuation and footnotes omitted.) Johnson v. State, 268 Ga. App. 1, 6 (2) (601 SE2d 392) (2004).

[Williams] can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence. A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient.

Freeman v. State, 244 Ga. App. 393, 396 (2) (535 SE2d 349) (2000).

Here, the State produced copies of the three felony convictions showing that Williams was represented by the same appointed attorney for the 1997,1999 and 2001 guilty pleas in Mitchell County. Thus, the State met its initial burden of proving that Williams had made the three counseled guilty pleas. Williams presents no evidence countering the presumption of regularity; thus his arguments in this regard are meritless.

4. Williams next contends that his first appellate counsel was ineffective. Specifically, he asserts that appellate counsel was ineffective for failing to investigate his case beyond the issues Williams had identified, and in failing to timely pursue habeas relief with regard to the prior guilty pleas. At the motion for new trial hearing, Williams’ first appellate counsel testified that he was appointed to represent Williams after Williams’ trial counsel for the underlying convictions became ill. He represented Williams from August 2006 until July 2009 and primarily assisted him on issues related to his motion for new trial, including pursuing an ineffectiveness claim against trial counsel (who was deceased at that point), investigating alibi witnesses, and challenging the jury instructions. He further testified that in April 2009, Williams contacted him and said that he wanted to make a Boykin challenge to “three pleas that he had taken out in Mitchell County, back in ’97, ’99 and . . . 2001.” The appellate counsel testified that he informed Williams that it was too late to make a challenge to the pleas, and that in July 2009 he was replaced with Williams’ current appellate attorney.

Pursuant to OCGA § 9-14-42 (c) (1), a person whose felony conviction had become final as of July 1, 2004, has until July 1, 2008 to bring a habeas petition. Williams did not notify his first appellate counsel that he wanted to pursue habeas relief from his prior guilty pleas until well after that date. Thus, appellate counsel was not ineffective on this basis, even assuming Williams could have collaterally attacked his prior guilty pleas in the present action by way of a habeas petition.

Decided July 16, 2013

Danielle R Roberts, for appellant.

Tracy Graham-Law son, District Attorney, Elizabeth A. Baker, Frances C. Kuo, Assistant District Attorneys, for appellee.

Likewise, Williams’ remaining contentions regarding appellate counsel are meritless, as his unsupported statements of speculated harm fail to demonstrate that there is a reasonable likelihood that but for trial counsel’s alleged failures the outcome of the trial would have been different. See Lee v. State, 316 Ga. App. 227, 233-234 (3) (728 SE2d 847) (2012). “Failure to show both deficiency and prejudice defeats a claim of ineffective assistance.” (Footnote and emphasis omitted.) Williams v. State, 319 Ga. App. 827, 829 (738 SE2d 637) (2013).

Judgment affirmed.

Miller and Ray, JJ., concur.


author: ELLINGTON, Presiding Judge.

text:
    A13A0012.
    PENNINGTON v. THE STATE.
    (746 SE2d 768)
   ELLINGTON, Presiding Judge.

A Dawson County jury found Warren Pennington guilty of five counts of felony theft by conversion, OCGA § 16-8-4 (a); and six counts of felony theft by taking, OCGA § 16-8-2. He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion to quash the indictment. For the following reasons, we reverse Pennington’s convictions on Counts 3 through 8 and 10 of the indictment. We also conclude that Pennington is entitled to a new trial on Counts 1, 2, 11, and 12, so we reverse his convictions on those counts and remand this case to the trial court.

1. Pennington contends that the trial court erred in denying his demurrer to Counts 1 through 8, 10, and 11 of the indictment, arguing that the indictment shows on its face that the prosecution of those offenses was barred by the applicable four-year statute of limitation. We agree in part.

