author: McFadden, Judge.

text:
    A13A0305.
    KING v. GENON ENERGY HOLDINGS, INC.
    (747 SE2d 15)
   McFadden, Judge.

Donald King filed a breach of contract action against GenOn Energy Holdings, Inc., formerly known as Mirant Corporation, claiming he was entitled to a promised severance payment. The trial court granted summary judgment to GenOn. King appeals, arguing that a state court erred in transferring the case to superior court and that the superior court erred in granting summary judgment to GenOn. Because the transfer issue was not preserved for appellate review and under the terms of the contract King was not entitled to a severance payment, we affirm.

1. Transfer to superior court.

After dismissing his initial complaint, King filed the instant renewal action in the State Court of Fulton County. GenOn filed an answer and counterclaim for reformation of the contract. GenOn moved to transfer the case to superior court on the ground that the state court did not have jurisdiction over its equitable counterclaim. The state court granted the motion and transferred the case to superior court. In superior court, both parties moved for summary judgment. While King argued that he was entitled to summary judgment on GenOn’s counterclaim, he never objected to the transfer from state to superior court and certainly never obtained a ruling from the superior court on that issue.

We are a court for correction of errors below, and, in the absence of a ruling by the trial court, this court has nothing to review. Hart v. Groves, 311 Ga. App. 587, 588 (1) (716 SE2d 631) (2011).

But [King] failed to object below about this specific [transfer] issue and thus did not give the trial court opportunity to correct the alleged error. . . . Generally, no matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. That is, a party cannot ignore that which he or she thinks to be error, take a chance on a favorable outcome, and complain later.

Lamb v. Javed, 303 Ga. App. 278, 280 (1) (692 SE2d 861) (2010) (citations, punctuation and emphasis omitted). Because he acquiesced in the transfer of the case to the superior court, King cannot now complain.

2. Summary judgment.

King contends that the trial court erred in its summary judgment ruling on his claim for the severance payment, arguing that because his employment was terminated within a guaranteed two-year period he was entitled to the payment. However, as the trial court correctly found, even though King was transferred from one affiliated employer to another within the two-year period, he was continuously employed until after the end of that period and therefore the severance payment obligation was not triggered.

On appeal from the grant or denial of summary judgment, we apply a de novo standard of review. 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.

Zurich American Ins. Co. v. Heard, 321 Ga. App. 325, 326 (740 SE2d 429) (2013) (citation and punctuation omitted).

So viewed, the evidence shows that in 2004, King was hired by Mirant Corporation, and his job duties included supporting the operation of power-generating assets in the Caribbean. In 2007, in order to facilitate a sale of its Caribbean assets to a company called Marubeni Corporation, Mirant approached King about becoming an employee of Marubeni. In connection with that change of employers, Mirant promised to make a defined payment to him if his employment with Marubeni and its affiliates was terminated within two years of the sale. The written agreement, set forth in a July 26, 2007 letter from Mirant to King, provides:

In return for your agreement to work for Marubeni Corporation following Mirant Corporation’s (“Mirant’s” or “the Company’s”) sale of its Caribbean investments to Marubeni and its affiliates (collectively referred to as “Marubeni”), which has helped facilitate this transaction on behalf of the Company, the Company has decided that, should your employment with Marubeni terminate for any reason other than voluntarily, by death, or for cause (including performance) within two years of the Closing Date of the sale, Mirant will pay you $110,389 minus an amount equal to any gross severance payment you receive from Marubeni, less applicable deductions for federal, state and local taxes and with-holdings. This payment will be made within 30 business days following delivery of proof of termination of your employment by Marubeni, including the reasons therefore and the terms of any severance payments received or to be received from Marubeni, and after execution by you of a general release of claims against Mirant.

The sale of Mirant’s Caribbean assets closed on August 9, 2007. And King went to work for a subsidiary of Marubeni Corporation called Marubeni Caribbean Power Holdings, Inc. (“MCPH”). In 2009, Marubeni Corporation sold half of its Caribbean power portfolio to a company called TAQAAbu Dhabi National Energy Company PJS. Marubeni Corporation and TAQA each owned 50 percent of the new company called MaruEnergy Caribbean Ltd. (“MCL”). On March 12, 2009, King’s supervisor at MCPH, Seiji Kawamura, notified King by two letters that his employment with MCPH was ending, but that he would immediately be employed by MCL under the same terms as his job with MCPH. In one letter, Kawamura, writing as a senior vice president of MCPH, stated:

As you know, as a result of a transaction with TAQA Abu Dhabi National Energy Company PJS, Marubeni has sold a portion of its ownership interest in its assets [in] the Caribbean. As a result, your employment with MCPH will end as of March 18, 2009. However, we understand that you will be offered immediate employment with the new entity, MaruEnergy Caribbean Ltd. (MCL), as of that same date, on the same terms and conditions as you had with MCPH, including recognition of your length of service with MCPH.

In the other letter, Kawamura, then writing as a senior vice president of MCL, stated: “We would like to offer you employment as of March 18, 2009, with MaruEnergy Caribbean Ltd. (MCL) on all of the same terms and conditions as you had with Marubeni Caribbean Power Holdings, Inc. (MCPH), as defined in your signed agreement with MCPH.” King accepted the offer, left MCPH and started with MCL on the same day, with no break in his employment or compensation. The physical location of his job remained the same. A few months later, MCL changed its name to Marubeni TAQA Caribbean, Ltd. (Marubeni TAQA).

King claims that he is entitled to the severance payment from Mirant set forth in the 2007 letter-agreement because his employment with MCPH ended on March 18, 2009, which was within the designated two-year period. We disagree.

Contract construction is generally a question of law for the court. We follow a three-step process in construing a contract, first determining if the contract language is clear and unambiguous. When a contract contains no ambiguity, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. If, however, the contract is unclear, we attempt to resolve the ambiguity by applying the rules of contract construction. Where the contract remains ambiguous even after we apply the rules of construction, then the parties’ intent must be determined by the factfinder. Ambiguity exists when a contract is uncertain of meaning, duplicitous, and indistinct, or when a word or phrase may be fairly understood in more than one way. Under Georgia law, words in a contract generally bear their usual and common meaning and the usual and common meaning of a word may be supplied by common dictionaries.

Global Ship Systems v. Continental Cas. Co., 292 Ga. App. 214, 215-216 (1) (663 SE2d 826) (2008) (citations and punctuation omitted).

In this case, the letter-contract was clear and unambiguous in providing that “Marubeni” referred collectively to “Marubeni and its affiliates.” The contract was further clear and unambiguous in providing that King was entitled to the severance payment only if his employment with Marubeni and its affiliates terminated within the applicable two-year period for any reason other than three specified circumstances that do not apply to this case. However, the contract was unclear in that it did not define the term “affiliates.”

Thus, the trial court correctly determined the usual and common meaning of this word as supplied by Black’s Law Dictionary. As the trial court found, the seventh edition of Black’s Law Dictionary defined “affiliate” as a “corporation that is related to another corporation by shareholdings or other means of control; a subsidiary, parent, or sibling corporation.” The trial court further noted that this same definition is set forth in the eighth edition of the dictionary that was in effect when the contract in question was drafted. Indeed, in another case involving the word “affiliate,” this court, after noting that dictionaries may supply the plain and ordinary meaning of a word in a contract, found that “[according to Black’s Law Dictionary, the term ‘affiliate’ ‘signifies a condition of being united; being in close connection, allied, associated, or attached as a member or branch.’ ” Harkins v. CA 14th Investors, 247 Ga. App. 549, 550 (544 SE2d 744) (2001). Given this usual and common meaning of the word, the trial court correctly found that MCL, later named Marubeni TAQA, was an affiliate of Marubeni because of its ownership interest in the company. The two companies were thus related, associated and in close connection based on this common ownership.

Furthermore, as previously noted, the plain language of the severance agreement unambiguously provided that King was entitled to the severance payment only if his employment with Marubeni and its affiliates terminated within the two-year period. However, the undisputed facts show that King’s employment with Marubeni and its affiliates was not terminated within the two-year period. On the contrary, King was continuously employed by Marubeni and its affiliates during the applicable time period. Although his employment with one affiliate, MCPH, ended, he was immediately employed under the same terms and conditions by another Marubeni affiliate, MCL (later known as Marubeni TAQA), without any gap or interruption to his employment. As the trial court concluded,

Decided July 10, 2013

Reconsideration denied July 29, 2013.

Joseph H. King, Jr., for appellant.

King’s transfer from MCPH to Marubeni TAQA did not trigger Mirant’s obligation under the Contract. Based on the undisputed facts, King was employed by “Marubeni and its affiliates” (either MCPH or Marubeni TAQA) for more than two years; Mirant has not breached the Contract and does not owe King the Severance Pay.

Accordingly, the trial court did not err in granting summary judgment to GenOn, and denying summary judgment to King, on the breach of contract claim. See generally Burns v. Reves, 217 Ga. App. 316, 318 (1) (457 SE2d 178) (1995) (construction of a contract is a matter of law for the court that is well-suited to adjudication by summary judgment).

