author: MCFADDEN, Judge.

text:
    A13A1830.
    BETHELMIE v. HERITAGE PLACE, LLC.
    (754 SE2d 624)
   MCFADDEN, Judge.

Albert Bethelmie appeals from the trial court’s order granting a default judgment to Heritage Place, LLC in a breach of contract action. As detailed below, he has not shown by the record his claim that the trial court erroneously denied him the opportunity to present evidence at a hearing on damages. Nevertheless, we vacate the order and remand the case for further proceedings because the trial court, in awarding Heritage Place costs of litigation, failed to identify the statutory authority for that award or set forth findings authorizing the award.

1. Facts and procedural background.

Bethelmie leased commercial property from Heritage Place, which subsequently sued him for breach of that lease. Heritage Place sought to recover, among other things, outstanding lease payments and fees due under the lease and “costs of litigation and investigation of this matter, including reasonable and necessary attorneys’ fees and expenses of litigation pursuant to OCGA § 13-6-11 and OCGA § 9-15-14.”

Bethelmie did not answer or otherwise respond to the complaint, nor did he seek to open default within the time period specified under OCGA § 9-11-55 (a) (providing mechanism for opening default as matter of right), and Heritage Place moved for default judgment. In its motion, Heritage Place alleged that it was “entitled to recover its continuing damages associated with [Bethelmie’s] breach of the Lease and [Heritage Place’s] costs of litigation and investigation of this matter, including reasonable and necessary attorneys’ fees and expenses of litigation, in an amount to be shown at trial,” and it sought a hearing.

Bethelmie appeared at the hearing on the motion for default judgment. Subsequently, the trial court entered a default judgment in which it awarded Heritage Place “the principal amount of $23,700.00; plus costs and expenses of litigation, including court costs and attorneys’ fees, incurred by [Heritage Place] in this action in the amount of $1,239.50, for a total judgment equal to $24,939.50,” along with post-judgment interest.

2. Bethelmie’s ability to present evidence at the hearing.

Bethelmie asserts in his brief that the trial court did not allow him to present evidence on damages at the hearing, notwithstanding that under OCGA § 9-11-55 (a) he had a right to present such evidence. See Erwin v. Gibson, 205 Ga. App. 136, 137 (421 SE2d 752) (1992). But Bethelmie points to nothing in the appellate record that shows that the trial court did not allow him to present evidence. He elected not to include a transcript of the hearing in the appellate record, instead stating in his amended notice of appeal that “[a] transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.” (Emphasis supplied.) “It is the duty of the party asserting error to show it by the record. Assertions of evidence in briefs or enumerations of error cannot satisfy this duty.” Fine v. Fine, 281 Ga. 850, 852 (2) (642 SE2d 698) (2007) (citations omitted). Accord Thorsen v. Saber, 288 Ga. 18, 19 (2) (701 SE2d 133) (2010). Bethelmie has not met his burden of showing by the record that the trial court erred in failing to allow him to present evidence at the hearing.

3. Costs of litigation.

Bethelmie argues that the trial court erred in awarding costs of litigation. We are unable to review this claim of error, however, because we cannot ascertain whether the trial court awarded the costs of litigation under OCGA § 13-6-11 (authorizing award of expenses of litigation to a plaintiff who has specially pleaded and shown in a contract action that the “defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense”) or OCGA § 9-15-14 (authorizing trial court to award attorney fees to a party against whom another party has asserted a position lacking any justiciable issue of law or fact, or against a party who asserted a defense that lacked substantial justification or was interposed for delay or harassment or who unnecessarily expanded the proceeding by other improper conduct). In its complaint, Heritage Place sought costs of litigation under both Code sections, but the trial court did not identify the Code section under which she was making her award, and the appellate record offers no insight on this point. See Easler v. Fuller, 169 Ga. App. 110, 111 (311 SE2d 534) (1983) (where appellate court could not ascertain Code section under which trial court awarded costs of litigation, appellate court was unable to “lucidly pass upon the appeal” from that award).

Decided February 5, 2014.

Christie L. Baer, for appellant.

Mario D. Breedlove, for appellee.

Moreover, the trial court failed to include in its order findings that would support an award under either Code section. We have required such findings when a trial court awards costs of litigation under either OCGA § 13-6-11, see Parland v. Millennium Constr. Svcs., 276 Ga. App. 590, 593 (2) (623 SE2d 670) (2005), or OCGA § 9-15-14, see Reynolds v. Clark, 322 Ga. App. 788, 790 (1) (746 SE2d 266) (2013).

We must therefore vacate the order and remand the case to the trial court for clarification and further findings on the statutory and factual bases of the costs award. Reynolds, 322 Ga. App. at 791 (1); Easier, 169 Ga. App. at 111.

Judgment vacated and case remanded with direction.

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


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A13A2043.
    HUDSON v. THE STATE.
    (754 SE2d 626)
   McFadden, Judge.

Marreese Hudson appeals his convictions of four counts of child molestation, two counts of cruelty to children in the third degree, aggravated assault and interference with a 911 call. He argues that he received ineffective assistance of counsel in that trial counsel failed to call certain witnesses; but as their testimony would have been merely cumulative, trial counsel was not ineffective. He asks us to overrule the longstanding exception to the sequestration rule which authorizes trial courts to allow lead investigators to remain in the courtroom; but as that exception is set out in decisions of our Supreme Court, we are without authority to overrule it. He complains that the trial court erred by failing to instruct the jury on mutual combat and justification, but we agree with the trial court that the evidence does not require either charge. We therefore affirm.

1. Facts.

Viewed in the light most favorable to the verdict, Cordy v. State, 315 Ga. App. 849 (1) (729 SE2d 13) (2012) (citation omitted), the evidence shows that Hudson would watch his stepdaughters while their mother worked in the evenings. The younger victim, who was 12 at the time of trial, testified that after the girls bathed, they “would have to go in the room and [Hudson] would look between [their legs], and that’s it.” This began after the girl told Hudson that a boy at school tried to rape her.

At some point, the older victim, who was 13 at the time of trial, told her mother that Hudson had “messed with” her and her sister. Mrs. Hudson confronted him. Hudson did not deny checking between the girls’ legs but explained that one of the girls was “messing with” a boy next door. This led to a fight between Mr. and Mrs. Hudson. Hudson hit Mrs. Hudson in the face with a trophy, leaving a two- to three-inch gash under her eye that required sutures. When Mrs. Hudson said she was going to call 911, Hudson pulled the phone out of the wall.

Police responded to the domestic dispute at Hudson’s house. They saw that Mrs. Hudson was covered in blood and that blood was on the wall, the bed, and the furniture. Hudson had a scratch on the top of his head that “wasn’t that bad”; he did not even look like he had been in a fight.

Two days later, Hudson’s stepdaughters gave statements at the child advocacy center, recounting how Hudson examined them. Those statements were recorded, and the DVDs were played for the jury. Days after they gave their recorded statements, the girls recanted. They told their mother that they had lied and that Hudson “never messed with [them] or looked between [their] legs.” At trial the older victim testified that she told a police detective, her grandmother, her grandfather, her cousin, and her pastor that her recorded statement had been a lie. The younger victim also testified that she had lied when she was interviewed at the child advocacy center. She testified that she told her grandmother, her pastor and two other people that she had lied. But she also testified that Hudson “checked” her, consistent with her statement at the child advocacy center and her initial statement to her mother.

2. Trial counsel was not ineffective.

Hudson argues that trial counsel was ineffective because she should have called the girls’ pastor, their grandmother, and their grandfather to corroborate the girls’ testimony that they told these people they had lied. To prevail on his claim of ineffective assistance of counsel, Hudson must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Hudson “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted). Hudson cannot show that trial counsel’s performance prejudiced him, so his claim of ineffective assistance of counsel fails.

Trial counsel’s testimony at the hearing on the motion for new trial demonstrated that she made an informed, reasoned choice not to call these witnesses. She testified that, after reviewing the state’s discovery, she made a strategic decision not to call these witnesses because the victims’ “testimony would be the best source of that information.” The victims’ trial testimony included that they told their mother they had lied; that Hudson “never messed with [them] or looked between [their] legs,” that they told the detective, their grandmother, their grandfather, their cousin, and their pastor that they had lied; and that they had lied during the interviews at the child advocacy center.

Hudson has not shown that the testimony of the girls’ grandparents or pastor would have been anything other than merely cumulative. And failure to present merely cumulative evidence does not prejudice a defendant and therefore does not amount to ineffective assistance of counsel. Wesley v. State, 286 Ga. 355, 358 (3) (h) (689 SE2d 280) (2010); Duran v. State, 274 Ga. App. 876, 879 (3) (619 SE2d 388) (2005). See also Nichols v. State, 257 Ga. 558, 558-559 (2) (a) (361 SE2d 486) (1987) (counsel’s considered, strategic decision not to call witnesses who would have substantiated theory of self-defense was not ineffective because counsel determined their testimony would not have been beneficial or would have been merely cumulative); Freeman v. State, 269 Ga. App. 435, 438-439 (3) (a) (604 SE2d 280) (2004) (counsel’s decision not to call molestation victim’s therapist, to whom victim had recanted, was not ineffective assistance of counsel as counsel determined the testimony would be merely cumulative or harmful).

3. The lead investigator could remain in the courtroom.

Hudson argues that allowing the lead investigator to remain in the courtroom violated the rule of sequestration. Settled law authorizes such an exception to sequestration.