“In criminal cases, the statute of limitation[ period] runs from the time of the criminal act to the time of indictment.” (Footnote omitted.) Jenkins v. State, 278 Ga. 598, 601 (1) (A) (604 SE2d 789) (2004) . “If it appears on the face of the indictment that the statute of limitation has run, the indictment is fatally defective and subject to demurrer, unless the indictment also alleges one or more of the exceptions which would remove the bar of the statute.” (Footnote omitted.) State v. Barker, 277 Ga. App. 84, 87 (3) (625 SE2d 500) (2005). See Jenkins v. State, 278 Ga. at 604 (1) (B) (If the State intends to rely on an exception to the running of the statute of limitation period, it must allege such exception in each count of the indictment to which it applies.). One of these exceptions provides that the statute of limitation period is tolled from the time the illegal act is committed until the time the crime is discovered. OCGA § 17-3-2 (2); Stack-Thorpe v. State, 270 Ga. App. 796, 799 (1) (608 SE2d 289) (2004). “The burden is unquestionably upon the State to prove that a crime occurred within the statute of limitation, or, if an exception to the statute is alleged, to prove that the case properly falls within the exception.” (Citation and punctuation omitted.) Martinez v. State, 306 Ga. App. 512, 522 (2) (702 SE2d 747) (2010).

When an appellate court reviews a trial court’s decision on a defendant’s motion to quash an indictment or a plea in bar based upon the expiration of the statute of limitation, “we conduct a de novo review of the legal issues. Further, we must accept the trial court’s findings on disputed facts and witness credibility unless those findings are clearly erroneous.” (Citations omitted.) State v. Bair, 303 Ga. App. 183 (692 SE2d 806) (2010).

The record shows the following relevant facts. Pennington was an accountant whose Dawson County business provided, among other things, payroll and tax-related services for numerous clients. As part of these services, Pennington calculated the amount of monthly or quarterly payroll taxes his clients owed to the government, and his clients sent that amount of money to him to be deposited into a payroll escrow account and held there until the taxes became due, at which time Pennington was supposed to pay the taxes.

In May 2008, Pennington contacted the Dawson County Sheriff’s Office and reported that an employee had been stealing money from the payroll escrow account. While investigating that report, an officer discovered not only that the employee had stolen approximately $90,000 from the account by electronically transferring funds into private accounts owned by her friends, but that, since February 2006, Pennington had also been illegally withdrawing funds from the payroll escrow account for his personal use and unrelated business expenses. Further, as a result of the illegal depletion of the payroll escrow account, Pennington had repeatedly failed to pay his clients’ payroll taxes.

The investigator arrested Pennington, and, on December 4, 2009, the State filed an accusation charging Pennington with four counts of theft by conversion, each alleging that he unlawfully committed the following act:

having lawfully obtained funds, to wit: U. S. Currency, the property of Warren Pennington’s Payroll Escrow Account, under an agreement to make a specified application of said funds, knowingly converted] said property to his own use in violation of such agreement by diverting money from the payroll escrow account into his operating [or personal] account, said funds having a value of more than $500.00.

Count 23 alleged that Pennington committed this crime between February 25, 2006, and December 28, 2006, while Count 24 alleged that the crimes occurred between April 5, 2006, through December 28,2006. Similarly, Count 25 alleged that the crimes occurred between January 3,2007, and December 21,2007, while Count 26 alleged that the crimes occurred between January 4,2007, and November 9,2007. None of the counts named any victim other than “Warren Pennington’s Payroll Escrow Account,” identified any person or entity that had contributed to that account, or included any explanation of how or why the counts charging the same crimes within overlapping date ranges (i.e., Counts 23 and 24, and Counts 25 and 26) were distinguishable from one another. Pennington waived arraignment on the accusation on January 12, 2010.

Eight months later, on September 13, 2010, the State filed an indictment against Pennington. Counts 1, 2, 10, and 11 charged him with theft by conversion, alleging that,

having lawfully obtained funds of another under an agreement and other legal obligation to make a specified application of such funds, [Pennington] did unlawfully and knowingly convert the funds to his own use in violation of the agreement and legal obligation, to wit: did take funds deposited into a payroll escrow account for the purpose of paying employees and state and federal payroll taxes and converted said funds to his own use and the use of his firm . . . , said funds having an aggregate value of more than $500.00 and having been deposited by one or more of the following: Midtown Optical, Inc. [,] Abbott Creek Nurseries, Inc. [,] Wild Willy’s RV[, and] Horizon Controls, Inc.