3. Counterclaim for reformation.

King claims that the trial court erred in failing to grant his motion for summary judgment on GenOn’s counterclaim for reformation of the contract. However,

we cannot reach that issue because the trial court did not address the merits of his motion, but merely denied it as moot. Our review is limited to the scope of the ruling in the trial court as shown by the trial record; therefore, considering the merits of [that] motion for summary judgment is beyond the scope of our review.

McGonigal v. McGonigal, 294 Ga. App. 427, 430 (3) (669 SE2d 446) (2008).

Judgment affirmed.

Doyle, R J., and Boggs, J., concur.

Friend, Hudak & Harris, Benjamin M. Byrd, Michael S. Reeves, for appellee.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A13A0349.
    WILLESEN v. ERNEST COMMUNICATIONS, INC.
    (746 SE2d 755)
   Branch, Judge.

Marvin G. Willesen, d/b/a 2W Communications (“2W”) filed suit against Ernest Communications, Inc. (“ECI”) for commissions allegedly due under a contract between the parties. 2W now appeals from orders granting ECI’s motion for a directed verdict and denying 2W’s motion for a new trial. Specifically, 2W contends that the trial court erred in finding (i) that the contract’s exculpatory clause barred 2W’s claim for payment of its earned commissions and (ii) that 2W had failed to prove its damages. We agree and therefore reverse the trial court’s orders.

The record shows that ECI is a telecommunications carrier authorized by both the FCC and a number of state public utility commissions to provide and sell telecommunication services to the public. On March 1, 2004, 2W and ECI entered into an “ECI Authorized Sales Agent Agreement.” Under that agreement, 2W agreed to market and sell ECI’s services to third parties (referred to by the parties as “end users”), and ECI agreed to pay 2W a commission on the services it sold. Additionally, the agreement granted ECI the right to terminate the agreement “without cause at any time by providing [2W] at least one (1) month prior written notice.” With respect to 2W’s sales commissions, the agreement provides, in relevant part:

ECI will send an invoice to each End User . . . each month detailing the End Users charges for the Service(s)____These invoices shall direct End Users to remit payments directly to ECI. An End User’s payment shall be applied to the End User’s oldest applicable outstanding invoice. . . . Within ten (10) business days after the End User invoices are distributed to End Users by ECI, ECI shall forward a monthly commission statement to Sales Agent [2W].... Commission payments shall be paid by ECI to Sales Agent within thirty (30) days after the date of the corresponding monthly statement. ECI will hold all commission payments on any End User accounts that are more than 30 days past due. Once an End User’s accounts [are] brought current, the supporting details and commission payments associated with that End User’s account will be reflected on the Sales Agent’s next monthly commission statement____ECI will continue to pay commissions to Sales Agent on any new or existing End User accounts attributable to Sales Agent provided the End User remains an ECI customer, including after termination or expiration of this Agreement.

The agreement also contains an exculpatory clause, captioned “Limitation of Liability,” that provides:

Sales Agent acknowledges that service provisioning failures and service interruptions in the telecommunications industry frequently are due to circumstances beyond a carrier’s normal control and are difficult to assess as to cause or resulting damages. Accordingly, Sales Agent’s sole remedy for ECI’s failure or inability to perform its obligations under this Agreement shall be to terminate this Agreement. ECI MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, CONCERNING ITS TELECOMMUNICATIONS SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. IN NO EVENT SHALL ECI BE LIABLE TO SALES AGENT OR TO ANY END USERS FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGESARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY ITEMSORSERVICESFORNISHEDHEREUNDER,WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT..., STATUTORY, OR ANY OTHER LEGAL THEORY. ECI’S OBLIGATIONS TO ANY END USER ARE LIMITED BY ITS ORDER FORMS, AGREEMENTS AND APPLICABLE FEDERAL AND STATE TARIFFS.

(Emphasis in original.)

Sometime in or around late 2007, a dispute arose between 2W and ECI regarding commissions owed 2W on the accounts of two corporate customers to whom 2W had sold ECI’s services. As a result of this dispute, ECI terminated its agreement with 2W on February-26, 2008. After ECI refused to pay any further commissions on the disputed accounts, 2W filed this lawsuit, seeking to recover those commissions. The case proceeded to trial in March 2012. To prove the amount of commissions it was allegedly owed, 2W introduced evidence showing the amounts that had been billed to the two disputed clients between December 2007 and March 2012 and the commission that would be owed on those billed amounts under the terms of the parties’ agreement.

At the close of 2W’s case, ECI moved for a directed verdict on two grounds. First, ECI argued that 2W had failed to prove its damages because it had shown only the amounts billed to the disputed clients, but had failed to show that the clients had, in fact, paid those bills. And according to ECI, no commissions were earned under the contract unless and until the end user paid the bills; thus, because 2W had failed to show that the bills had been paid, it had failed to prove that it had earned a commission on the billed amounts. Additionally, ECI argued that the agreement’s exculpatory clause barred 2W from suing to recover any unpaid commissions owed it under the contract. The trial court agreed with both of ECI’s arguments, and granted a directed verdict in its favor.

Following the entry of the written order granting ECI a directed verdict, 2W filed a motion for a new trial, which was denied. This appeal followed.

1. The questions presented by this appeal require us to interpret the contract between the parties. The interpretation of a contract is normally a question of law to be resolved by the court, and the orders of the lower court in this case are therefore subject to de novo review. Goody Products v. Dev. Auth. of City of Manchester, 320 Ga. App. 530, 535 (2) (740 SE2d 261) (2013). This review requires us first to decide whether the contract provisions at issue are ambiguous. Id. If there is no ambiguity, then we simply enforce the contract according to its terms. Holmes v. Clear Channel Outdoor, 284 Ga. App. 474, 476 (2) (644 SE2d 311) (2007). Where an ambiguity exists, however, we resolve that ambiguity by applying the statutory rules of construction to ascertain the intent of the parties. Garrett v. Southern Health Corp. of Ellijay, 320 Ga. App. 176, 182 (1) (739 SE2d 661) (2013); OCGA § 13-2-2. Those rules require us to interpret any isolated clauses and provisions of the contract in the context of the agreement as a whole, Jones v. Destiny Indus., 226 Ga. App. 6 (2) (485 SE2d 225) (1997); to construe any ambiguities most strongly against the party who drafted the agreement, Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532 (397 SE2d 692) (1990); and to give the contract a “reasonable construction that will uphold the agreement rather than a construction that will render the agreement meaningless and ineffective.” (Citation omitted.) McLendon v. Priest, 259 Ga. 59, 60 (376 SE2d 679) (1989).

2. We first address whether the contract’s exculpatory clause bars 2W from suing to recover any unpaid commissions owed it under the contract. We find that it does not.

In analyzing this issue, we note that “because exculpatory clauses may amount to an accord and satisfaction of future claims and waive substantial rights, they require a meeting of the minds on the subject matter and must be explicit, prominent, clear and unambiguous.” (Citation and punctuation omitted.) Holmes, supra at 477 (2). Moreover, because the contract at issue is a form agreement created by ECI, any ambiguity in the exculpatory clause must be construed against ECI. Id. Additionally, the clause must be read in the context of the contract as a whole, bearing in mind the essential purpose of that contract. Garrett, supra at 188 (3) (a). In this case, the essential purpose of the contract was to make 2W an authorized sales agent of ECI. Thus, 2W agreed to market and sell ECI’s services and, in exchange, ECI agreed to compensate 2W for its successful efforts.

Bearing in mind the essential purpose of the contract, we now turn to the exculpatory clause. That clause contains five sentences; ECI, however, relies on only one sentence to support its argument that the clause prevents 2W from seeking to recover the unpaid commissions it is owed under the contract. And in making this argument, ECI takes the sentence out of context, i.e., it does not read that sentence in conjunction with the remainder of the exculpatory clause or in the context of the entire contract. When placed in context, however, it becomes clear that the exculpatory clause does not preclude the claims asserted by 2W in this case.

Notably, the exculpatory clause begins by stating:

Sales Agent acknowledges that service provisioning failures and service interruptions in the telecommunications industry frequently are due to circumstances beyond a carrier’s control and are difficult to assess as to cause or resulting damages. Accordingly [i.e., because of the facts acknowledged in the preceding sentence], Sales Agent’s sole remedy for ECI’s failure or inability to perform its obligations under this Agreement shall be to terminate this Agreement. ECI MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, CONCERNING ITS TELECOMMUNICATIONS SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.

(Emphasis supplied.) Additionally, the fifth and final sentence of the exculpatory clause provides: “ECI’S OBLIGATIONS TO ANY END USER ARE LIMITED BY ITS ORDER FORMS, AGREEMENTS AND APPLICABLE FEDERAL AND STATE TARIFFS.”