The trial court may allow an investigative officer to remain in the courtroom to assist the prosecutor in the orderly presentation of evidence. A trial court is vested with the discretion to make an exception to the sequestration rule for the chief investigating officer and the discretion will not be reversed on appeal unless abused.

Sirmans v. State, 301 Ga. App. 756, 759 (4) (688 SE2d 669) (2009) (citations omitted). Hudson does not argue that the trial court abused its discretion but instead argues that this exception to the sequestration rule should be abolished. But this exception was established long ago by our Supreme Court. See Hardy v. State, 245 Ga. 673, 674 (266 SE2d 489) (1980); Spurlin v. State, 222 Ga. 179, 180-181 (2) (149 SE2d 315) (1966). And “this [c]ourt has no authority to overrule or modify a decision made by the Supreme Court of Georgia, as the decisions of the Supreme Court shall bind all other courts as precedents.” Pak v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 488 (731 SE2d 384) (2012) (citations and punctuation omitted).

4. The trial court did not err by refusing to charge the jury on mutual combat and justification.

(a) Mutual combat.

“A charge on mutual combat generally is proper when there is evidence of a mutual intention or agreement to fight.” Pulley v. State, 291 Ga. 330, 334 (3) (729 SE2d 338) (2012) (citations and punctuation omitted). Accord Carreker v. State, 273 Ga. 371, 372 (2) (541 SE2d 364) (2001) (mutual combat charge authorized where evidence showed “both parties intended to resolve their differences by fighting each other”). Here the evidence showed no such intention or agreement and therefore did not support a charge on mutual combat.

(b) Justification.

The defense of justification is established by statute.

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, ... a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

Decided February 5, 2014.

Jacque D. Hawk, for appellant.

Ashley Wright, District Attorney, Titus T. Nichols, Charles R. Sheppard, Assistant District Attorneys, for appellee.

OCGA § 16-3-21 (a). Whether a charge on justification is warranted is for the trial court’s discretion.

A prima facie case of justification requires a showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant was honestly trying to defend himself. The trial court exercises its discretion in determining whether a defendant has made a prima facie showing, and we will not reverse that determination absent an abuse of discretion.

Williams v. State, 298 Ga. App. 151, 153 (679 SE2d 377) (2009) (citations and punctuation omitted). “If the amount of force used by a person is excessive, ... it does not qualify as self-defense.” Howe v. State, 322 Ga. App. 294, 297 (744 SE2d 818) (2013).

Hudson has not demonstrated that the trial court abused its discretion in determining he had not made a prima facie showing of justification. It is true that there was some evidence that Mrs. Hudson attacked first. But Hudson hit her in the face with a trophy, covering her in blood and splattering blood over the room. She required sutures; he did not even appear to have been in a fight. So Hudson has not shown that the trial court abused its discretion in determining that he had not made a prima facie case of self-defense. See Brunson v. State, 293 Ga. 226, 227-228 (2) (744 SE2d 695) (2013) (trial court did not err in determining that evidence did not warrant giving of self-defense charge where evidence showed that unarmed victim moved toward defendant only after defendant threatened him with revolver and that victim attempted to point defendant’s gun away from others).

Judgment affirmed.

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


author: Ellington, Presiding Judge.

text:
    A13A1712.
    WELLS FARGO BANK, N.A. v. TWENTY SIX PROPERTIES, LLC et al.
    (754 SE2d 630)
   Ellington, Presiding Judge.

Wells Fargo Bank, N.A., filed this action in the Superior Court of Fulton County seeking, among other relief, a declaratory judgment that it has a valid lien against certain property in Forsyth County pursuant to a deed to secure debt granted by James Pefanis to AME Financial Corporation to secure a promissory note. Further, Wells Fargo seeks a declaration that its lien is entitled to first priority status, and, in particular, that its lien is superior to a writ of execution held by Evangelina Forsberg as a result of a personal injury judgment that she had obtained against Pefanis. Forsberg filed a counterclaim, seeking a declaration that she has a lien against the property that is first in priority and that Wells Fargo has no valid lien at all against the property. Wells Fargo filed a motion for partial summary judgment on the issue of the priority of its lien compared to Forsberg’s interest in the property, and Forsberg also filed a motion for summary judgment. After a hearing, the trial court granted Forsberg’s motion for summary judgment and denied Wells Fargo’s motion for partial summary judgment. Wells Fargo appeals, and, for the reasons explained below, we reverse the grant of summary judgment in Forsberg’s favor.

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

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

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). See also Morgan Enterprises v. Gordon Gillett Business Realty, 196 Ga. App. 112 (395 SE2d 303) (1990) (“On cross-motions for summary judgment, each party must show there is no genuine issue of material fact regarding the resolution of [the essential] points of inquiry and that each, respectively, is entitled to summary judgment; either party, to prevail by summary judgment, must bear its burden of proof.”).

The record shows the following undisputed facts. On September 8, 1994, Paul and Jacalyn Gawron conveyed 14.21 acres of real property located in Forsyth County in fee simple via warranty deed to Ron Eckland. On the same day, Eckland conveyed 10.0 acres of the property via quitclaim deed to himself and to James Pefanis as joint tenants with right of survivorship. The 10.0-acre tract is improved with a single family home with an address of 6835 Matt Highway, Cumming (“the property”). On December 15,1997, Eckland conveyed his interest as a joint tenant in the property to Pefanis via warranty deed recorded March 6,1998. On June 1, 2007, Pefanis conveyed his interest in the property via quitclaim deed back to Eckland. That deed was recorded on April 22, 2008. Superior Court of Forsyth County, Book 5107, pp. 195-196. On February 26, 2009, Eckland conveyed his interest in the property via quitclaim deed to Twenty Six Properties, LLC. That deed was recorded on June 3, 2009. Superior Court of Forsyth County, Book 5442, pp. 407-408.

In several separate transactions between December 1997, when Eckland conveyed his interest in the property to Pefanis, and June 2007, when Pefanis conveyed the property back to Eckland, Pefanis borrowed money, using the property as security, and conveyed the property to lenders via deeds to secure debts. At issue in this case is a deed to secure debt Pefanis executed on June 28, 2006, conveying the property to AME Financial Corporation to secure a 30-year promissory note with the original principal amount of $1,425,000. Wells Fargo purchased that secured debt from AME Financial Corporation on August 2, 2006.

On December 17, 2007, Forsberg filed a lawsuit in the federal district court for the Northern District of Georgia, Case No. l:07-cv3116-JOF-RGV, alleging that, while she was an employee of AME Financial Corporation, Pefanis sexually harassed her. On March 19, 2008, while Forsberg’s suit was pending, Eckland filed a copy of the June 28, 2006 deed to secure debt conveying the property to AME Financial Corporation. Superior Court of Forsyth County, Book 5072, pp. 178-199. Along with the deed, which until then had never been recorded, Eckland filed his affidavit, in which he deposed that his law firm had been the closing attorney for the transaction and that the original deed to secure debt had been lost or misplaced. Although the debt that the deed secured had a term of thirty years, the deed that Eckland filed had been altered to show that the debt had a term of only three years.

A few months after Eckland recorded the June 28, 2006 deed to secure debt (as altered), Forsberg’s claim against Pefanis went to trial, and a jury returned a verdict in her favor. The district court entered judgment on October 20, 2009. On November 2, 2009, Forsberg obtained a writ of execution directing that “the goods and chattels, lands and tenements . . . belonging to James Pefanis” be levied to satisfy that judgment. On November 4, 2009, Forsberg filed the writ of execution in Forsyth County, where 6835 Matt Highway is located.

Pefanis defaulted on the June 28, 2006 promissory note in early 2010. On March 3, 2011, Wells Fargo filed this declaratory judgment action, claiming that it has a valid first priority lien against 6835 Matt Highway, which, as to that property, trumps Forsberg’s writ of execution.

The trial court granted Forsberg’s motion for summary judgment on January 2, 2013. In so ruling, the trial court determined that, because the June 28, 2006 deed to secure debt had been materially altered before Eckland caused it to be filed on March 19, 2008, the filing of the deed to secure debt was fraudulent and ineffectual in establishing the priority of the secured interest relative to other interests in the property. The trial court held that, because, as of the date of its ruling, an authentic copy of the June 28, 2006 deed to secure debt had still not been filed, “Forsberg’s judgment lien is entitled to priority over the fraudulent... security deed [as recorded in 2009] and the unrecorded ... security deed[,] should it eventually be recorded” in a nonfraudulent manner.

1. Wells Fargo contends that Forsberg’s judgment lien has not attached to the subject property and cannot be levied upon. As a result, Wells Fargo contends, the trial court erred in granting Forsberg’s motion for summary judgment.

It is fundamental that a writ of execution for the satisfaction of a judgment authorizes a levy only upon property which the judgment debtor owns. OCGA §§ 9-13-3 (“Every execution shall follow the judgment upon which it issued[.]”); 9-13-10 (“Except as otherwise provided by law, executions ... may be levied on all the estate of the defendant, both real and personal, which is subj ect to levy and sale.”). See also Stuart Finestone, Ga. Post-Judgment Collection (database updated January 2013), §§ 8:1; 8:4. In this case, the evidence that, as of the date Forsberg acquired the right to seize Pefanis’s assets, he had any interest in the real property at issue in this case, 6835 Matt Highway, is, at most, disputed. Regardless the nature of Pefanis’s interest in the property before he executed the quitclaim to Eckland on June 1,2007, that recorded quitclaim is evidence that he divested himself of any interest he had in the property on that date. It may be that, after Pefanis executed the June 1,2007 quitclaim, he reacquired an interest in the property, or that that conveyance to Eckland may at some point be set aside. But the record before the trial court when it ruled on the motion for summary judgment did not establish as a matter of law that Pefanis had any legal or equitable interest in the property at any time after he executed the quitclaim. Because the record did not establish that Pefanis had any ownership interest in the property upon which Forsberg’s right to seize his assets could attach, the trial court erred in finding as a matter of law that Forsberg holds a judgment lien against the property. It follows that the trial court erred in declaring that Forsberg holds a first priority lien against the property and in granting her motion for summary judgment.