In addition, a fifth charge, Count 12, alleged similar facts, adding that some of the funds had been deposited for the purpose of contributing to employee retirement plans and that the funds had been deposited by one or more of the businesses named above or ten other named businesses. In contrast, Counts 3 through 9 of the indictment charged Pennington with theft by taking, alleging that,

being in lawful possession of property of another, to wit: U. S. Currency, did unlawfully appropriate said property with the intention of depriving the owner of the property, said property having a value of more than $500.00 and having been appropriated by means of an electronic transfer when it had been deposited into a payroll escrow account by one and [sic] more of the following for the purpose of paying employees and. state and federal payroll taxes: Midtown Optical, Inc.[,] Abbott Creek Nurseries, Inc.[,] Wild Willy’s RV[, and] Horizon Controls, Inc.

Regarding the dates that the alleged crimes occurred, Counts 1 and 2 alleged that Pennington committed the thefts by conversion within a range of dates in 2004 and 2005, respectively, but that “said offense[s] [were] unknown until May 22, 2008.” Counts 3 through 8 of the indictment charged that Pennington committed theft by taking on specific dates in February, March, and April 2006, while Counts 10 and 11 alleged that Pennington committed theft by conversion between February 22,2006, and May 19,2006, and between July 31,2006, and December 28, 2006, respectively. Finally, Count 12 alleged that he committed theft by conversion between January 31,2007, andDecember 21, 2007. On November 22, 2010, Pennington pleaded not guilty to the indictment and waived formal arraignment.

On December 3, 2010, Pennington filed a motion to quash the indictment, asserting that it failed to adequately charge him with any criminal offense and that it charged him with crimes for which prosecution was barred by the applicable four-year statute of limitation. He also claimed that, due to the language of the indictment, he would be unable to defend himself against allegations that he committed theft of “uncertain amount[s]” from “uncertain victim[s].” Further, in his attached brief, he stated that “[t]he purpose of this motion [to quash] is limited to proving that even if it were true that [he] transferred [the funds at issue] from the payroll escrow account for his own use, no crime took place.” (Emphasis supplied.) Based upon these contentions, he asked the trial court to grant his motion and to dismiss the indictment.

On the day of trial, Pennington asked for the court to conduct a hearing on his motion to quash. In addition to arguing that the statute of limitation barred his prosecution on the indictment, Pennington argued that the court should quash the indictment because it did not provide sufficient notice to him of the offenses for which he was charged and did not protect him from double jeopardy, in part because of the broad range of dates given in the theft by conversion counts and the number of alleged victims identified in each count. The trial court denied the demurrer as to each of Pennington’s arguments except as to the statute of limitation issue and stated that it was going to reserve ruling on that issue until the State had presented its case-in-chief and rested, at which time it would decide the statute of limitation issue on the evidence that had been presented.

The trial proceeded with the State’s presentation of evidence, which showed that, beginning in 2004, Pennington repeatedly withdrew or transferred funds from the payroll escrow account to pay his personal and/or unrelated business expenses. As a result of these illegal withdrawals, the payroll escrow account often held insufficient funds for Pennington to pay his clients’ payroll taxes as they became due. Because of Pennington’s failure to pay the taxes, his clients started receiving delinquent tax notices from the Internal Revenue Service (“IRS”), even though they had paid the money they owed to Pennington, to be deposited in the payroll escrow account, months or even years before. Upon receiving these notices, the clients contacted Pennington, who offered a variety of excuses for the notices, such as claiming that there had been clerical errors, that the IRS had made mistakes, that the payroll tax checks and IRS notices had crossed in the mail, etc. Pennington consistently assured his clients that he would take care of the problems with the IRS, and this temporarily abated his clients’ concerns. It was not until after Pennington reported his employee’s theft to the Dawson County Sheriff’s Office in May 2008 that the official investigation and a private audit of his financial records revealed to some of his clients that he had failed to pay their payroll taxes because he had been illegally withdrawing and transferring funds from the payroll escrow account for several years.