When read together, it is clear that these four sentences of the exculpatory clause are intended to shield ECI from claims arising from service provisioning or equipment failures and service interruptions. Indeed, ECI’s brief implicitly concedes this fact, as its analysis fails even to acknowledge these four sentences. Instead, ECI focuses solely on the language of the clause’s fourth sentence, which provides:

IN NO EVENT SHALL ECI BE LIABLE TO SALES AGENT OR TO ANY END USERS FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY ITEMS OR SERVICES FURNISHED HEREUNDER, WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT..., STATUTORY, OR ANY OTHER LEGAL THEORY.

(Emphasis supplied.)

Ignoring the remainder of the exculpatory clause, ECI argues that this one sentence, read in isolation, bars 2W’s claim for unpaid commissions because such amounts represent either special damages or lost profits. When the entire clause is read together and considered as part of the contract as a whole, however, its purpose is clear: it is designed to limit ECI’s liability to both its sales agent and any end users where the basis for that liability is ECI’s failure and/or inability to provide the telecommunications services sold by the sales agent to end users, or from any deficiencies in that service.

Moreover, to the extent that the phrase “IN NO EVENT,” found at the beginning of the fourth sentence, creates some ambiguity as to whether the exculpatory clause was intended to allow ECI to default on the payment of commissions owed its sales agents, that ambiguity must be construed against ECI. And because the sentence is at best ambiguous, it must also be construed narrowly. See Holmes, supra at 477 (2). In other words, the fourth sentence of the exculpatory clause, particularly when read in the context of the entire clause and the contract as a whole, fails to clearly and unambiguously inform the sales agent that it is waiving its right to receive any payment under the contract, should ECI decide that defaulting on its payment obligation was in ECI’s best interests. Accordingly, we find that the exculpatory clause does not bar actions such as this one, where a sales agent is attempting to recover the commissions owed it under the contract. See id.

Our interpretation of the exculpatory clause is supported by the rule that “a contract should be given a reasonable construction that will uphold the agreement rather than a construction that will render the agreement meaningless and ineffective.” McLendon, supra at 60; see also Azzouz v. Prime Pediatrics, 296 Ga. App. 602, 605 (1) (a) (675 SE2d 314) (2009). The interpretation of the exculpatory clause advocated by ECI would, in essence, destroy the contract, as it would cause the agreement to fail for lack of mutual consideration. This is because under ECI’s interpretation, the sales agent could potentially receive no compensation for performing under the contract. As this Court has previously held:

Where an instrument in writing, purporting to be a bilateral contract, contains mutual promises, which without more and when taken independently of certain subsidiary provisions in the instrument would render the instrument valid as a contract, such subsidiary provisions will not, unless their terms imperatively demand it, be given a construction that will nullify and completely destroy the entire obligations of either party under the instrument and thus render the instrument lacking in mutuality and void.

(Citation and punctuation omitted.) Hardnett v. Ogundele, 291 Ga. App. 241, 243-244 (1) (661 SE2d 627) (2008). Accordingly, we decline to interpret the exculpatory clause as relieving ECI of its obligation to pay 2W for its services. Id. See also Homelife Communities Group v. Rosebud Park, LLC, 280 Ga. App. 120, 122 (633 SE2d 423) (2006) (in interpreting ambiguities in a contract, “the construction which will uphold a contract in whole and in every part is to be preferred, and ... a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless”) (citations and punctuation omitted).

Finally, we are unpersuaded by ECI’s reliance on our prior decision in Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641 (490 SE2d 124) (1997). That case involved an executory contract under which the appellee, MRP, would be paid a certain amount each month for servicing MRI machines owned by the appellant, Imaging Systems. The contract was for a period of three years, but Imaging Systems terminated the contract early, and in violation of the contract’s notice provisions. Id. MRP sued, seeking to recover all of the monthly payments it would have received if the contract had run for the entire term. This Court reversed the judgment entered in favor of MRP, finding that its claim represented lost profits, and was therefore barred by the contract’s exculpatory clause. Id. at 644-645. Based on this holding, ECI argues that we are obligated to find that the exculpatory clause in this case bars 2W’s claim for direct damages. We disagree, as both the contract and the exculpatory clause at issue differ from those construed by the court in Imaging Systems.

Unlike the clause at issue here, which protects only ECI, the clause in Imaging Systems was mutual, in that it protected both parties from liability. This mutuality, together with the fact that the exculpatory clause had been drafted by MRP (the party seeking payment), supported the conclusion that MRP had knowingly waived its right to payment in the event of a breach by Imaging Systems. Additionally, the clause was short and direct; it was comprised of a single sentence. And its language left no doubt that it excluded recovery of damages of any kind, regardless of whether they were direct or consequential. Although the language relied on by ECI and the trial court in this case is similar to the language at issue in Imaging Systems, it represents but part of a single sentence in the exculpatory clause. As explained above, therefore, it must be read in conjunction with the other language found in the exculpatory clause. And when so read, it becomes clear that the purpose of the exculpatory clause was to protect ECI from damages resulting from its failure or inability to provide telecommunications services and equipment.

Moreover, nothing in the Imaging Systems contract provided that MRP would be entitled to payment after the contract was terminated, even if it was terminated wrongfully. Conversely, the contract at issue in this case expressly provides that, even after the contract’s termination, 2W is entitled to continued commissions on accounts it brought to ECI while the contract was in effect. Furthermore, unlike the amounts sought by 2W, the amounts sought by MRP were not for services that had been provided, i.e., MRP was not seeking payments due for services already rendered. Finally, by interpreting the contract in that case as precluding MRP’s claim, the court in Imaging Systems did not render the contract void for lack of consideration. Instead, MRP received payment for all of the work it had done; the court’s decision merely meant that MRP could not recover for work it had not yet performed and was no longer obligated to perform. Here, on the other hand, ECI is asking us to interpret the contract so as to allow it to avoid having to provide any consideration for services already rendered. We do not believe that Imaging Systems requires us to interpret the contract so as to eviscerate it.

3. We next address whether the trial court erred in finding that 2W failed to present sufficient evidence of its damages. In reaching this conclusion, the trial court found that under the terms of the contract, 2W did not earn a commission unless and until the amounts billed to the disputed accounts were actually paid by the end user. Because 2W only presented evidence of the amounts billed to those accounts, however, and failed to show that those bills had been paid, the trial court concluded that 2W failed to prove the amount of its damages. We disagree.

In finding that 2W did not earn a commission unless and until the disputed clients had paid their bills, the trial court relied on the testimony of Marvin Willesen, 2W’s principal. On cross-examination, Willesen responded affirmatively when asked whether, under his understanding of the contract, “[i]n order for [2W] to earn a commission the customer had to actually pay the bill.” The trial court’s reliance on this testimony was error. While parol evidence as to a party’s understanding of the contract “is admissible to explain ambiguities and to aid in the construction of contracts, it is not admissible to contradict or construe an unambiguous contract.” (Footnotes omitted.) Coleman v. Arrington Auto Sales & Rentals, 294 Ga. App. 247, 249 (2) (669 SE2d 414) (2008). And as is discussed more fully below, the contract language at issue is not ambiguous. Thus, the trial court should have disregarded Willesen’s testimony to the extent that Willesen stated he understood the contract to mean something other than what the contract said. Safe Shield Workwear v. Shubee, Inc., 296 Ga. App. 498, 503 (3) (675 SE2d 249) (2009).

As noted above, with respect to commissions, the agreement provides, in relevant part:

Within ten (10) business days after the End User invoices are distributed to End Users by ECI, ECI shall forward a monthly commission statement to Sales Agent [2W]. . . . Commission payments shall be paid by ECI to Sales Agent within thirty (30) days after the date of the corresponding monthly statement. ECI will hold all commission payments on any End User accounts that are more than 30 days past due. Once an End User’s accounts [are] brought current, the supporting details and commission payments associated with that End User’s account will be reflected on the Sales Agent’s next monthly commission statement.

This language plainly and unambiguously establishes three facts. First, commission statements are forwarded to the sales agent ten days after bills are sent to the customer; logically, therefore, commissions are earned by 2W at least by the time ECI sends out its bill to the customer. Despite ECI’s argument to the contrary, there is nothing in the agreement that makes payment by the end user a condition precedent to the sales agent actually earning the commission. See Choate Constr. Co. v. Ideal Elec. Contractors, 246 Ga. App. 626, 628 (3) (541 SE2d 435) (2000) (“[conditions precedent, which are not favored in interpreting contracts, are created by language such as ‘on condition that,’ ‘if,’ and ‘provided,’ or by explicit statements that certain events are to be construed as conditions precedent”) (citation omitted); Gen. Steel v. Delta Bldg. Systems, 297 Ga. App. 136, 139 (1) (676 SE2d 451) (2009) (where a “contract’s terms are clear and unambiguous and do not clearly establish a condition precedent, a court cannot construe the contract to create one”) (punctuation and footnote omitted).

Second, ECI has the right to withhold payment of any earned commission if the account on which that commission was earned is delinquent by more than 30 days. Once the account is brought current, however, ECI must pay the sales agent the previously earned commission. Third, it is ECI who bears the responsibility for determining when accounts are past due and then informing the sales agent of that fact. Thus, unless and until ECI informs the sales agent that an account is past due, the sales agent may presume that it is entitled to payment of its earned commissions, i.e., the commissions of which it was notified ten days after the customer was billed.