Decided February 6, 2014.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Scott H. Michalove, Joshua N. Tropper, for appellant.

Munger & Stone, Benjamin A. Stone, J. David Stuart, Ron D. Eckland, for appellee.

2. In light of our decision in Division 1, supra, Wells Fargo’s remaining arguments are either moot or are premature at this time. Bd. of Natural Resources v. Monroe County, 252 Ga. App. 555, 557 (1) (556 SE2d 834) (2001) (“Declaratory judgment will not be rendered based upon a possible or probable future contingency because such a ruling would be an erroneous advisory opinion.”) (citation and punctuation omitted).

Judgment reversed.

Phipps, C. J., and Branch, J., concur.

       On the same day, September 8, 1994, Eckland conveyed the remaining 4.21 acres of the Gawron property via quitclaim deed to James Pefanis. All of the deeds executed on September 8, 1994, were recorded on October 6, 1994.

       On the same day, June 1, 2007, Pefanis also conveyed his interest in the 4.21-acre tract via quitclaim deed back to Eckland.

       On the same day, February 26, 2009, Eckland also conveyed his interest in the 4.21-acre tract via quitclaim deed to Twenty Six Properties, LLC.

       See OCGA § 44-14-63 (a) (“Every deed to secure debt shall be recorded in the county where the land conveyed is located.”); Daniel F. Hinkel, 3 Pindar’s Ga. Real Estate Law & Procedure, § 21:21 (7thed.,updated2013)(“Asecuritydeedisvalidbetweentheparties without recording, but in order to provide constructive notice to third persons, it must be filed for record in the office of the superior court clerk of the county where the land lies.”) (footnote omitted).

       Under Georgia law, when a borrower gives a lender a deed to secure debt, the borrower grants and conveys outright legal title in the subject real property to the lender (the grantee) and takes “a bond for title back to the grantor upon the payment of the debt [.)” OCGA § 44-14-60. See also West Lumber Co. v. Schnuck, 204 Ga. 827, 835 (1) (51 SE2d 644) (1949). Thus, the borrower retains an equitable title and the right to regain or redeem legal title by payment of the secured indebtedness; the borrower also retains the right of possession. West Lumber Co. v. Schnuck, 204 Ga. at 835 (1); C & S Bank v. Realty Savings & Trust Co., 167 Ga. 170, 171-172 (144 SE 893) (1928); Boyer v. Whiddon, 264 Ga. App. 137, 138 (589 SE2d 709) (2003). See generally Daniel F. Hinkel, 3 Pindar’s Ga. Real Estate Law & Procedure, §§ 21:13 (7th ed., updated 2013) (estate created by security deed); 21:14 (estate of grantor); 21:15 (right of possession). The borrower’s equitable estate or title may be assigned or subjected to payment of the borrower’s other debts. C & S Bank v. Realty Savings, 167 Ga. at 171-172.

       The record contains a Personal Financial Statement that Pefanis executed on November 20,2007, in which, despite the June 1,2007 quitclaim deed in Eckland’s favor, Pefanis claimed that he still had a 100 percent ownership interest in 6835 Matt Highway, subject to a mortgage held by Wachovia Bank. See 2 Pindar’s Ga. Real Estate Law and Procedure, §§ 19:102 (cancellation of a deed by court order; fraudulent conveyances); 19:112 (protection against unknown defects) (7th ed., updated 2013).

       In addition, we note that, however legitimate Forsberg’s right to Pefanis’s assets may be, she does not occupy the status of one who purchased Pefanis’s interest in the property from him. See OCGA § 44-2-1 (“[A] prior unrecorded deed loses its priority over a subsequent recorded deed from the same vendor when the purchaser takes such deed without notice of the existence of the prior deed.”); Eleanor L. Grossman, 3 Ga. Jur. Property, § 23:55 (database updated September 2013) (Under Georgia law, a chronologically prior but unrecorded deed to secure debt will not lose its priority against a subsequent judgment lien.); In the Matter of Clifford, 566 F2d 1023, 1025-1027 (5th Cir. 1978) (Under Georgia law, the holder of a prior unrecorded security deed has priority over a subsequent judgment lien creditor.).


author: Ray, Judge.

text:
    A13A1886.
    THE STATE v. FIORENZO.
    (754 SE2d 634)
   Ray, Judge.

The State appeals from the trial court’s dismissal “with jeopardy” of an accusation against Vincenzo Thomas Fiorenzo for sale of a counterfeit substance. Finding that the trial court erred in dismissing the accusation “with jeopardy,” we reverse and remand.

On February 13, 2012, the State filed an accusation against Fiorenzo alleging that he unlawfully sold a substance that he represented to be MDMA (“Ecstasy”) when, in fact, the substance was not MDMA. On April 27, 2012, Fiorenzo filed a motion indicating his intent to raise the affirmative defense of entrapment, as well as a motion to reveal the identity of the “confidential and reliable informant” who assisted the State during its investigation. On September 4, 2012, Fiorenzo’s motion to reveal the identity of the confidential informant was set for a hearing, but it was continued, per the request of the defendant, until the trial of the case. On March 13, 2013, a pre-trial hearing was held regarding Fiorenzo’s pending motions. At the hearing, the trial court inquired whether the State’s listed witness was present. The prosecutor informed the trial court that the witness was not present, but that the State could respond to the motions with another officer who was present in court. The trial court then dismissed the case “with jeopardy” based on its conclusion that the State failed to prosecute. The State filed its appeal of this case pursuant to OCGA § 5-7-1 (a) (l) (providing that the State may appeal from an order, decision or judgment setting aside or dismissing any indictment or accusation).

1. The State argues that the trial court erred when it dismissed the criminal charges against Fiorenzo “with jeopardy” as a sanction for the State’s failure to present a witness during a pre-trial motion hearing. We agree.

“[A] defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn.” (Citation and punctuation omitted.) Alden v. State, 314 Ga. App. 439, 440, n. 10 (724 SE2d 451) (2012). The record in the present case does not show that a jury was sworn; therefore, the trial court erred in dismissing the case with jeopardy. See Neal v. State, 308 Ga. App. 551, 556 (4) (e) (707 SE2d 503) (2011).

To the extent that the trial court, in dismissing the accusation “with jeopardy,” was attempting to dismiss the accusation with prejudice, we likewise conclude that the trial court was incorrect.

While we recognize the duty of the trial judge to control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, . . . the power to control the proceeding of the court is subject to the proviso that in so doing a judge does not take away or abridge any right of a party under the law.

(Citation omitted.) State v. Brooks, 301 Ga. App. 355, 359 (687 SE2d 631) (2009). This Court has held that the trial court’s power to control proceedings within its jurisdiction includes the discretion to dismiss criminal charges for want of prosecution, so long as such dismissal is without prejudice. See State v. Grimes, 194 Ga. App. 736, 736-737 (392 SE2d 727) (1990) (trial court was authorized to dismiss misdemeanor criminal charge without prejudice after the State received a continuance but was not ready on the rescheduled trial date). Compare State v. Rambert, 322 Ga. App. 379, 380 (745 SE2d 649) (2013) (finding that trial court erred in dismissing a criminal indictment “with prejudice”).

Decided February 6, 2014.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellant.

Lloyd W. Walker, for appellee.

2. We further find that the trial court erred in the present case by dismissing the State’s case at all. Although the State was unable to produce the listed witness, it did announce its intent to address Fiorenzo’s motions with testimony of another officer. The trial court dismissed the State’s accusation for want of prosecution prior to hearing from that witness and prior to making a determination as to whether the State’s proposed alternate witness was able to address the issues raised in Fiorenzo’s motions. Accordingly, we find that the trial court’s dismissal of the accusation was in error and remand the case back to the trial court for consideration under the current accusation. See Brooks, supra.

Judgment reversed and case remanded.

Barnes, P. J., and Miller, J., concur as to Division 1 and concur in judgment only as to Division 2.

       We apply the statute in effect at the time of the State’s notice of appeal, which is OCGA § 5-7-1, Ga. L. 2006, p. 379, § 3, effective July 1, 2006.

       In his brief on appeal, counsel for Fiorenzo concedes that the trial court erred in dismissing the accusation “with prejudice,” as it should have been “without prejudice.” In fairness to the trial court, however, we note that the order so signed was prepared by defense counsel.

       We make no ruling as to whether the proper remedy would have been to dismiss the case if the trial court concluded that the witness produced by the State was not adequate. Arguably, the remedy may have been to order that the identity of the confidential informant be revealed and to continue the case so as to allow the defendant an opportunity to secure such witness’s attendance at trial.


author: MCMILLIAN, Judge.

text:
    A13A2070.
    COPELAND v. THE STATE.
    (754 SE2d 636)
   MCMILLIAN, Judge.