After the State finished presenting its case-in-chief, Pennington made a motion for a directed verdict of acquittal on all counts of the indictment and argued that the court should grant his motion to quash because the State had failed to prove that its prosecution of him on the indictment was not barred by the statute of limitation. The trial court then denied the motion to quash, finding that the State had met its burden of proving that the charged offenses had occurred within the statute of limitation period, and it denied the motion for a directed verdict, ruling that the issues of identity, criminal intent, circumstantial evidence, and witness credibility were for the jury to determine.

(a) Before reaching the merits of Pennington’s argument that the statute of limitation barred the State’s prosecution of any offenses that occurred before September 13, 2006 (i.e., four years before the indictment was filed), we must address the State’s argument that Pennington cannot prevail on this claim because the indictment was a superseding indictment that related back to the accusation it timely filed on December 4, 2009. As shown above, in that accusation, the State charged Pennington with committing four counts of felony theft by conversion in 2006 and 2007, i.e., within the four-year statute of limitation period. The State contends, therefore, that, even if it filed the indictment after the statute of limitation period for Counts 1 through 11 had expired, as Pennington contends, those counts were not fatally defective and its prosecution of those counts was not barred. We disagree.

[A] superseding indictment brought after the statute of limitation has run is valid as long as (i) the original indictment[] is still pending; (ii) the original indictment was timely; and (iii) the superseding indictment does not broaden or substantially amend the original charges. Whether an amended indictment broadens or substantially amends the charges contained in the original indictment depends upon whether the new charges contain elements that are separate and distinct from the original charges.

(Citations and punctuation omitted; emphasis in original.) Martinez v. State, 306 Ga. App. at 523 (2). Further, the determination of whether the indictment broadens or substantially amends the original charges is an issue of law for the court. Lee v. State, 289 Ga. 95, 96 (709 SE2d 762) (2011).

In this case, the record shows that the accusation only charged Pennington with four counts of theft by conversion, that each offense was allegedly committed within eight- to twelve-month periods in either 2006 or 2007, and that each count charged Pennington with illegally taking funds from “Warren Pennington’s Payroll Escrow Account,” without naming any individual or business who had deposited funds into that escrow account. In contrast, the indictment charged Pennington with committing three counts of theft by conversion during certain periods in 2006 and 2007, but it also included two charges that he committed theft by conversion in 2004 and 2005 — additional offenses that the State clearly did not allege in the accusation. Further, the indictment added seven counts of theft by taking that allegedly occurred on specific dates in February, March, or April 2006. And, unlike the accusation, which stated that Pennington had stolen from his business’ payroll escrow account, each of the counts of the indictment named specific and independent businesses that had deposited funds into the escrow account for the purpose of paying their employees and payroll taxes and, thus, were the alleged victims of Pennington’s thefts from the account.

Moreover, although the State offers the unsupported argument on appeal that the crime of theft by conversion, as charged in the accusation, is basically the same offense as the thefts by taking that are charged in Counts 3 through 8 of the indictment, it waived this argument by failing to raise it in the court below, as well as by failing to cite to any authority to support the argument on appeal. In fact, during the motion hearing, the State specifically argued that the thefts constituted different offenses, stating that the thefts are covered by two different statutes, so that “you can’t lump them together” as if they are all the same kind of theft. According to the State, the thefts by conversion occurred when Pennington failed to timely pay the payroll taxes for clients who had already contributed the money to the payroll escrow account, while the thefts by taking occurred when Pennington withdrew or transferred money from the escrow account to pay his personal or business expenses.

Under these circumstances, we conclude that the indictment substantially and materially amended the accusation, so that the indictment did not relate back to the accusation. See Martinez v. State, 306 Ga. App. at 523 (2) (holding that the State’s decision to reissue an indictment that included an additional 13 false imprisonment counts and a kidnapping count substantially amended the charges in the original indictment because the additional offenses contain elements that are separate and distinct from the crimes charged in the original indictment). Consequently, we find that the State’s filing of the accusation did not stop the running of the four-year statute of limitation period for filing the indictment.