Given the plain language of the agreement, 2W’s introduction of evidence showing the amounts that had been billed to the disputed accounts and the amount of commissions that would be owed on those bills was sufficient to prove the commissions it had earned, and was therefore presumptively owed, under the contract. At that point, the burden shifted to ECI to show what portion, if any, of those earned commissions was not yet payable because the accounts were past due. It is axiomatic that when a plaintiff offers evidence establishing the amount it has earned under a contract and the defendant disputes that amount, the burden is on the defendant to prove the amount by which the plaintiff’s damages should be reduced. See Leventhal v. Setter, 208 Ga. App. 158, 163-164 (6) (430 SE2d 378) (1993) (defendant failed to come forward with evidence showing why the amount of contractual damages should be reduced; therefore, no error in awarding the plaintiff the entire amount due); Lamb v. Decatur Fed. Sav. & Loan Assn., 201 Ga. App. 583, 587 (2) (411 SE2d 527) (1991) (in a breach of contract action, the burden falls on the breaching party, as a defensive matter, to prove that plaintiff’s damages should be reduced). ECI, however, came forward with no such evidence.

Decided July 16, 2013

Reconsideration denied July 29, 2013

Steven W. Hardy, for appellant.

Andersen, Tate & Carr, Elizabeth L. Clack-Freeman, Donald L. Swift III, for appellee.

Given that 2W produced evidence from which the jury could calculate 2W’s damages with a reasonable certainty, the trial court erred in directing a verdict in favor of ECI. See Dickey v. Clipper Petroleum, 280 Ga. App. 475, 479 (4) (634 SE2d 425) (2006) (“[a] trial court may not grant a motion for directed verdict based on a failure of proof of damages unless there is ‘a complete absence of any competent evidence on this issue’ ”) (citation and footnote omitted).

For the reasons set forth above, we reverse the orders of the trial court granting a directed verdict in favor of ECI and denying 2W’s motion for a new trial. The case is remanded for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Phipps, C. J., and Ellington, P. J., concur.

       The formula for calculating the amount of commissions that 2W would be owed was set forth in a separate schedule attached to and made a part of the parties’ agreement. Even after the termination of the contract, 2W is entitled to receive continued commissions on any account it brought to ECI during the term of the agreement.

       As best we can tell from the record, no commissions were paid to 2W on the accounts at issue after November 2007.

       That clause provided: “LIMITATION OFLLtBILITTNEITHER THE CUSTOMER NOR MRP WILL BE LIABLE TO EACH OTHER OR ANY OTHER PARTY FOR ANY LOST PROFITS ORANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT.” Imaging Systems, supra at 642 (1).

       We also note that 2W’s evidence, which showed that ECI had served and billed the disputed accounts for more than four years, was sufficient to allow the jury to infer that the accounts had been kept current. As a general rule, jurors are authorized to make such reasonable inferences and reasonable deductions as ordinarily prudent persons would make in light of their everyday experience and knowledge of human conduct and behavior. See Canty v. State, 318 Ga. App. 13, 14 (1) (733 SE2d 64) (2012); Fortis Ins. Co. v. Kahn, 299 Ga. App. 319, 323 (2) (a) (683 SE2d4) (2009). In our view, the average juror will have had sufficient experience with telecommunications companies to allow them to determine whether such a company would continue to provide services to a customer who was more than 30 days delinquent on its account.


author: Ray, Judge. BARNES, Presiding Judge,

text:
    A13A0368.
    ONI v. ONI.
    (746 SE2d 641)
   Ray, Judge.

Adedamola Olagoke Oni (“Dr. Oni”) is the adoptive father of twins born to Cassondra Oni (“Ms. Oni”). The trial court granted Ms. Oni’s motion to set aside the final decree of adoption, and Dr. Oni appeals. He alleges that the trial court erred in: (1) denying his motion to dismiss as untimely Ms. Oni’s petition to set aside the adoption decree; (2) granting Ms. Oni’s petition to set aside on its merits; and (3) removing custody of the children from him and granting temporary custody to Ms. Oni. Because we are constrained to agree that the trial court erred, we must reverse the judgment and remand the case.

Ms. Oni met Dr. Oni in 2009 when she went to his medical office in Chattanooga, Tennessee, where she received treatment. Shortly thereafter, he offered her a job which ultimately never materialized, but she began spending three or four days a week at his home in Roswell. The parties began a romantic and sexual relationship.

The parties discussed the possibility that Dr. Oni would adopt the twins, who were not his biological children. Ms. Oni and her then three-year-old twins moved into Dr. Oni’s home on a permanent basis in April 2010. One month prior to that move, in March 2010, Ms. Oni and the twins’ natural father had surrendered their parental rights to facilitate the twins’ placement for adoption.

Ms. Oni signed a notarized, witnessed “Surrender of Rights Final Release for Adoption Notice to Parent or Guardian” which, inter alia, provided that she was “surrendering all of [her] right ... to the children identified herein, so as to facilitate the children’s placement for adoption,” and that she agreed to “relinquish absolutely all parental control over the children.” In this document, she also agreed that Dr. Oni “may initiate legal proceedings for the legal adoption of the children without further notice to me. I do, furthermore, expressly waive any other notice or service in any of the legal proceedings for the adoption of the children.” She also signed a notarized, witnessed “Acknowledgment of Surrender of Rights” which, inter alia, provided that she was executing a “full, final, and complete surrender, release, and termination of all of my rights to the children”; that she had an “unconditional right to revoke the surrender” within ten days, and that after that time, she had “no right to revoke the surrender”; that all her questions regarding the effect of the surrender had been satisfactorily explained; that she had an opportunity to consult with an attorney prior to the execution of the surrender; and that she was voluntarily and intentionally surrendering her rights.

Austin Buerlein, the attorney who handled the proceeding on behalf of Dr. Oni, signed two notarized affidavits attesting that he explained the documents to Ms. Oni, explained that she had ten days to revoke her consent, and explained that once the adoption occurred, it would be final. The record also contains a letter that Buerlein sent to the Georgia Department of Human Resources’ State Adoption Unit, dated March 29, 2010, and copied to Ms. Oni. This letter states that it encloses Ms. Oni’s surrender documents and that Dr. Oni “will be filing his Petition for Adoption in the Superior Court of Fulton County this week.” A final decree of adoption was granted to Dr. Oni on August 24, 2010.

Nearly a year after the adoption was finalized, Ms. Oni moved to set it aside, alleging in a verified petition that the final order was procured through fraud and duress. She alleged that Dr. Oni told her this would be an “open” adoption, and that she would live with him and the children until she and Dr. Oni married at some later date. She alleged that she was told that the relinquishment of rights she signed was “temporary.” Ms. Oni, who completed her GED and has taken some college courses, acknowledged reading and signing the surrender of parental rights documents outlined above.

Dr. Oni testified that he did not tell Ms. Oni that they would have a relationship going forward, and while he acknowledged having a sexual relationship with her, he testified that she lived with him to help the children transition to his care. Dr. Oni did not disclose to the trial court his relationship with Ms. Oni or the parties’ living arrangement prior to the entry of the adoption decree.

Ms. Oni alleged that between January and March 2011, she only saw the children for five minutes at a time because Dr. Oni kept the children from her and that she last saw the children on Mother’s Day, May 8, 2011. In November 2011, Dr. Oni sent the children to live with his family in Africa, and Ms. Oni did not know where they were. They returned to the United States shortly before the hearing in this case.

In asserting fraud, Ms. Oni alleged that Dr. Oni lied to her and took steps to prevent her from discovering that the adoption had been finalized, and that she did not learn of the adoption until she attended a child support hearing against the biological father in a Tennessee court in May 2011. ANovember 16, 2010, e-mail in the record sent by Ms. Oni’s mother to the law firm that employed adoption attorney Buerlein, however, stated that Dr. Oni was involved in a “scheme” to adopt her grandchildren and that Ms. Oni learned of the adoption when she called the Tennessee court about the biological father’s child support hearing in October 2010. The e-mail mentioned appealing the adoption to both the Georgia and Tennessee courts. At the hearing in the instant case, however, Ms. Oni and her mother both testified that Ms. Oni did not know about the adoption until May-2011. Ms. Oni filed her motion to set aside the adoption on July 1, 2011. After a hearing, the trial court granted the motion and denied Dr. Oni’s motion to dismiss. Dr. Oni appeals.

1. Dr. Oni alleges that the trial court erred in granting the motion to set aside the adoption because the action was time-barred. Because the language of the statute is unequivocal, we must agree.

OCGA § 19-8-18 (b) provides, in pertinent part, that the trial court shall enter a decree of adoption if it is satisfied that each living parent of the child has surrendered all rights to the child in the manner provided by law prior to the filing of the adoption petition, that the adoptive parent was capable of assuming responsibility for the child, and that the adoption was in the child’s best interest. Here, the trial court entered such a decree. OCGA § 19-8-18 (e) provides that “[a] decree of adoption issued pursuant to subsection (b) of this Code section shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.”