Calvin Copeland was found guilty by a jury of robbery by sudden snatching (OCGA § 16-8-40 (a) (3)) and simple battery (OCGA § 16-5-23 (a) (2)). Following a hearing, the trial court denied Copeland’s motion for new trial. Copeland appeals, asserting the following enumerations of error: (1) the trial court erred in denying his motion to suppress his pre-trial identification, (2) the trial court incorrectly denied his request to charge the jury on the lesser included offense of theft by taking, and (3) the trial court failed to properly exercise its discretion in considering the general grounds asserted in his motion for new trial. For the reasons set forth below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. Wallace v. State, 294 Ga. App. 159 (1) (669 SE2d 400) (2008). So viewed, the evidence showed that around 7:15 p.m. on January 20, 2010, 72-year-old Bettie Renfro and her 74-year-old husband, Dewey Renfro, arrived at the Austin Avenue Baptist Church in Marietta, Georgia for the regular Wednesday evening service. The pastor of the church and his wife, Arthur and Gail Reese, arrived at approximately the same time. As the four individuals met up in the well-lit parking lot, they noticed a man walking up the street and briefly greeted him. The man was wearing white pants, a striped knit top, and carrying two fishing poles. The two couples then walked up the ramp to the front door of the church. As the pastor’s wife unlocked the door, the man walked up the steps and grabbed Mrs. Renfro’s purse. Mrs. Renfro was carrying her purse on her shoulder, and as the man grabbed it, the purse slid down her arm, and she tried to hold on to it. Mrs. Renfro testified at trial that this struggle “hurt [her] arm and [her] hand real bad, but [she] just tried to hold on as tight as [she] could.”

Mr. Renfro, who had walked up the ramp directly behind his wife, chased after the man. When Mr. Renfro yelled, “If you don’t stop, I am going to shoot you,” the man dropped the purse and ran off but did not drop the fishing poles. Mr. Renfro retrieved the purse, and Mr. Reese drove and picked him up. Mrs. Reese called the police, and City of Marietta Police Officer Gowerek arrived soon after. The officer received a description of the purse-snatcher and drove in the direction in which the man fled. He soon came up on a male in white colored clothing carrying two fishing poles and, upon questioning, identified him as Calvin Copeland. Copeland told the officer that he was fishing, but the officer did not know of any nearby fishing area, and the fishing poles did not work. Since Copeland matched the description of the robber, Officer Gowerek drove Copeland back over to the church with the fishing poles in the trunk of his car. Once the officer parked the car in front of the church entrance, Mr. Renfro walked down the steps, looked through the car window and said, “That’s him. That’s the guy that took the purse.” Mrs. Reese agreed, “He had the same clothes on, the same face, it was him.” Copeland was thereafter indicted on one count of robbery by sudden snatching and one count of simple battery. A jury found him guilty on both counts, and Copeland moved for a new trial, which motion was denied, giving rise to this appeal.

1. On appeal, Copeland first asserts that the trial court erred in denying his motion to suppress any reference to Mr. Renfro’s pre-trial identification of him by allowing the State to meet its burden through the testimony of the responding police officer. On appeal of the denial of a motion to suppress, we construe the facts in favor of the trial court’s findings, uphold those findings unless clearly erroneous, and review de novo the trial court’s application of law to the facts. See Hinton v. State, 321 Ga. App. 445, 449-450 (2) (740 SE2d 394) (2013).

At the motion to suppress hearing, the State produced Officer Gowerek who testified regarding Mr. Renfro’s identification of Copeland. Copeland maintains that the police officer’s testimony was hearsay and should not have been considered by the trial court. However, “at a suppression hearing, unlike most trials, the conduct and motives of the officers are at issue, and the court must look to the information available to the officer, including hearsay.” (Citation omitted.) McDaniel v. State, 263 Ga. App. 625, 627 (1) (588 SE2d 812) (2003). “Accordingly, the trial judge may admit hearsay testimony at the hearing, giving it such weight and credit as he deems proper, although such evidence may not be admissible at trial.” Id. at 627-628. Therefore, it was not error for the trial court to receive hearsay evidence during the suppression hearing.

2. In his second enumeration of error, Copeland contends that the trial court erred in failing to give a requested charge on the lesser included offense of theft by taking.

The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the State’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.

(Citation and punctuation omitted.) Hunter v. State, 261 Ga. App. 276, 278 (1) (582 SE2d 228) (2003).

Copeland relies on Merritt v. State, 139 Ga. App. 171 (228 SE2d 149) (1976) to argue that there is insufficient evidence of force here, such that the lesser offense of theft by taking should have been charged. However, his reliance is misplaced. As we have explained, “force is implicit in sudden snatching, both as a fact and as a legal proposition, the force being that effort necessary for the robber to transfer the property taken from the owner to his possession.” (Citation and punctuation omitted.) Brown v. State, 309 Ga. App. 511, 513 (1) (710 SE2d 674) (2011).

Robbery by sudden snatching differs from theft by taking because the robbery offense requires proof of two additional elements: the thief must take the property from the victim’s immediate presence, and the victim must be conscious of the theft at the time it is committed, in other words, before the taking is complete.

Bettis v. State, 285 Ga. App. 643, 646 (3) (647 SE2d 340) (2007). “If the undisputed evidence shows that the victim realized the property was being taken away from her immediate presence while the theft was being committed, the offense was robbery, not theft by taking.” Id.

Here, the victim’s testimony, discussed above, was sufficient to support a charge on robbery by sudden snatching. Moreover, the defense, as we can discern from the record, was that another individual committed the crime. Where “the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” (Citation and punctuation omitted.) Lupoe v. State, 284 Ga. 576, 577-578 (2) (669 SE2d 133) (2008). Accordingly, we find no error in the trial court’s refusal to give the requested jury charge on the lesser included offense of theft by taking.

3. In his final enumeration of error, Copeland urges that the trial court failed to properly exercise its discretion in acting as the thirteenth juror below following his motion for a new trial. Where a defendant raises a claim under OCGA §§ 5-5-20 and 5-5-21 in his motion for new trial, the law imposes upon the trial court an affirmative duty to exercise its discretion and weigh the evidence to determine whether a new trial is warranted. See Ricketts v. Williams, 240 Ga. 148, 149 (240 SE2d 41) (1977), vacated on other grounds, Williams v. Ricketts, 438 U.S. 902 (98 SCt 3119, 57 LE2d 1145) (1978); Kendrick v. Kendrick, 218 Ga. 460, 460 (1) (128 SE2d 496) (1962). If the record reflects that the trial court failed to exercise its discretion and sit as the thirteenth juror, we will vacate and remand for the trial court to fulfill its affirmative statutory duty. See State v. Jones, 284 Ga. 302, 303-304 (2) (667 SE2d 76) (2008); Rutland v. State, 296 Ga. App. 471, 476 (3) (675 SE2d 506) (2009).

Decided February 6, 2014.

Lawrence J. Zimmerman, Christopher R. Geel, for appellant.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

Copeland does not point to anything in the record which would indicate that the trial court applied an incorrect standard of review when considering the grounds of the motion for new trial. It must be presumed, therefore, that the trial court properly exercised its discretion:

Generally, in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the court agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.

(Citation and punctuation omitted.) Moore v. Stewart, 315 Ga. App. 388, 391 (3) (727 SE2d 159) (2012).

Here, the trial court’s order states that it considered the record, applicable law, Copeland’s amended motion for new trial, and argument and evidence presented in support thereof in a hearing. Because the record does not show that the trial court applied an incorrect standard of review, Copeland’s final enumeration of error also fails.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       We note that both Mr. and Mrs. Renfro testified at trial and that any statements to Officer Gowerek and identification of Copeland were the subject of cross-examination at that time.

       Although not separately enumerated, Copeland also complains that the trial court improperly asked questions in areas that the State had failed to fully develop in order to meet its burden. “A trial judge may propound questions to a witness to develop the truth of the case or to clarify testimony, and the extent of such an examination is a matter for the trial court’s discretion, so long as no opinion is intimated by the court.” (Citation and punctuation omitted.) Rawls v. State, 315 Ga. App. 891, 894 (2) (730 SE2d 1) (2012). Based on the record before us, we discern no error.

       In determining whether one crime is a lesser included offense of another crime for purposes of requests to charge, this Court has held that we apply the “required evidence” test set out in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). See Stuart v. State, 318 Ga. App. 839, 841-843 (734 SE2d 814) (2012). “Under the‘required evidence’test, the question is not whether the evidence actually presented at trial establishes the elements of the lesser crime, but whether each offense requires proof of a fact which the other does not.” (Citation omitted.) Id. at 841.
      As indicted in this case, the robbery by sudden snatching statute, OCGA § 16-8-40 (a) (3), requires proof that Copeland, with intent to commit theft, took the property of another from the person or the immediate presence of another by sudden snatching, whereas the theft by taking statute generally requires proof that the defendant has unlawfully taken the property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated. OCGA § 16-8-2. Because the offense of theft by taking does not require proof of a fact which is not also required for the offense of robbery by sudden snatching, theft by taking is a lesser included offense.


author: MCMlLLIAN, Judge.

text:
    A13A2081.
    STEPHEN A. WHEAT TRUST et al. v. SPARKS et al.
    (754 SE2d 640)
   MCMlLLIAN, Judge.