(b) We now turn to Pennington’s contention that the trial court erred in refusing to dismiss Counts 3 through 8 and 10 because the statute of limitation period for those offenses had expired. As shown above, Counts 3 through 8 of the indictment charged that Pennington committed theft by taking on specific dates in February, March, and April 2006, while Count 10 alleged that Pennington committed theft by conversion between the dates of February 22 and May 19, 2006. The State did not allege that any exception to the running of the statute of limitation period applied to those counts. Because the State did not file the indictment until September 13, 2010, the indictment shows on its face that all of those dates fall outside the four-year statute of limitation period. Accordingly, we agree with Pennington that those counts of the indictment were fatally defective and were subject to a general demurrer. See Jenkins v. State, 278 Ga. at 604 (1) (B); State v. Barker, 277 Ga. App. at 87 (3). Thus, the trial court erred in refusing to dismiss those charges, and Pennington’s convictions on those counts must be reversed.

(c) As for Pennington’s motion to quash Counts 1, 2, and 11, the question presented is whether the State met its burden of proving to the trial court either (i) that each offense was committed within the statute of limitation period or (ii) that an exception to the statute of limitation applied to toll the running of the statute. See Martinez v. State, 306 Ga. App. at 522 (2).

(i) Count 11 alleged that Pennington committed theft by conversion at some point between July 31 and December 28, 2006. Therefore, the State had the burden of proving that the offense occurred between September 13 and December 28, 2006, i.e., a period within four years of the filing of the indictment. See Martinez v. State, 306 Ga. App. at 522 (2).

To that end, the State presented evidence showing that, in November 2006, Pennington failed to pay $3,035.75 in payroll taxes for a client named in Count 11, Horizon Controls, Inc. Thus, the record supports a finding that Pennington committed theft by conversion, as charged in Count 11, within the four-year statute of limitation period, and the trial court did not err in denying his motion to quash that count. See Martinez v. State, 306 Ga. App. at 522 (2); State v. Bair, 303 Ga. App. at 183 (We must accept the trial court’s findings on disputed facts unless they are clearly erroneous.); see also Stroud v. State, 284 Ga. App. 604, 610 (3) (a) (644 SE2d 467) (2007) (Defense counsel’s failure to file a motion to quash the indictment did not prejudice the defendant because, inter alia, the evidence showed that he committed the offenses charged in the indictment within the alleged date range and within the applicable statute of limitation period.).

(ii) Although the indictment alleged that the offenses charged in Counts 1 and 2 were committed outside the statute of limitation period (i.e., in 2004 and 2005, respectively), both counts also alleged that an exception applied to the running of the limitation period, specifically, that the offenses were not discovered until May 22, 2008, at the earliest. See OCGA § 17-3-2 (2); State v. Campbell, 295 Ga. App. 856, 857-858 (673 SE2d 336) (2009); Stack-Thorpe v. State, 270 Ga. App. at 799 (1).

In proving that the exception applied in this case, the State presented evidence showing that Pennington had failed to pay taxes due for one of his clients, Abbott Creek Nurseries, Inc., in both 2004 and 2005. Although Abbott Creek began receiving delinquent tax notices from the IRS in late 2007, Pennington repeatedly offered excuses to explain the notices, so Abbott Creek did not become aware that the taxes had not been paid until several months later, during the summer of 2008, i.e., after the State began its criminal investigation of Pennington in May 2008.

In addition, the State showed that Pennington had failed to pay the 2005 payroll taxes for another client, Horizon Controls, Inc., but that the crime was not discovered until July 2008.

Given this evidence, we conclude that the State met its burden of proving that the statute of limitation period was tolled until the crimes charged in Counts 1 and 2 were discovered. See Martinez v. State, 306 Ga. App. at 522 (2); State v. Campbell, 295 Ga. App. at 857-858. It follows that the trial court did not err in denying Pennington’s motion to quash those counts of the indictment.