Ms. Oni challenged the August 24, 2010, adoption decree on July 1, 2011, approximately ten months after its entry. She argues on appeal that Dr. Oni committed fraud in concealing the adoption decree from her and that OCGA § 19-8-18 (e)’s six-month time bar in which to challenge an adoption should thus be tolled.

In resolving this issue, we look to the literal language of the statute [ ], the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute [ ] so as to give effect to the legislature’s intent. But as our Supreme Court has instructed, the search for legislative intent must begin with the words of the statute, and if those words are clear and unambiguous, the search also must end there. Put another way, when we consider the meaning of a statute, we must presume that the legislature meant what it said and said what it meant. We cannot substitute judicial interpretation language of our own for the clear, unambiguous language of the statute, so as to change the meaning.

(Punctuation and footnotes omitted.) Collins v. Davis, 318 Ga. App. 265, 268 (1) (733 SE2d 798) (2012). Without reaching the merits of Ms. Oni’s fraud claim, we find unequivocal OCGA § 19-8-18 (e)’s provision that a decree of adoption as outlined above “shall not be subject to any judicial challenge filed more than six months after the date of entry.” (Emphasis supplied.) Ms. Oni’s argument that this Court contemplated that fraud might toll OCGA § 19-8-18 (e)’s six-month bar in Williams v. Williams, 312 Ga. App. 47 (717 SE2d 553) (2011), is unavailing. The Williams decision did not reach the issue of tolling because the party in that adoption dispute had not alleged active deception preventing knowledge of or challenge to the adoption decree in the six months following the decree’s entry. Id. at 48. Williams gives us no authority to circumvent the clear language of the statute. See also Kirby v. Kirby, 165 Ga. App. 163, 163 (300 SE2d 192) (1983) (in a case predating the enactment of OCGA § 19-8-18 (e)’s six-month bar, this Court refused to allow fraud to toll the three-year time limit in Code Ann. § 81A-160 (f), now OCGA § 9-11-60 (f), for moving to set aside a judgment granting an adoption decree).

Because the language of OCGA § 19-8-18 (e) brooks no exception, we reverse. In so doing, we render a purely procedural determination based on the dictates of the legislature, and such a decision raises the question of whether the legislature’s intent in enhancing stability for adopted children by enacting such a time bar deserves reconsideration to accommodate circumstances such as fraud and deception, as is alleged here. We make no determination as to whether other procedural avenues remain open to Ms. Oni under which she could seek custody, given the trial court’s grant of temporary custody to her. We remand this case to the trial court for proceedings not inconsistent with this decision, necessarily leaving to the trial court’s determination whether there are appropriate proceedings available to facilitate a transition of the children from Ms. Oni’s care to Dr. Oni’s care.

2. In light of our determination in Division 1, we need not reach Dr. Oni’s other enumerations of error.

Judgment reversed and case remanded with direction.

Miller, J., concurs. Barnes, P. J., concurs specially.

BARNES, Presiding Judge,

concurring specially.

While I agree that the trial court must be reversed in this case, I do not agree with all that is said by the majority. The majority holds that the six-month time bar imposed by OCGA § 19-8-18 (e) cannot be tolled by fraud, and with that much I agree. However, I write separately to point out that under certain limited circumstances, the doctrine of equitable estoppel might preclude a defendant from asserting OCGA § 19-8-18 (e) as a defense.

In my view, OCGA § 19-8-18 (e) is best viewed as a statute of repose. A statute of repose, in contrast to a statute of limitation, “stands as an unyielding barrier to a plaintiff’s right of action” and is “absolute.” (Citation omitted.) Simmons v. Sonyika, 279 Ga. 378, 379 (614 SE2d 27) (2005). Consequently, a statute of repose cannot be tolled for any reason, including fraud. See id. at 380; Balotin v. Simpson, 286 Ga. App. 772, 773 (650 SE2d 253) (2007); Hill v. Fordham, 186 Ga. App. 354, 357-358 (2) (367 SE2d 128) (1988). “This is so because tolling would deprive a defendant of the certainty of the repose deadline and thereby defeat the purpose of a statute of repose.” (Punctuation and footnote omitted.) Balotin, 286 Ga. App. at 773.

Significantly, “[notwithstanding this bright-line rule,” the Supreme Court of Georgia and this Court have “found that, in certain narrow circumstances, a defendant may be equitably estopped from raising the statute of repose as a defense.” Balotin, 286 Ga. App. at 773. See Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 659 (3) (437 SE2d 308) (1993); Wilhelm v. Houston County, 310 Ga. App. 506, 509 (1) (c) (713 SE2d 660) (2011); Esener v. Kinsey, 240 Ga. App. 21, 23 (522 SE2d 522) (1999); Hill, 186 Ga. App. at 358 (2). See also Rosenberg v. Falling Water, Inc., 289 Ga. 57, 60-61 (709 SE2d 227) (2011) (discussing context in which doctrine of equitable estoppel can be applied with respect to statutes of repose).

[A]n equitable estoppel is based on the ground of promoting the equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth.

(Citation omitted.) Hollifield v. Monte Vista Biblical Gardens, Inc., 251 Ga. App. 124, 127 (1) (a) (553 SE2d 662) (2001).

Although fraud will not toll a statute of repose,

if the evidence of defendant’s fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the [trier of fact] to exist, then the defendant, under the doctrine of equitable estoppel, is estopped from raising the defense of the statute of ultimate repose.

Esener, 240 Ga. App. at 23. See Hill, 186 Ga. App. at 358 (2). See also Wilhelm, 310 Ga. App. at 509 (1) (c) (“[A] defendant maybe equitably estopped from raising the defense of the statute of repose if the plaintiff reasonably relied on a fraudulent act or statement by the defendant that occurred after the plaintiff’s injury accrued and, as a result of that fraud, the plaintiff did not file suit until after the repose period expired.”) (emphasis omitted). However, “the plaintiff must have acted diligently for equitable estoppel to be available, after the fraud was first discovered or should have been discovered.” Esener, 240 Ga. App. at 23.

Based on this precedent concerning equitable estoppel in the context of statutes of repose, I believe that a defendant may be equitably estopped from raising the defense of OCGA § 19-8-18 (e) if the plaintiff reasonably relied on a fraudulent act or statement by the defendant that occurred after entry of the adoption decree and, as a result of that fraud, the plaintiff did not file a motion to set aside the decree until after the six-month time period expired, so long as the plaintiff exercised due diligence after the fraud was first discovered or should have been discovered. While the majority asserts that the plain and unequivocal language of OCGA § 19-8-18 (e) brooks no exceptions, other statutes of repose have similarly broad language precluding suit after a designated time period. The language of OCGA § 19-8-18 (e) therefore is not so unique as to justify treating the statute differently from other statutes of repose. Accordingly, while the time bar imposed by OCGA § 19-8-18 (e) speaks in broad terms, I believe that the doctrine of equitable estoppel can still be applied if the circumstances warrant it.

Decided July 15, 2013

Reconsideration denied July 29, 2013

Kessler & Solomiany, Dennis G. Collard, William M. Ordway, David A. Webster, for appellant.

Wayne W. Dempsey, Jr., for appellee.

Nevertheless, I must concur with the majority’s decision to reverse the trial court in this case. The legal issue of equitable estoppel was neither raised nor ruled upon in the court below, and “[i]t is axiomatic that we will not resolve issues that were not raised and ruled upon by the trial court.” Home Depot U.S.A., Inc. v. Wabash Nat. Corp., 314 Ga. App. 360, 372 (5), n. 9 (724 SE2d 53) (2012). As we have explained,

[t]o consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.” Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.

(Citation, punctuation, and footnote omitted.) Safe Shield Workwear, LLC v. Shubee, Inc., 296 Ga. App. 498, 500 (2) (675 SE2d 249) (2009). For that reason, I concur in the judgment, but with the caveat that equitable estoppel might apply in a future case involving the application of OCGA § 19-8-18 (e). That question remains open for resolution at some later date.

       The parties are not married. Ms. Oni, previously Cassondra Tucker, took her name by petitioning for a name change.

       The decree was later amended to provide for a name change for the children.

       Therefore, the majority opinion decides only the issues in this case and may not he cited as binding precedent. See Court of Appeals Rule 33 (a).

       Other statutes of repose have similarly prohibitive language. Compare OCGA § 9-3-51 (a) (“No action to recover damages[ ] . . . shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.”) (emphasis supplied); OCGA § 9-3-71 (b) (“Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.”) (emphasis supplied); OCGA § 9-3-73 (c) (“Notwithstanding subsections (a) and (b) of this Code section, in no event may an action for medical malpractice be brought____”) (emphasis supplied).

       Our decision in Williams v. Williams, 312 Ga. App. 47 (717 SE2d 553) (2011) did not use the term “equitable estoppel,” but the decision contemplated that the six-month time bar imposed by OCGA § 19-8-18 (e) might not be invoked in cases of active deception by the defendant that prevented the plaintiff from learning of the adoption decree. See id. at 48 (“We note that April Williams did not allege that Jennifer Williams had engaged in any active deception during the six months following the entry of the adoption decree that prohibited April Williams from learning of that decree or bringing a challenge against it.”).