Stephen A. Wheat and Teresa M. McCrerey-Wheat (collectively “the Wheats”), as well as the Stephen A. Wheat Trust, dated September 14, 2009 and Stephen A. Wheat, as Trustee (collectively “the Wheat Trust”), sued Robert Ab Sparks IV and Louise Lackey Sparks (collectively “the Sparks”) for fraud arising out of the Sparks’ sale of a house to the Wheats. Following a hearing, the trial court entered judgment in favor of the Sparks, and this appeal followed. The Wheats and the Wheat Trust assert the following enumerations of error: (1) the trial court erred by granting summary judgment, as there was at least one genuine issue of material fact in dispute with regard to each element of their fraud claims; (2) the trial court erroneously held that the Wheat Trust did not have standing; (3) the trial court incorrectly found that Mr. Wheat was not damaged; (4) the trial court wrongly applied the merger doctrine; and (5) the trial court erred by granting summary judgment on their various derivative claims.

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. A de novo standard of review applies to an appeal from a grant or denial 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.

(Citation omitted.) Davis v. VCP South, LLC, 321 Ga. App. 503, 503-504 (740 SE2d 410) (2013).

So construed, the evidence shows that on August 14, 2009, the Wheats entered into a Purchase and Sale Agreement (“Agreement”) with the Sparks to purchase a residential property in the city of Decatur (“Property”). The Agreement incorporated a Seller’s Property Disclosure Statement dated March 5, 2009 (“Disclosure”). The Sparks conveyed the Property to the Wheats on September 14, 2009. At closing, the Sparks also signed an Owners’Affidavit. Upon taking title, the Wheats transferred the Property via a “Quitclaim Deed Spousal” to Ms. Wheat and the Wheat Trust.

The Sewer Lateral Encroachment

In Section 2(d) of the Disclosure, the Sparks represented that there were no “encroachments (known or recorded), leases, unrecorded easements, or boundary line disputes” regarding the Property. The Sparks also represented that the sewage system for the Property was public. In an addendum attached to the Disclosure, the Sparks further stated “[e]xterior sewer line replaced with PVC in 2005. All waterlines, including service line, were replaced with copper plumbing in 2006.” The Owners’Affidavit further reiterated that “there are no disputes . . . concerning the encroachment of any improvements including fences, driveways, structures, [etc.] onto the property of neighbors or vice versa.”

Approximately 18 months after taking possession of the Property, however, the Wheats experienced a problem with the sewer lateral servicing the Property. During the process of repairing the problem, they learned that the sewer lateral extended approximately 133 feet beyond the Property, including a portion that lay under both the property of their neighbors, the Gransdens, and another piece of heavily wooded land owned by the City of Decatur. At that time, Mr. Wheat contacted Emilie Markert, the Sparks’ real estate agent, regarding the sewer problem. In response, Ms. Markert forwarded an e-mail to Mr. Wheat from Mr. Sparks regarding the Sparks’ past troubles with the sewer lateral, including the following information: the “ ‘only small hurdle in making the replacement was the fact that the lateral crosses the Grandsen’s [sic] property.’ ” Mr. Sparks also sent another e-mail to Ms. Markert indicating that one of the sewer line’s “clean-outs” is on “the back corner of the Gransden property (quite near the city’s tap).” In a subsequent e-mail to Ms. Markert, Mr. Sparks confirmed that when they replaced the sewer lateral line in 2005, they “had to get permission from the next-door neighbor, Joe Gransden, to trench across the corner of his yard.” The Wheats eventually reached an easement agreement with the Gransdens and the City of Decatur to resolve the encroachments between the Property and the public sewer connection.

Basement Water Intrusion

In Section 7(a) of the Disclosure, the Sparks affirmed that there had been water leakage, water accumulation, or dampness within the basement. The addendum attached to the Disclosure further explained, “During very heavy rains the front corner of the basement occasionally became damp. Installed French drains down sides of house to draw water downhill and away from house.” While the Property was on the market, however, there is evidence that the Sparks were also aware of “three major leaks” and a “minor leak” in the months after they completed their Disclosure. During that time, Ms. Sparks set up fans (including additional borrowed fans) in the basement to dry the leaks before showing the Property. Although Ms. Markert advised the Sparks to update their Disclosure to acknowledge the continued leaks, they did not do so. On April 2, 2009, Ms. Sparks stated in an e-mail to their real estate agent:

I think Rob or my parents mentioned the leak in the basement —we have a piece of masonry missing in the basement, causing water to come in the front right corner, Rob has found someone to fix on Monday. We’ve had a water issue in the basement too, near the window facing the driveway, water is coming in off the deck. Rob has asked someone else to come over on Saturday to address — hopefully we’ll have this one done before the open house, and it doesn’t rain any time soon! Thanks again for your fans (I set them up this am at 6:30).

However, Ms. Sparks later deposed that she did not believe they ultimately made any repairs to correct the leaks identified in her e-mail. The Wheats visited the Property during an open house in April 2009, viewing the basement after it had been dried by the fans. After purchasing the Property, the Wheats experienced water leaks in the basement, which they undertook to repair.

Subsequently, on December 22, 2011, the Wheats and the Wheat Trust filed suit against the Sparks, asserting a claim for fraud based on misrepresentations as to the nature of the sewer lateral and for punitive damages and attorney fees. In their First Amended Complaint, the Wheats added an additional claim for fraud based on misrepresentations and active concealment of the water intrusion. Following discovery, the Sparks filed a motion for summary judgment, which the trial court granted on April 30, 2013.

1. On appeal, the Wheats assert that the trial court erred in granting summary judgment because there is at least one genuine issue of material fact in dispute with regard to each element of their fraud claims. Fraud requires proof of five elements: (i) false representation made by the defendant, (ii) knowledge by the defendant that the representation was false when made, (iii) intent to induce plaintiff to act or refrain from acting, (iv) justifiable reliance by the plaintiff, and (v) damage to the plaintiff. See, e.g., Keller v. Henderson, 248 Ga. App. 526, 527 (2) (545 SE2d 705) (2001).

“Fraud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie.” (Citation omitted.) Hudson v. Pollock, 267 Ga. App. 4, 6 (1) (598 SE2d 811) (2004). In addition, fraudulent inducement of a sale may be based on claims of fraudulent concealment where the seller, who knows of the defect, either (1) takes active steps to conceal it and prevent the buyer from discovering it or (2) passively conceals the defect by simply keeping quiet about it. See Browning v. Stocks, 265 Ga. App. 803, 804 (595 SE2d 642) (2004). Here, the Wheats assert fraud on the latter theory •— that the Sparks concealed the fact that the sewer lateral servicing the Property encroached onto the neighboring property and the fact that the basement had multiple, continued leaks.

2. As evidence of fraud regarding the encroachment of the sewer lateral, the Wheats point to the Sparks’ statement in Section 2(d) of the Disclosure that there were no known encroachments, their reiteration of this fact in their Owners’ Affidavit, and their silence as to the subterranean encroachment. The Sparks, on the other hand, although not disputing that the sewer lateral does run underneath the neighboring properties for approximately 133 feet, argue that because they made their disclosures based upon their understanding and personal knowledge, there was no actionable misrepresentation. Moreover, Mr. Sparks deposed that he did not disclose the encroachment to the Wheats because he “did not believe it to be material.”

Based on our review of the record, we find that whether the Sparks had knowledge as to the falsity of their representation and their intention to induce the Wheats to purchase the Property are issues of fact best left to a jury. We have frequently cautioned that “[q]uestions of fraud, the truth and materiality of representations made by a seller, and whether the buyer could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” (Citation and punctuation omitted.) Hudson, 267 Ga. App. at 6; see also Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 243 (1) (590 SE2d 224) (2003) (circumstantial evidence is usually required to prove fraud and “[e]xcept in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination”) (citation and punctuation omitted).

In support of their motion for summary judgment, Mr. Sparks submitted an affidavit showing that when they purchased the Property in 2004 from the previous owners, the seller’s disclosure statement likewise did not disclose any encroachment. However, we are not persuaded that the Sparks’ knowledge in 2004 regarding the sewer lateral encroachment is relevant to whether the Sparks knowingly made a false representation at the time that they induced the Wheats to purchase the Property in 2009. “For purposes of summary judgment, scienter and intent to deceive are determined on the basis of the seller’s knowledge of the falsity of his representations at the time made to the prospective purchaser.” (Citation and punctuation omitted.) Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 82 (1) (663 SE2d 779) (2008). More significantly, there is evidence in the record to support the Wheats’ assertion that the Sparks did in fact know of the encroachment as early as 2005, including admissions from Mr. Sparks that when they replaced the sewer lateral line in 2005, they had to get permission from their neighbors to trench across the corner of their yard.

The Sparks also argue that the Wheats were put on notice as to the previous problems with the sewer system, yet failed to exercise due diligence and therefore cannot prove justifiable reliance. The Wheats, however, point out that the sewer line servicing the property was subterranean and the encroachment of that line onto the neighboring properties was not something that they could have discovered through their own investigation until they were forced to excavate in 2011. Again, we find that the question of whether the Wheats justifiably relied on the Disclosure and the Sparks’ silence as to the encroachment is a question of fact for the jury. See Akins v. Couch, 271 Ga. 276 (518 SE2d 674) (1999) (jury is authorized to find a purchaser exercised due diligence even without checking publicly available records; therefore, the issue of whether the purchaser exercised reasonable diligence was a question for the jury). Because the Wheats have established that genuine issues of material fact remain with respect to their fraud claim regarding the sewer lateral encroachment, the trial court erred in granting summary judgment to the Sparks on that claim.