(d) Given our ruling that the expiration of the statute of limitation periodbarred the State’s prosecution on Counts 3,4, 5,6, 7,8, and 10 of the indictment and that, as a result, Pennington’s convictions on those counts must be reversed, we must determine whether the trial court’s erroneous denial of Pennington’s motion to quash those counts prior to trial, and the improper admission of evidence on those counts that resulted from such error, prejudiced Pennington to the extent that he was denied a fair trial as to the remaining counts. We find that, under the circumstances of this case, the admission of evidence on Counts 3 through 10 was unduly prejudicial to the jury’s independent consideration of Pennington’s guilt on Counts 1, 2, 11, and 12. See Jenkins v. State, 278 Ga. at 604-605 (1) (B) (holding that, if the trial court finds before trial that the statute of limitation barred the prosecution on certain counts of the indictment, “the State cannot present these charges to the jury at trial”) (footnote omitted). We also find that a reasonable probability exists that the jury’s verdict would have been different if the evidence on those counts had not been disclosed to the jury. See London v. State, 274 Ga. 91, 94 (4) (c) (549 SE2d 394) (2001) (A defendant may demonstrate reversible error by showing that, if the inadmissible evidence had not been disclosed to the jury, “there existed a reasonable probability that the result of the trial would have been different.”) (citation omitted) . Accordingly, we conclude that Pennington is entitled to a new trial on Counts 1,2,11 and 12 of the indictment, and we hereby reverse those convictions and remand this case to the trial court for further proceedings.

Decided July 16, 2013.

George H. Law III, for appellant.

Lee Darragh, District Attorney, Conley J. Greer, Assistant District Attorney, for appellee.

2. Having reversed Pennington’s convictions, we find that his remaining enumerated errors are moot.

Judgment reversed and case remanded.

Phipps, C. J., concurs. Branch, J., concurs in judgment only.

       The State indicted Pennington on September 13,2010, at which time OCGA § 16-8-12 (a) (1) provided that a theft of property valued at more than $500 was a felony. The Georgia General Assembly amended that provision in 2012 to raise the minimum value for felony punishment to $1,500.01. See Ga. L. 2012, p. 899, § 3-2.

       After this Court dismissed Pennington’s original direct appeal as untimely, the trial court granted Pennington’s motion for an out-of-time appeal.

       The jury acquitted Pennington on Count 9 of the indictment.

       Pennington does not challenge the court’s denial of his demurrer to Count 12 of the indictment, which alleged that he committed theft by conversion in 2007, on statute of limitation grounds.
      Also, because the jury acquitted Pennington on Count 9 of the indictment, the issue of whether the statute of limitation barred prosecution on that count is moot. See Martinez v. State, 306 Ga. App. 512, 522 (2), n. 20 (702 SE2d 747) (2010).

       See OCGA § 17-3-1 (c) (prosecution for these felonies must be commenced within four years after the commission of the crime).

       See also Zabain v. State, 315 Ga. App. 749, 752 (3) (728 SE2d 273) (2012) (An indictment charged the defendant with committing misdemeanor sexual battery more than two years earlier. Because the indictment did not allege that any exception to the two-year statute of limitation applied, the indictment was fatally defective and the prosecution was barred.).

       See State v. Campbell, 295 Ga. App. 856, 857-858 (673 SE2d 336) (2009) (“The crime victim’s knowledge of the crime is imputed to the State; therefore,... the State [has] the bur den to prove that the [victim’s] first knowledge of the alleged theft occurred in the four years prior [to the indictment], . . . [We emphasize, however, that the] tolling period is not extinguished when the injured party should have known; rather, it ends when the injured party has actual knowledge of the crime.... [Thus, the] statute of limitation does not run while the crime or the person who committed the crime is ‘unknown’ — it does not say ‘and could not have been discovered through the exercise of reasonable diligence.’ [Thus, even if the alleged crimes] ‘could have easily been noticed,’ that is not the applicable standard.”) (citation, punctuation and footnotes omitted; emphasis in original).

       The evidence showed that the employee began stealing money from the escrow account in July 2006. Following her 2008 arrest, she pled guilty to felony theft by taking and was sentenced to 35 years probation and ordered to pay restitution. The employee testified for the State at Pennington’s trial.

       “Amotion to quash is the equivalent of a general demurrer, attacking the validity of the indictment.” (Citation omitted.) State v. Brown, 250 Ga. App. 376, 378 (1) (551 SE2d 773) (2001).