       See supra footnote 4.


author: Miller, Judge.

text:
    A13A0389, A13A0390.
    DONOHOE v. DONOHOE (two cases).
    (746 SE2d 185)
   Miller, Judge.

In these companion appeals, Michele Donohoe (the “mother”) appeals the trial court’s order denying her petition to modify custody of her two children and granting Jeffrey Donohoe’s (the “father”) petition to modify visitation. The mother contends that the trial court erred in considering matters not in the record; concluding that, as a matter of law, a custodial parent has a prima facie right to maintain custody in a modification proceeding; and denying her petition for modification of custody. The mother also contends that the trial court abused its discretion in granting the father’s petition to restrict the mother’s visitation. We reverse and remand because the trial court’s judgment was based upon an erroneous view of the law and consideration of matters outside of the record.

We will affirm a trial court’s decision on a petition to change custody if there is any reasonable evidence in the record to support it. See Mitcham v. Spry, 300 Ga. App. 386, 386-387 (685 SE2d 374) (2009). “When reviewing a child custody decision, this [C]ourt views the evidence presented in the light most favorable to upholding the trial court’s order.” (Footnote omitted.) Id. at 386.

So viewed, the evidence shows that the parties had two children. J. D. was born in December 2001, and S. D. was born in August 2004. The parties divorced in 2009, with the father being awarded physical custody of the children and the parties sharing joint legal custody. The parenting plan incorporated into the judgment set forth the mother’s visitation rights. The parenting plan also required that the father and the mother consult with each other regarding all major decisions relating to the children, and that, if the parties were unable to agree after “serious and meaningful” discussions, the father would have final decision-making authority.

In 2010, the father filed a petition for modification of custody to obtain sole custody of the children and to modify the mother’s visitation, alleging that the mother had spoken to the children about legal issues in the case, made numerous trips to the children’s school in violation of the visitation schedule, and engaged in conduct that disrupted the children’s schedule and activities. Thereafter, the mother filed a petition to modify custody and visitation, alleging that the father failed to consult with her about decisions relating to the children, the father interfered with her visitation schedule, and the father would not allow the children to spend any more time with her than the minimum provided under the parenting plan.

In February 2011, J. D. reported to his teacher that his father had grabbed his arm, slapped him, and punched him in the forehead. The incident was reported to the Department of Family and Children Services (“DFACS”). Following an investigation, DFACS closed the case when it found a lack of evidence to substantiate the claims of abuse. Later that year, in December 2011, J. D. told a counselor at school that his father had physically abused him. The incident was reported to DFACS, and DFACS dismissed the complaint.

The mother subsequently amended her petition for modification of custody and visitation to add claims that the father had physically abused J. D. and that S. D. had witnessed the abuse. The mother then filed a motion for subpoena of the DFACS records concerning J. D.’s reports that his father abused him. The mother filed the motion under OCGA § 49-5-41 (a) (2), asking the trial court to review the records to determine if the records were necessary to resolve any issues before the court and, if so, to release those records to the parties. The trial court did not rule on the mother’s motion.

At trial, there was no mention of the DFACS records, nor were they admitted into evidence. Additionally, no DFACS representative testified regarding the agency’s investigations into reports of abuse made against the father. Rather, through a school official, the parties elicited testimony that J. D. made two reports in 2011 that his father had physically abused him, DFACS was notified, and DFACS decided not to take action against the father.

Other evidence presented at the trial showed that while in the custody of their father, the children were excelling academically. J. D. was a straight A-student and achieved excellent marks on standardized tests. S. D. performed above her grade level and was placed in the gifted program at her school. The children also participated in numerous activities. S. D. played soccer, J. D. played baseball, and both took martial arts classes and piano lessons. While J. D. had exhibited some behavioral issues at school, these issues were resolved when J. D. received counseling at school. Numerous witnesses testified that the father was very attentive to the children’s needs, he had a great relationship with his children, and they had never seen him yell at or become physically abusive with his children.

Following the hearing, the trial court ordered that all provisions of the judgment of divorce remain intact with the exception that the mother’s visitation rights were restricted. Consequently, the trial court denied the mother’s petition for modification of custody and visitation, denied the father’s petition for modification of custody, and granted the father’s petition for modification of the mother’s visitation. In its order, the trial court noted that it had reviewed the DFACS records in camera. In a supplemental order, the trial court further noted that it had used the information gleaned from those DFACS reports in reaching its verdict. The trial court stated, however, that it did not release the DFACS records to the parties because neither party requested that they be admitted into evidence or be included in the trial court’s record, and neither party moved to preclude the trial court from considering these records.

1. The mother contends that the trial court erred because it misapplied the law in evaluating a petition for modification of custody and it considered matters not included in the record when reaching its verdict. We agree.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child.

(Punctuation omitted.) Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). “A trial court’s decision regarding a change in custody/visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion.” (Citation and punctuation omitted.) Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013). An abuse of discretion occurs where a ruling “is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law.” Mathis v. BellSouth Telecommunications, 301 Ga. App. 881 (690 SE2d 210) (2010); see also Watson v. Elberton-Elbert County Hosp. Auth., 229 Ga. 26, 27 (1) (189 SE2d 66) (1972) (a ruling of the trial court which is within the court’s discretion will be reversed where it “is based upon an erroneous view of the law”).

Here, the trial court erred in several respects. The trial court erred when it relied upon language from Ormandy v. Odom, 217 Ga. App. 780 (459 SE2d 439) (1995), in setting forth its authority to modify custody. Citing Ormandy, supra, 217 Ga. App. at 780-781 (1), the trial court stated:

In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. Ordinarily, the trial court should favor the parent having such a right. What the court must affirmatively find is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. It is a change for the worse in the conditions of the child’s present home environment rather than any purported change for the better in the environment of the non-custodial parent that the law contemplates under this theory. Although trial courts have wide discretion in change of custody proceedings, there are limits to that discretion.

In Bodne v. Bodne, 277 Ga. 445, 447 (588 SE2d 728) (2003), the Supreme Court of Georgia abolished the rule set forth in Ormandy that a custodial parent has a prima facie right to retain custody. Moreover, “when Bodne overruled [Ormandy] and abolished the prima facie right of the custodial parent, it follow [ed] that it also eliminated the requirement of showing a change for the worse.” (Punctuation omitted.) Weickert v. Weickert, 268 Ga. App. 624, 627 (1) (602 SE2d 337) (2004). To be clear, a trial court is authorized to modify custody where the evidence shows a change in material conditions that have a positive effect on the child’s welfare, as well as changes that adversely affect the child. See Lynch v. Horton, 302 Ga. App. 597, 601 (4) (692 SE2d 34) (2010). Consequently, to the extent the trial court relied upon Ormandy, it erred.

Decided July 8, 2013

Reconsideration denied July 29, 2013

Warner, Bates, McGough, McGinnis & Portnoy, Kathy L. Portnoy, for appellant.

The trial court also erred in considering matters outside of the record. The trial court expressly stated that it considered matters not included in the record in reaching its verdict. The DFACS records were never entered into evidence, and no one from DFACS testified. Consequently, the trial court erred in relying upon the DFACS records in reaching its verdict. See In the Interest of D. W., 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008) (trial court erred in referring to contents of psychological evaluation not included in the record); Scott v. State, 270 Ga. App. 292, 295 (2) (606 SE2d 312) (2004) (trial court improperly considered matters outside the record).

Moreover, the trial court erred in not addressing the mother’s request for the DFACS records. The mother’s motion under OCGA § 49-5-41 (a) (2) specifically requested that the trial court provide such records if it believed the records were necessary to resolve any issues before the court. Under OCGA § 49-5-41 (a) (2), a person “shall have reasonable access” to DFACS records if a court determines that access to such records may be necessary for determination of an issue before such court. Although the trial court considered the DFACS records in reaching its verdict, it declined to provide access to those records, erroneously believing that the parties had to request that the records be admitted into evidence or be included in the record. The plain language of the statute clearly required the trial court to provide the confidential records when it determined that the records were to be considered in resolving the issues before it.

Since the trial court’s judgment was based upon erroneous views of the law and its improper consideration of matters outside of the record, the trial court’s judgment is reversed and this case is remanded for further proceedings consistent with this opinion.

2. In light of our holding in Division 1, we need not address the mother’s other enumerations of error.

Judgment reversed and case remanded.

Barnes, P. J., concurs. Ray, J., concurs in judgment only.

Tucker, Everitt, Long, Brewton & Lanier, John B. Long, Smith & Smith, Beth A. Smith, for appellee.


author: McFADDEN, Judge.

text:
    A13A0413, A13A0596.
    MEADOW SPRINGS, LLC v. IH RIVERDALE, LLC et al.; and vice versa.
    (747 SE2d 47)
   McFADDEN, Judge.