3. We likewise find that genuine issues of material fact exist regarding the Wheats’ fraud claim based on the basement water intrusion. The Sparks argue that they satisfied their duty of disclosure by acknowledging the past problem and disclosing “an attempted repair to the water leaks they experienced,” and the Wheats were therefore on notice of the defect and cannot show justifiable reliance. We disagree with the Sparks’ characterization of the additional information provided in the addendum to their Disclosure. A jury would be authorized to find that the Sparks’ explanation that “[d]uring very heavy rains the front corner of the basement occasionally became damp. Installed French drains down sides of house to draw water downhill and away from house” was stated in such a way as to induce a purchaser to believe that the problem was in the past and had been resolved, not that it was an “attempted” repair. Moreover, there is evidence — namely the e-mail communications between the Sparks and their real estate agent — that the Sparks were experiencing additional leaks at the time they were marketing the Property and that those current leaks were never disclosed. See Keller, 248 Ga. App. at 530 (5) (finding sufficient evidence of the seller’s knowledge of continued water leaks to create a genuine issue of material fact).

In this case, although the conclusion that the Wheats should have realized there may be additional water-related defects was authorized by the evidence, this conclusion was not demanded by the evidence. See Johnson, 292 Ga. App. at 83 (1). As discussed above, questions of fraud, including materiality of representations made by a seller and whether the buyer could have protected himself by the exercise of proper diligence are generally questions for the jury. See Hudson, 267 Ga. App. at 6; Westside Supply Co., 264 Ga. App. at 243 (2); Akins, 271 Ga. at 278-279 (3) (b) (whether the purchaser exercised reasonable diligence was a question for the jury and the trial court properly denied summary judgment for the sellers on this ground). We see no reason to find otherwise here. Because the Wheats have established a genuine issue of material fact as to their fraud claim regarding the basement water intrusion, the trial court erred in granting summary judgment to the Sparks on that claim.

4. The Wheats further assert that the trial court erred in finding that the Wheat Trust did not have standing. The Sparks argued, and the trial court agreed, that because the Wheat Trust was not a party to the Agreement, it is not in privity with the Sparks and therefore has no standing to bring a claim against them. As a general rule, the Sparks are correct that “an action on a contract. .. shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent.” OCGA § 9-2-20 (a). However, where misrepresentation of a material fact is wilfully made to induce another to act and upon which the other acts, privity is not necessary to give rise to the injured party’s cause of action. See Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 680-681 (300 SE2d 503) (1983). Therefore, the Wheat Trust’s lack of privity here is not an impediment to its standing to bring a fraud claim.

However, in order for a fraud claim to be actionable, the fraud must be based upon a misrepresentation made to a defrauded party and relied upon by the defrauded party. See Florida Rock & Tank Lines, Inc. v. Moore, 258 Ga. 106, 106 (1) (365 SE2d 836) (1988). Here, as the Sparks have noted, the Wheat Trust was not even in existence at the time the alleged misrepresentations (or fraudulent concealments) were made. Therefore, no evidence exists that the Wheat Trust relied on the alleged misstatements. See UWork.com, Inc. v. Paragon Technologies, Inc., 321 Ga. App. 584, 599 (5) (740 SE2d 887) (2013) (finding that, “for a misrepresentation to a third party to constitute actionable fraud under Florida Rock, the defrauded party must be induced to act or forbear from acting as a result of the misrepresentation made to the third part/’). Accordingly, we find that the trial court did not err in granting summary judgment as to the claims made by the Wheat Trust.

5. The Wheats next challenge the trial court’s holding that Mr. Wheat was not damaged. The Sparks contend, and the trial court agreed, that because Mr. Wheat conveyed his interest in the Property to the Wheat Trust, he was no longer an owner of the Property, and therefore, was not damaged by any alleged fraud. The Wheats, however, each averred that they individually expended time and money in securing an easement from the neighbors and the City of Decatur. They further averred that they each individually spent time and money in making the necessary repairs to the basement to prevent further leaks. Mr. Wheat also averred that the money expended in solving these two problems was paid for out of the Wheats’ joint checking account.

In addition, the Wheats pled for general damages. “General damages are those which the law presumes to flow from any tortious act, and they may be awarded on a fraud claim.” (Citation omitted.) Economic Exterminators of Savannah, Inc. v. Wheeler, 259 Ga. App. 192, 192 (1) (576 SE2d 601) (2003). Moreover, “[g]eneral damages awarded on a fraud claim may cover a broader range of damages than those awarded on contract claims.” (Citation omitted.) Cavin v. Brown, 246 Ga. App. 40, 43 (2) (a) (538 SE2d 802) (2000). This broader range of damages is not necessarily limited to pecuniary losses and includes inconvenience. See Johnson, 292 Ga. App. at 83 (1) (holding that material issues of fact remained as to whether, as a result of the alleged fraud, plaintiff suffered general damages, including wounded feelings and inconvenience). Because there is sufficient evidence in the record to allow a jury to find that Mr. Wheat was individually damaged, we find that the trial court incorrectly held that Mr. Wheat’s lack of ownership in the Property precluded his proof of damages.

6. The Wheats also argue that the trial court erred in applying the merger doctrine to their fraud claims. In the parties’Agreement, the following clause was included in Paragraph 18(c):

Binding Effect, Entire Agreement, Modification, Assignment: This Agreement constitutes the sole and entire agreement between all of the parties, supersedes all of their prior written and verbal agreements and shall be binding upon the parties and their successors, heirs and permitted assigns. No representation, promise or inducement not included in this Agreement shall be binding upon any party hereto. This Agreement may not be amended, modified or waived except upon the written agreement of Buyer and Seller. This Agreement may not be assigned by Buyer except with the written agreement of Seller. Any assignee shall fulfill all the terms and conditions of this Agreement.

Entire agreement clauses or merger clauses in affirmed sales contracts are commonly asserted as a defense by sellers to estop buyers from claiming that they relied on misrepresentations made outside the contract. See Browning, 265 Ga. App. at 806 (2). As noted above, the Wheats have elected to affirm the contract and sue for damages resulting from the alleged fraud. Generally, in electing this remedy, “[b] ecause the allegedly defrauded party elected to affirm the contract, that party is bound by the contract’s terms and is subject to any defenses which may be based on the contract.” (Citation omitted.) Keller, 248 Ga. App. at 528 (2).

However,

where a buyer affirms the sales contract and sues claiming, not that the seller made extracontractual oral or written misrepresentations about the purchased property, but that the seller actively or passively concealed damage or defects in the purchased property, there is no basis for using an entire agreement clause in the sales contract as a defense to the suit.

Browning, 265 Ga. App. at 806 (2). Because the Wheats claim that the Sparks concealed defects in the Property, the merger clause does not apply to their claims of fraud, and the Wheats are not limited to the four corners of the Agreement. Moreover, we note that it is undisputed that the Disclosure Statement itself was made a part of the contract. We also find that the Owners’ Affidavit is a subsequent representation not covered by the merger clause. Therefore, the trial court erred in concluding that the Wheats were barred from claiming that they relied on misrepresentations not contained within the Agreement.

7. In their final enumeration of error, the Wheats claim that the trial court erred in granting summary judgment on their derivative claims for punitive damages, attorney fees, and litigation costs and expenses. An award of attorney fees, costs, or punitive damages is derivative of a plaintiff’s substantive claims. See, e.g., Daimler-Chrysler Motors Co. v. Clemente, 294 Ga. App. 38, 52 (5) (668 SE2d 737) (2008). Fraud is an intentional tort for which punitive damages may be awarded. See Zieve v. Hairston, 266 Ga. App. 753, 761 (598 SE2d 25) (2004). Furthermore, where a plaintiff has set forth a valid claim for an intentional tort, such as fraud, he may be entitled to recover the expenses of litigation, including attorney fees. See Bunch v. Byington, 292 Ga. App. 497, 504-505 (5) (664 SE2d 842) (2008). Because the trial court erred in granting summary judgment on Mr. and Ms. Wheat’s substantive fraud claims, the court likewise erred in granting summary judgment on their request for attorney fees, costs, and punitive damages as derivative of those claims.

Decided February 6, 2014.

Davis, Matthews & Quigley, Ron L. Quigley, Matthew R. Thiry, for appellants.

Williams Teusink, R. Kyle Williams, for appellees.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Dillard, J., concur.

       A sewer lateral is an underground pipe that connects a house or business to a city or county sewer line.

       For ease of reference, we will hereinafter refer to all four Appellants as the Wheats, except where needed for clarity.

       A purchaser claiming he was fraudulently induced to enter into a sales contract has an election of remedies:
      (1) promptly after discovering the fraud he may rescind the contract and sue in tort for recovery of the purchase price and for any additional damages resulting from the alleged fraud; or (2) he may affirm the contract and sue for damages resulting from the fraud. This second suit, however, is not one for breach of contract, but one in tort. As these suits involve affirmance of the contract, the defrauded party may keep the benefits of the contract and still maintain an action for damages suffered because of the fraud.
      (Citation omitted.) Keller v. Henderson, 248 Ga. App. 526, 528 (2) (545 SE2d 705) (2001). The Wheats have elected to seek the second remedy.

       It appears from the record that the Wheats initially included an additional claim for fraud based on the Sparks’ characterization of the sewer as public. However, in their briefing before this Court, the Wheats acknowledge that the sewer does eventually connect to the public sewer system. Therefore, we do not address that claim. See Tackett v. Ga. Dept. of Corrections, 304 Ga. App. 310, 310, n. 1 (696 SE2d 359) (2010).