       In support of this assertion, he argued that the State had miscalculated the amount of money he had allegedly transferred out of the escrow account for his personal use and had failed to give him credit for the amount of money he had personally deposited into the account, which he claimed exceeded the amount he was charged with stealing.

       Pennington’s motion to quash did not include a request for a pre-trial evidentiary hearing.

       We note that, during the hearing, Pennington did not ask for the opportunity to present witnesses in support of his motion; did not assert that the State was required to present witnesses during the hearing to show that the prosecution on the indictment was not barred by the statute of limitation or cite to any authority on that issue; and did not object to the prosecutor stating in her place what the evidence was likely to show at trial.

       See Wooten v. State, 240 Ga. App. 725, 726 (2) (a) (524 SE2d776) (1999) (holding that this rule applies to charges that are originally brought by accusations as well as by indictments); see alsoOCGA § 17-7-70.1 (a) (1) (B) (allows the State to assert felony charges of theft by taking and theft by conversion by accusation as well as by indictment).

       In fact, during the motion hearing, the prosecutor specifically admitted that she filed the indictment because the accusation was legally insufficient to withstand a demurrer. The hearing transcript shows that the prosecutor conceded the following facts: that the accusation “had no victims listed, simply said that [Pennington] took money out of this account, and that was why I... reindict[ed] the case”; that, if the State was still proceeding on the accusation, “I would agree with [Pennington] that it was not specific enough” to survive a demurrer “and that’s why I took the time to reindict the case”; and that the accusation “was not specific enough and would have opened up the defendant to a double jeopardy issue.” Despite these admissions, however, the State has failed to cite to any authority that would authorize an indictment to relate back to a previously filed, but admittedly deficient, accusation or indictment.

       Compare OCGA § 16-8-2 (“A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”) with OCGA § 16-8-4 (a) (“Aperson commits the offense of theft by conversion when, having lawfully obtained funds or other property of another . . . under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation.”). See also OCGA §§ 16-1-6 (1) (“An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when... [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime chargedf.]”); 16-1-7 (a) (“When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”); Drinkard v. Walker, 281 Ga. 211,212 (636 SE2d 530) (2006) (adopting the “required evidence” test for determining whether one crime is included within another under OCGA § 16-1-6 or OCGA § 16-1-7).

       See Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005) (“We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection . . . which were not raised and determined in the trial court.”) (footnote omitted); Court of Appeals Rule 25 (c) (2) (an argument is deemed abandoned when it is unsupported by a citation to authority).

       See also Lee v. State, 304 Ga. App. 681, 682 (1) (697 SE2d 221) (2010) (holding that the State’s decision to amend an accusation to replace a charge of prostitution with the separate and distinct offense of pimping substantially amended the original charge and, because the statute of limitation had expired before the amended accusation was filed, the State was barred from prosecuting the defendant on the pimping charge), rev’d on other grounds, Lee v. State, 289 Ga. 95, 97 (709 SE2d 762) (2011); State v. Bair, 303 Ga. App. at 187 (holding that it was impermissible for the State to reissue an indictment that included 31 counts of theft by taking after the original indictment, which alleged a single count of theft by taking, was dismissed as defective, because it broadened and substantially amended the original indictment).

       See generally Carpenter v. State, 167 Ga. App. 634, 642 (9) (307 SE2d 19) (1983) (“It is well settled in Georgia law that evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day previous to the [filing] of the hill [of indictment] and within the statute of limitation for the prosecution of the offense.”) (citations and punctuation omitted).

       We note that, even if the offenses charged in Counts 3 through 8 and 10 would have been admissible as similar transactions to the remaining counts, Pennington would have been entitled, upon request, for the court to instruct the jury “correctly and completely on the admissibility of similar transaction evidence and the specific limited purpose for which it may be considered.” Sedlak v. State, 275 Ga. 746, 751(2) (e) (571 SE2d 721) (2002), relying upon State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

       See also Felder v. State, 266 Ga. 574, 576 (2) (468 SE2d 769) (1996) (“The standard for weighing nonconstitutional error in criminal cases is known as the ‘highly probable test,’ i.e., that it is ‘highly probable that the error did not contribute to the judgment.’ Under that test, a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error.”) (citations and punctuation omitted).