The parties to this action have been in litigation for over a decade. The present appeal and cross-appeal are from a ruling on claims for slander of title and for tortious interference with business and with contractual relations. Those claims arise out of the filing, earlier in the litigation, of a lis pendens. The trial court rejected the argument that those claims should have been brought as compulsory counterclaims but granted summary judgment, disposing of them on the merits. We affirm.

The following relevant facts were set forth in a prior appeal involving the same parties.

In 2003, appellees [/cross-appellants] IH Riverdale and Geoffrey Nolan, a member of IH Riverdale, filed a complaint against appellant[/cross-appellee] Meadow Springs and others, alleging that certain of IH Riverdale’s rights regarding [a real estate deal known as] the Phase II development had been violated. More specifically, the complaint alleged that the defendants had deprived IH Riverdale of its right to invest in the Phase II development and sought specific performance of an alleged option to purchase 50% of the land involved in the Phase II development and the imposition of a constructive trust on the land and profits of that development. After filing that lawsuit, IH Riverdale filed a notice of lis pendens stating that the relief it was seeking involved the Phase II property. IH Riverdale delivered a copy of the lis pendens to Regions Bank, which then declined to fund an approved $9.7 million construction loan. ... In January 2005, Meadow Springs filed this action against IH Riverdale and Nolan, alleging that they had committed slander of title and [tortious interference with business and contractual relations] against it by filing the lis pendens and delivering it to Regions Bank.

Meadow Springs, LLC v. IH Riverdale, LLC, 286 Ga. 701, 702 (1) (690 SE2d 842) (2010).

IH Riverdale and Nolan moved for summary judgment as to Meadow Springs’ claims. Although the trial court rejected IH River-dale and Nolan’s argument that Meadow Springs should have brought its claims as compulsory counterclaims in response to the 2003 action, the trial court nevertheless granted them summary judgment based on the finding that there was insufficient evidence to create a genuine issue of material fact as to malice, an essential element of each of Meadow Springs’ claims.

In Case No. A13A0413, Meadow Springs appeals from the trial court’s grant of summary judgment; and in Case No. A13A0596, IH Riverdale and Nolan cross-appeal as to the trial court’s finding that Meadow Springs’ claims were not compulsory counterclaims. Because the trial court correctly found that there is no genuine issue of material fact as to the essential element of malice, we affirm the summary judgment in favor of IH Riverdale and Nolan. We also affirm the trial court’s ruling that Meadow Springs’ claims were not required to have been brought as compulsory counterclaims because they did not arise out of the same transaction or occurrence as the prior claims brought by IH Riverdale and Nolan.

Case No. A13A0413

1. Summary judgment.

Meadow Springs contends that the trial court’s grant of summary judgment must be reversed because the trial court erroneously reasoned that Meadow Springs had not pointed to evidence of “actual” malice. However, “[w]e review de novo a trial court’s grant of summary judgment. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” Travelers Excess and Surplus Lines Co. v. City of Atlanta, 297 Ga. App. 326 (677 SE2d 388) (2009) (citation omitted). Regardless of the propriety of the analysis employed, the trial court correctly concluded that there was no genuine issue of material fact as to malice.

[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Cowart v. Widener, 287 Ga. 622, 623-624 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted). Here, after IH Riverdale and Nolan pointed to an absence of evidence of the essential element of malice, Meadow Springs failed to point to specific evidence giving rise to a triable issue.

(a) Tortious interference with business and with contractual relations.

Tortious interference with business and with contractual relations are different torts, but they share several essential elements. NationsBank v. SouthTrust Bank of Ga., 226 Ga. App. 888, 892 (1) (487 SE2d 701) (1997); Renden, Inc. v. Liberty Real Estate Ltd. Partnership III, 213 Ga. App. 333, 334 (2) (444 SE2d 814) (1994). The common elements of tortious interference with business relations and tortious interference with contractual relations are that “the defendant: (1) acted improperly and without privilege; (2) acted purposefully and maliciously with the intent to injure; (3) induced a third party not to enter into or continue a business relationship with the plaintiff; and (4) caused the plaintiff some financial injury.” NationsBank, supra (citation omitted).

In moving for summary judgment, IH Riverdale and Nolan pointed to a lack of evidence as to the element of malice with intent to injure, and they also cited Nolan’s affidavit, averring that the filing of the notice of lis pendens and its delivery to the bank were done with a good faith intent to protect business interests and were not made with any ill will toward Meadow Springs. After the appellees carried their burden of pointing to an absence of evidence, “appellant [Meadow Springs] was required to go forward and point to specific evidence giving rise to a triable issue as to the element of malice with intent to injure.” Renden, supra at 335 (2) (a) (citation omitted). However, Meadow Springs did not do so, and instead rested on conclusory allegations concerning the appellees’ filing of its complaint and the notice of lis pendens, and its delivery of copies of those and other documents to the bank. “Conclusory allegations by the plaintiff of conspiracy and malice are insufficient — in the absence of substantiating fact[s] or circumstances — to raise a material issue for trial.” Johnson v. Auto/Mend, Inc., 183 Ga. App. 311, 312 (359 SE2d 10) (1987) (citation and punctuation omitted). Accordingly, summary judgment was justified as to the tortious interference with business and contractual relations claims.

(b) Slander of title.

Under OCGA § 51-9-11, “[t]he owner of any estate in lands may bring an action for libelous or slanderous words which falsely and maliciously impugn his title if any damage accrues to him therefrom.” As with the tortious interference claims discussed above, Meadow Springs relies on the same conclusory allegations and has “presented no proof that appellee [s] acted with malice in filing [the notice of lis pendens or in delivering it to the bank].” Harmon v. Cunard, 190 Ga. App. 19, 20 (378 SE2d 351) (1989). See also Roofing Supply of Atlanta v. Forrest Homes, 279 Ga. App. 504, 508 (3) (632 SE2d 161) (2006) (false lien may support a cause of action for defamation of title under OCGA § 51-9-11, but claimant must be aware of falsity of statements in lien).

Case No. A13A0S96

2. Compulsory counterclaims.

IH Riverdale and Nolan argue that the trial court erred in failing to hold that Meadow Springs’ claims for slander of title and tortious interference with contractual and business relations were compulsory counterclaims that should have been asserted along with Meadow Springs’ answer to the 2003 complaint filed by IH Riverdale and Nolan. The argument is without merit.

OCGA § 9-11-13 (a), which governs compulsory counterclaims, provides:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . .

And as previously explained, this court

has given clear guidelines for determining whether a claim qualifies as a compulsory counterclaim: If a claim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim, such claim must be asserted as a compulsory counterclaim. The broad test to be applied in determining whether a counterclaim is compulsory is whether a logical relationship exists between the respective claims asserted by the opposing parties. In making this determination, we look to see whether judicial economy and fairness dictate that all the issues be resolved in one lawsuit. A logical relationship arises when (1) the same aggregate or operative facts serve as the basis for both claims, or (2) the case facts supporting the original claim activate legal rights of the defendant that would otherwise remain dormant.

Decided July 12, 2013

Reconsideration denied July 29, 2013

Taylor, English & Duma, Wiliam G. Leonard, for appellant.

Weener & Nathan, Eric J. Nathan, for appellees.

Metro Brokers v. Sams & Cole, LLC, 316 Ga. App. 398, 400-401 (1) (b) (729 SE2d 540) (2012) (citations omitted).

In this case, Meadow Springs’ claims were premised on the filing of the notice of lis pendens and delivery of a copy of the lis pendens to the bank. Those acts occurred after IH Riverdale and Nolan had filed their 2003 complaint, which was premised on allegations that their rights regarding the Phase II development had been violated. Therefore, the same operative facts did not serve as the basis for both the 2003 complaint filed by IH Riverdale and Nolan and the 2005 complaint filed by Meadow Springs, nor did the facts supporting the 2003 claim activate the legal rights of Meadow Springs. Accordingly, the trial court correctly ruled that Meadow Springs’ claims were not compulsory counterclaims to the 2003 complaint.

Judgments affirmed.

Doyle, P. J., and Boggs, J., concur.


author: DOYLE, Presiding Judge.

text:
    A13A0591.
    BOONE v. UDOTO et al.
    (747 SE2d 76)
   DOYLE, Presiding Judge.

Torian Boone filed suit against Gilbert Udoto and Johnny Brown d/b/a Sandtrap Club & Lounge and Sunnyraj, Inc., after Boone sustained injuries from a patron of Sandtrap Club & Lounge (“the Club”) who assaulted him in the parking lot. Boone now appeals the trial court’s grant of defendants’ motions for summary judgment, contending the trial court erred by: (1) finding that the attack was not reasonably foreseeable; (2) finding that he had equal or superior knowledge to appellees and had the last clear chance to avoid the injury; (3) failing to consider his expert’s affidavit opining on issues involving negligence, causation, and foreseeability; and (4) finding that Sunnyraj, Inc., was an out-of-possession landlord because it retained certain rights as to the Sandtrap Club & Lounge. For the reasons below, 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). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Viewed in this light, the record shows that on February 26, 2010, Boone and his friend, Curtis Ware, were at the Club, when the two saw Quantavious Thomas, whom they did not know, enter the Club and walk into the VIP section, where he initiated an altercation with several other patrons. The music stopped, and Thomas was physically removed from the Club by Conce Hill, a security guard. Thomas assaulted Hill as he removed him from the Club, and Thomas seemed out of control, threatening to kill Hill. Another patron of the Club warned Hill of Thomas’s propensity for gun violence, telling Hill that “you all need to watch [Thomas], you know, because he’s crazy, he’ll go to his car and get a gun and come back and try to shoot you.”