       The Sparks contend that this matter is a classic case of a party having equal knowledge and equal means of discovering the details of the Property and cite to Rustin Stamp & Coin Shop, Inc. v. Ray Bros. Roofing & Sheet Metal Co., Inc., 175 Ga. App. 30, 32 (332 SE2d 341) (1985), as support. However, Rustin Stamp is distinguishable. There, both the plaintiff and defendant were aware of the incident that allegedly caused the damage, and both were equally unaware at the time of the extent of the damage. Here, only the Sp arks were aware of the extent of the leaks in the basement.

       The Sparks make an attempt to argue that there is no admissible evidence supporting the Wheats’ allegation that the Sparks used fans to dry the basement leaks. However, they fail to argue with any specificity what proffered evidence they are referring to and why it is inadmissible, nor do they cite to any authority in support of their conclusory statement.

       Although there is a limited exception to this general rule where “A, having as his objective to defraud C, and knowing that C will rely upon B, fraudulently induces B to act in some manner on which C relies, and whereby A’s purpose of defrauding C is accomplished,” there is no indication in the record that the Sparks even knew that the Wheat Trust would be created following the closing on the Property. (Citation and punctuation omitted.) UWork.com, Inc. v. Paragon Technologies, Inc., 321 Ga. App. 584, 599 (5) (740 SE2d 887) (2013). Therefore, that limited exception is not applicable here.

       We will affirm the grant of summary judgment if it is right for any reason. See, e.g., Travelers Excess and Surplus Lines Co. v. City of Atlanta, 297 Ga. App. 326, 326 (677 SE2d 388) (2009).

       Even if the Sparks are correct that their Owners’ Affidavit was not made a part of the Agreement and subject to the merger clause, thereby preventing the Wheats from using it as the basis for their claim that they were fraudulently induced to enter into the Agreement by misrepresentations in that affidavit, we have previously held that such statements are otherwise relevant. See Browning, 265 Ga. App. at 806 (2) (holding that the seller’s separate property disclosure statement was relevant to the buyers’ claim that the seller fraudulently induced the sale by actively concealing termite damage).


author: Branch, Judge.

text:
    A13A2292.
    THOMAS v. THE STATE.
    (754 SE2d 661)
   Branch, Judge.

In a scuffle that Timothy Thomas started by pointing a loaded gun at Dennis Lopez’s head, Lopez was shot and injured in both hands. Following a trial by jury, Thomas was convicted and sentenced on one count of aggravated assault for pointing the gun at Lopez; two counts of aggravated battery — one for each injury to Lopez’s hands; and one count of possession of a firearm by a convicted felon. On appeal, Thomas contends that for the purpose of sentencing, the trial court erred by failing to merge the two convictions of aggravated battery and by failing to merge the conviction of aggravated assault with the remaining conviction of aggravated battery. We find no error and affirm.

Construed in favor of the verdict, the evidence shows that as of October 26, 2008, Olga Shashkova and her two children lived with defendant Thomas at Cherokee Summit Apartments. On her way to work that day, Shashkova took Thomas and the children to a nearby lake to go fishing. After work, Shashkova picked them up and saw that Thomas was “extremely” drunk and that Thomas and the children had found a kitten. Back at the apartment complex, the children took the kitten outside but returned saying that a pitbull had barked and scared the kitten. Thomas went into his bedroom, got his .385 caliber revolver, and went outside.

At the same time, Lopez was visiting his girlfriend in the same apartment complex and was keeping his American pitbull terrier on the outdoor patio of his girlfriend’s apartment. At one point in the evening, Lopez heard someone yelling “shut up,” went outside, and saw Thomas, who threatened to shoot either Lopez or the dog. Lopez went back inside but almost immediately heard Thomas yelling again. Lopez again went outside, and Thomas approached and pointed a gun at Lopez’s face. Lopez put his hands up and took two steps back, but Thomas continued to approach, and he pointed the gun at Lopez’s forehead, at what Lopez described as “point blank range,” with his finger on the trigger. Lopez grabbed for the gun with his left hand to try to avoid getting shot, but when he did, the gun went off and the bullet went through Lopez’s left hand. The struggle continued with the two men spinning around trying to pull the gun away from each other, during which the gun went off two more times. One shot severely and permanently injured Lopez’s right thumb, rendering it essentially useless. The two men continued to struggle for the gun on the ground, and Lopez was able to get control of the gun in Thomas’s hand and shoot it into the ground several times in order to empty the gun of all bullets. Thomas then got off of Lopez, who carried the gun into his girlfriend’s apartment and locked the door, thereby ending the altercation.

1. Thomas does not challenge the sufficiency of the evidence. Rather, he contends the trial court erred by failing to merge the two counts of aggravated battery. But where different conduct of the accused causes separate aggravated batteries on the victim, the accused may be convicted and sentenced for each crime. Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011). See also John v. State, 282 Ga. 792, 795 (6) (653 SE2d 435) (2007) (“if one crime is complete before the other takes place, the two crimes do not merge”). In Ledford, the defendant was charged with three aggravated batteries for stomping on the victim’s face and nose, her larynx, and her ribs. Ledford, 289 Ga. at 71 (1). Because each count was predicated on different conduct by the defendant that caused separate injuries to the victim, the defendant’s convictions on the three aggravated batteries did not merge with each other. Id. at 72 (l).

Here, each count of aggravated battery required the State to prove that Thomas shot Lopez separate times and injured him in a different way: the first count of aggravated battery charged that Thomas rendered Lopez’s right thumb useless by shooting it, and the second count charged that Thomas seriously disfigured Lopez’s left hand by shooting it. Thus, each aggravated battery verdict was “attributable to different conduct than the other aggravated battery verdict[ ],” Ledford, 289 Ga. at 72 (1) (citation omitted), that is, Thomas fired the gun on separate occasions causing injury to each of Lopez’s hands. The trial court, therefore, was not required to merge the two counts of aggravated battery.

2. Thomas also urges that his conviction of aggravated assault for pointing the gun at Lopez’s head should merge into one or more of his convictions of aggravated battery because the subsequent batteries were “part and parcel of the original act” of pointing the gun.

After Thomas initially pointed the gun at Lopez’s head, Lopez raised his arms and retreated in defense. Thomas then moved forward and pointed the gun at Lopez at close range, which prompted Lopez to struggle for the gun in self-defense. Only then was Lopez shot in each hand. Thus Lopez’s initial aggravated assault prompted Lopez to move defensively, and Thomas then took a separate action of moving toward Lopez, which led to the struggle that resulted in Lopez getting shot in each hand. It follows that Thomas’s initial act of pointing the gun at Lopez’s head, an aggravated assault, was a separate act from the ensuing acts of aggravated battery. Accordingly, the crimes do not merge. See, e.g., Brockington v. State, 316 Ga. App. 90, 93 (1) (728 SE2d 753) (2012) (aggravated assault of striking victim in leg with hammer did not merge with aggravated battery of moments later striking victim in head with hammer causing serious permanent injury); Yates v. State, 298 Ga. App. 727, 730-731 (3) (681 SE2d 190) (2009) (where victim was threatened with a gun, then struck with the gun and a separate object, then shot, all in an attempt by the defendant to rob the victim, the trial court “was authorized to conclude that the physical beating and either incident of gun use were separate completed crimes”) (citation omitted). The trial court therefore correctly decided not to merge the convictions for aggravated assault and aggravated battery.

Decided February 6, 2014.

Sharon L. Hopkins, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Patricia G. Hull, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       Thomas primarily relies on Gonzales v. State, 298 Ga. App. 821 (681 SE2d 248) (2009), but Gonzales is inapposite because it addressed whether a single act of pushing the victim out of a car could support multiple convictions of aggravated battery. All of the remaining cases cited by Thomas are inapposite because they concern whether lethal and nonlethal injuries to the victim can support a conviction of aggravated assault in addition to a murder conviction. See Reddings v. State, 292 Ga. 364, 366 (2) (738 SE2d 49) (2013); Alvelo v. State, 290 Ga. 609, 611 (2) (724 SE2d 377) (2012); Culpepper v. State, 289 Ga. 736, 738 (2) (a) (715 SE2d 155) (2011); Mikell v. State, 286 Ga. 722, 724 (3) (690 SE2d 858) (2010); Coleman v. State, 286 Ga. 291, 295 (3) (687 SE2d 427) (2009); Fitzpatrick v. State, 268 Ga. 423, 424 (1) (489 SE2d 840) (1997).

       Under OCGA § 16-5-21 (a) (2), “[a] person commits the offense of aggravated assault when he or she assaults . . . [wjith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Under OCGA § 16-5-24 (a) “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.”

       Because the two convictions are based on separate acts, the required evidence test of Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006), is inapplicable. See Ledford, 289 Ga. at 72 (1).


author: McMillian, Judge.

text:
    A13A2420.
    ADC INVESTMENTS, LLC v. DEPARTMENT OF TRANSPORTATION.
    (754 SE2d 648)
   McMillian, Judge.

In this condemnation action, ADC Investments, LLC (“ADC”) appeals the trial court’s partial grant of summary judgment, precluding ADC from presenting evidence about an anticipated stream of income from a changeable, digital billboard which ADC claims would likely have been installed on the condemned property. The Georgia Department of Transportation (“DOT”), on the other hand, asserts that ADC’s damages are limited to the value of the property as it existed on the date of the taking, i.e., with a static billboard, since zoning ordinances at the time barred the construction of a digital billboard on the site. Based on our review of the record, we reverse and remand for further proceedings consistent with this opinion.

The facts are largely undisputed. This condemnation action involves a 25-square foot parcel of real property located in the City of Lawrenceville, Gwinnett County, Georgia, near the intersection of Highway 316 and State Route 20. The only improvement on the property on the date of the taking, February 11, 2011, was a static, double-faced billboard. An entity related to ADC, Crown Media, LLC (“Crown Media”) owned the property. In 2003, Crown Media leased the site to ADC under a 99-year lease (the “Lease”), and ADC in turn subleased the parcel to The Lamar Company, LLC (“Lamar”). The sublease commenced on the same date as the Lease and also had a 99-year term (the “Sublease”). As of the date of the taking, the Lease and the Sublease both had remaining terms of approximately 91 years.

The Sublease provided for a minimum fixed guaranteed annual rent payable from Lamar to ADC and also provided for an alternative rent calculation whereby Lamar would pay ADC 25 percent of its net revenues if such amounts exceeded $12,000 per year. The Sublease also authorized Lamar to alter or replace the billboard structure itself during the term of the Sublease.

As of the date of taking, the City of Lawrenceville had in place an outdoor advertising sign ordinance which specifically prohibited digital signs in all zoning districts, except for nonprofit entities under certain circumstances. However, on February 7, 2011, four days before the taking, the City of Lawrenceville, in a meeting of the mayor and council, conducted a “first reading” of an amendment to the ordinances that would specifically permit digital signs under certain circumstances, and less than four months after the date of taking, the City of Lawrenceville amended its sign ordinances to permit digital advertising at certain sites, including the corridor abutting ADC’s property. Nine months after the taking, the City of Lawrenceville authorized Lamar to erect a digital billboard within 100 feet of and immediately adjacent to the site. A Lamar executive also testified that Lamar would have located a digital billboard upon the ADC property but for the condemnation. During discovery, ADC presented expert testimony about the anticipated stream of income from the digital billboard and its potential effect on the value of its leasehold interest.

In advance of trial, DOT moved for partial summary judgment, asserting that ADC should not be able to present evidence on this anticipated future income stream because the site should be valued as of the date of taking and the conversion to digital was impermissibly remote and speculative. The trial court agreed, and this appeal followed.

1. In three related enumerations of error, ADC asserts that the trial court erred in granting partial summary judgment to DOT, thereby precluding ADC from recovering just and adequate compensation as a result of the taking. See Ga. Const, of 1983, Art. I, Sec. Ill, Par. I (a). In conducting this de novo review of the grant of summary judgment, we keep this principle in mind: “It has long been the policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective minds in determining the just and adequate compensation to be paid the condemnee.” (Citation and punctuation omitted.) Gwinnett County v. Ascot Investment Co., 314 Ga. App. 874, 877 (2) (726 SE2d 130) (2012).

But this liberality is not without its bounds. In the context of evidence of zoning changes that could affect value, our Supreme Court has held that “[f]or such evidence to be admissible, the condemnee must show that a change in zoning to allow the usage is probable, not remote or speculative, and is so sufficiently likely as to have an appreciable influence on the present market value of the property.” Unified Govt. of Athens-Clarke County v. Watson, 276 Ga. 276, 277 (577 SE2d 769) (2003) (relying on Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992) and Civils v. Fulton County, 108 Ga. App. 793, 797 (134 SE2d 453) (1963)). See also Dept. of Transp. v. Jordan, 300 Ga. App. 104, 105-106 (684 SE2d 141) (2009). Moreover, when considering a different potential use for a condemned property:

The fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation; it must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land.

(Citation omitted.) Dept. of Transp. v. Patten Seed Co., 290 Ga. App. 532, 532 (1) (660 SE2d 30) (2008). See also Woodland Partners Ltd. Partnership v. Dept. of Transp., 286 Ga. App. 546, 550 (3) (650 SE2d 277) (2007).

2. With these principles in mind, we turn now to the primary issues in this case — whether it was reasonably probable and sufficiently likely that the City of Lawrenceville’s sign ordinances would have been amended to allow a digital billboard, that once permitted it was reasonably probable that Lamar would have converted the static billboard to digital, and that such changes would have had an appreciable impact on the value of the property at the time of taking.

With respect to these issues and in opposition to the motion for partial summary judgment, ADC propounded evidence of: (1) a high demand for digital advertising in the area surrounding the property; (2) the property was particularly suited for digital advertising; (3) four days before the date of taking, the City of Lawrenceville began the process of amending its sign ordinances to allow for digital billboards and the ordinances were actually amended nine months after the taking; (4) after the sign ordinances were amended, Lamar constructed a digital billboard within 100 feet of the condemned property and adjacent to the property; and (5) a Lamar executive testified that Lamar preferred the ADC property as a location for the digital billboard and would have converted the billboard to digital, but for the condemnation. Moreover, ADC produced expert testimony showing that the present market value of its leasehold interest would be significantly impacted with a digital billboard in place.

Based on this record, we find that genuine issues of material fact exist as to the reasonable probability that the sign ordinances would have been amended and the billboard converted to digital and that these changes would have an appreciable impact on the present market value of ADC’s property interest. See Watson, 276 Ga. at 277 (trial court did not abuse discretion in permitting experts to opine “that based on their review of the property and surrounding areas and with knowledge of the current zoning status of the property, there was a reasonable or high probability that the property would be rezoned for multi-family use”); Hall County v. Merritt, 233 Ga. App. 526, 526 (1) (504 SE2d 754) (1998) (allowing testimony that property was a suitable site for a private landfill, that the county was already operating a landfill in close proximity to the condemned property, and that private landfills were an increasingly common alternative for local governments); Ga. Power Co. v. Cole, 141 Ga. App. 806, 807 (1) (234 SE2d 382) (1977) (allowing evidence of plans to develop land for a mobile home park when owner testified that he investigated development costs, other mobile home parks were operating nearby, there was a demand for additional parks, and the property was particularly well suited for that use).

DOT argues that the re-zoning and conversion of the billboard are too remote and speculative to be considered as a matter of law. But we find the cases relied upon by DOT to be distinguishable. Those cases involve unimproved land which the condemnee claimed should be valued as if subdivided and developed, Dept. of Transp. v. Benton, 214 Ga. App. 221 (447 SE2d 159) (1994); Woodland Partners, 286 Ga. App. at 550-551, or anticipated lost profits from a business that had yet to be established, Davis Co., Inc. v. Dept. of Transp., 262 Ga. App. 138 (584 SE2d705) (2003); Flint v. Dept. of Transp., 223 Ga. App. 815 (479 SE2d 160) (1996). In this case, ADC has a long-term leasehold interest that anticipates possible alteration of the billboard in existence on the date of taking.

DOT further asserts that even if the conversion to a digital billboard was reasonably probable, ADC’s expert evidence is inadmissible because “the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can consider the new use only to the extent that it affects the market value on the date of taking.” (Citation and punctuation omitted; emphasis in original.) Woodland Partners, 286 Ga. App. at 550 (3). But our review of ADC’s experts’ deposition testimony reveals that they opined about the present market value of ADC’s leasehold interest and used discounts to account for the time it would take to convert the billboard as well as generally discounting the stream of anticipated income. Patten Seed, 290 Ga. App. at 534 (1) (noting that the valuation experts had discounted for the fact that the commercial use had not been effectuated). As a result, we find that the trial court erred to the extent that it granted summary judgment on this basis. See Ascot Investment, 314 Ga. App. at 878.

Decided February 6, 2014.

Mahaffey Pickens Tucker, Gerald Davidson, Jr., for appellant.

Samuel S. Olens, Attorney General, Luther H. Beck, Jr., Assistant Attorney General, Chandler, Britt, Jay, Beck & Zwald, J. Russell Little, for appellee.

Accordingly, for the foregoing reasons, we reverse the partial grant of summary judgment and remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Andrews, P. J., and Dillard, J., concur.

       We review a grant of partial summary judgment under a de novo standard of review and construe the evidence in the light most favorable to the nonmovant. See Thornton v. Ga. Farm Bureau Mut. Ins. Co., 297 Ga. App. 132, 132 (676 SE2d 814) (2009).

       Lamar is not a party to this appeal, and it appears that Lamar separately settled its claims with DOT.

       It appears that the new digital billboard was permitted to resolve unrelated litigation between the City of Lawrenceville and Lamar.

       This protection against the taking of private property for public purposes without just and adequate compensation extends to leasehold interests such as those possessed by ADC. See The Lamar Co., LLC v. State of Ga., 256 Ga. App. 524, 525 (1) (568 SE2d 752) (2002).

       DOT argues that because ADC did not have the right to convert the billboard to digital, evidence of the likelihood that Lamar would construct a digital billboard on the site is too remote and speculative. DOT, however, discounts Lamar’s testimony about its intentions and fails to recognize that under the Sublease, the value of ADC’s leasehold interest is tied to the rents that Lamar is able to earn from whatever billboard is on the site.

       DOT argues that ADC witness Ronald J. DeThomas, Jr., offered contradictory testimony when he stated at deposition that he did not know whether the City of Lawrenceville allowed digital signs in February 2011 and later testified by affidavit that before February 2011 he had looked into converting the billboard to digital. Consequently, DOT calls into question the validity of the remainder of Mr. DeThomas’ testimony under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). But we do not find this testimony to be contradictory and therefore decline to apply the Prophecy rule. See Bradley v. Winn-Dixie Stores, 314 Ga. App. 556, 559 (724 SE2d 855) (2012). Moreover, we note that the Prophecy rule applies to that portion of the testimony that is purportedly contradictory and does not permit the court to ignore the testimony given by any particular witness in toto.

       We caution that nothing in this opinion is intended to limit DOT’s cross-examination of ADC’s witnesses at trial on these grounds.