After Hill ejected Thomas to the parking lot, Thomas retrieved a handgun from his vehicle and discharged the weapon in the air multiple times. Thomas reentered the Club and discharged the handgun, causing the patrons to panic and frantically exit the building. After Thomas exited the Club again, Boone and Ware decided to leave, but while searching for Ware’s vehicle in the parking lot, Boone found himself five to ten feet in front of Thomas, who was still carrying a handgun. Although Ware walked to the right of Thomas and escaped injury, Boone was too panicked to escape in another direction and instead attempted to walk quickly past Thomas. As Boone was passing Thomas, Thomas raised his handgun and struck Boone in the eye. As a result of the attack, Boone lost vision in his right eye.

Boone filed claims against Udoto and Brown, as owners of the Club (collectively “the Club Owners”), and Sunnyraj, as the owner of the property (“the landlord”), to recover damages for his injuries, which he alleged were proximately caused by the defendants’ negligence. The trial court granted the defendants’ motions for summary judgment, and Boone appeals. For the reasons that follow, we affirm the trial court’s grant of summary judgment to the landlord and the Club Owners.

Club Owners

1. On appeal, Boone contends that the trial court erred by finding that Thomas’s attack was not reasonably foreseeable to the Club Owners. We disagree.

Foreseeable consequences are those which are probable, according to ordinary and usual experience, those which, because they happen so frequently, may be expected to happen again. One is not bound to anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.

“Said in a different way, one is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what is only remotely and slightly probable.”

“Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required.” A plaintiff cannot survive summary judgment based upon allegations of negligent security if the particular crime was unforeseeable.

In this case, Boone was injured in the parking lot when he was randomly hit on the head with a gun held by Thomas, a person with whom he had had no previous interaction that evening in the Club and whom he did not know. As with Boone, it is undisputed that the Club’s personnel did not know Thomas, and other than the patron’s off-hand comment regarding Thomas’s propensity to wield a gun, had no prior knowledge of Thomas’s propensities before the evening in question. Moreover, prior to the incident with Thomas, the Club had never experienced another incident with a gun, never found a gun while frisking patrons before they entered the Club, never had any altercations involving a weapon at the Club, and never experienced a patron attempting to reenter the Club after being removed as a result of a physical altercation. Additionally, based on security personnel’s prior experience, patrons always left the premises when asked to do so. Finally, the record shows that the previous fights at the Club mostly involving “shoving” and fist fights.

Each segment of the incident with Thomas unfolded rapidly and took an unforeseen turn when it resulted in Boone’s random injury in the parking lot. For example, while another patron warned Hill that Thomas would get a gun and return, he had no time to react because he heard gunfire only a few seconds later. Likewise, Thomas’s car was parked right outside the club door, and he ran to his car to retrieve his gun within a minute or two after being pulled off of Hill. And, as soon as Thomas obtained his gun, he fired into the air and ran toward the Club door within a few seconds. He remained inside the club with the gun for only ten to sixty seconds before exiting again.

Boone relies on Confetti Atlanta v. Gray, and Good Ol' Days Downtown v. Yancey to argue that the lack of prior gun violence and the rapidity to the events do not require a finding that his injury was unforeseeable. Those cases, however, involved an escalation of ongoing altercations between the plaintiffs and their assailants, but they do not involve an assailant injuring a random patron with whom he had no prior contact. In contrast here, the altercation inside the Club between Thomas, other patrons, and security did not provide notice that Thomas would randomly hit a patron in the parking lot who had not been involved in the initial altercation or Thomas’s removal from the Club. In comparing the “location, nature and extent of the prior criminal activities” here, there is simply no “likeness, proximity or other relationship to the crime in question.” Accordingly, the trial court did not err by finding that the attack was not reasonably foreseeable.

2. Based on our holding in Division 1, it is unnecessary to address Boone’s contention that the trial court erred by finding that he had equal or superior knowledge to the Club Owners and that he had the last clear chance to avoid injury, or his contention that the trial court erred by failing to consider his expert’s affidavit opining on issues involving negligence and causation.

Landlord

3. On appeal, Boone contends that the trial court erred by failing to find that a question of material fact existed as to whether the landlord was an out-of-possession landlord because he retained certain rights as to the premises. We disagree.

“Landlords who fully part with possession and the right of possession of the premises are not liable to third parties for damages arising from the tenant’s negligence” pursuant to OCGA § 44-7-14, which provides:

Having fully parted with possession and the right of posses-

Decided July 15, 2013

Reconsideration denied July 29, 2013

James A. Rice, Jr., for appellant.

Dennis, Corry, Porter & Smith, Grant B. Smith, Kermit S. Dorough, Jr., Ashleigh J. Smith, for appellees.

sion, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

“[A] landlord’s right to inspect is not the equivalent of the right to possess premises, so as to make the landlord liable under OCGA § 44-7-14. Landlords still fully part with possession of leased premises when they retain limited entry or inspection rights for landlord-related purposes.”

Here, the Club Owners were responsible for maintenance, repair, and replacement, and the landlord had no obligation to repair or maintain. Nevertheless, the landlord did have the right to inspect and enter the premises and could, in its own discretion, increase security at the sole cost of the Club Owners. Such limited rights, however, do not “evidence such dominion and control of the premises so as to vitiate the landlord’s limited liability imposed by OCGA § 44-7-14.” Accordingly, the trial court properly granted summary judgment to the landlord.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citation, punctuation and footnote omitted; emphasis in original.) Dowdell v. Wilhelm, 305 Ga. App. 102, 105 (1) (699 SE2d 30) (2010).

       (Citation, punctuation and footnote omitted.) Sotomayor v. TAMA I, LLC, 274 Ga. App. 323, 327 (2) (617 SB2d 606) (2005) (physical precedent only); Thompson v. Princell, 304 Ga. App. 256, 261-262 (696 SE2d 91) (2010) (same).

       (Citation, punctuation and footnote omitted.) Baker v. Simon Property Group, 273 Ga. App. 406, 409 (2) (614 SE2d 793) (2005).

       See id.

       202 Ga. App. 241, 243-244 (1) (414 SE2d 265) (1991) (assailant’s use of a vehicle to injure another patron after a physical altercation between the two did not preclude finding that the attack was reasonably foreseeable harm against which the defendant had to protect). See also Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997) (evidence of prior burglaries was sufficient to give rise to a triable issue as to whether landlord had duty to exercise ordinary care to safeguard against risks posed by prior burglaries where the plaintiff was raped).

       209 Ga. App. 696, 698 (2) (434 SE2d 740) (1993) (holding that question of fact as to whether attack by one patron on another was reasonably foreseeable because assailant’s loud and abusive behavior continued to escalate for over five minutes prior to physical altercation).

       See Good 0l’Days Downtown, 209 Ga. App. at 698 (2); Confetti Atlanta, 202 Ga. App. at 243-244 (1).

       See W. D. Enterprises v. Barton, 218 Ga. App. 857, 858-859 (463 SE2d 529) (1995) (holding that attack on another bar patron was unforeseeable because, while assailant was loud and rude, nothing indicated he was likely to become violent with others).

        Sturbridge Partners, 267 Ga. at 786. See also Drayton v. Kroger Co., 297 Ga. App. 484, 486-487 (677 SE2d 316) (2009) (armed robbery of employee inside the store that did not involve customers did not render robbery and aggravated assault of customer in parking lot reasonably foreseeable); Vega v. La Movida, 294 Ga. App. 311, 314 (1) (a) (670 SE2d 116) (2008) (trial court properly excluded evidence of gun use in bar’s parking lot to show reasonable foreseeability of shooting inside the bar); Hunter v. Cabe Group, 244 Ga. App. 162 (535 SE2d 248) (2000) (attack on plaintiff was unforeseeable because no evidence of an escalating course of conduct between the assailant and the plaintiff).

       Boone also argues that the trial court erred by failing to consider that portion of his expert’s affidavit regarding foreseeability. Whether or not to consider expert testimony on the issue of foreseeability is within the discretion of the trial court, and we find no abuse of discretion here. See Raines v. Maughan, 312 Ga. App. 303, 308 (2) (c) (718 SE2d 135) (2011) (physical precedent only); Carlock v. Kmart Corp., 227 Ga. App. 356, 361-362 (3) (b) (489 SB2d 99) (1997).

        Lake v. APH Enterprises, 306 Ga. App. 317, 319 (702 SE2d 654) (2010).

       (Citations and punctuation omitted.) Id.

       (Punctuation omitted.) Id. at 320.