Sure, Inc. v. Premier Petroleum, Inc.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 19, 2017

In the Court of Appeals of Georgia
A17A1103. SURE, INC. v. PREMIER PETROLEUM, INC.

MCMILLIAN, Judge.

Sure, Inc. (“Sure”) appeals from the trial court’s grant of summary judgment

on its claims against Premier Petroleum, Inc. (“Premier”) arising out of a petroleum

supply contract and loan documents executed by the parties. For the reasons set forth

below, we reverse the trial court’s grant of summary judgment on Sure’s claim for

breach of contract, affirm the grant of summary judgment on Sure’s claim for

wrongful foreclosure, and affirm in part and reverse in part the grant of summary

judgment on Sure’s claim of fraud.

It is well settled that

[s]ummary 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).

So viewed, the evidence of record shows that at the pertinent time, Sure owned

and operated a convenience store and gas station in Suwanee, Georgia (the “Station”).

Natt Nwokolo is the president, secretary, and majority shareholder of Sure.1 Premier

is a Georgia petroleum supplier/distributor, and Aziz Dhanani is its president. Premier

conducts its business by purchasing gasoline from a branded oil company at

wholesale and then providing the gasoline to various retail gas stations and

convenience stores.

Supply Agreement

In December 2009, Nwokolo decided to rebrand the Station from a CITGO to

a Shell Oil station. In conjunction with that decision, Nwokolo spoke with

representatives of Premier, and on December 11, 2009, Sure and Premier entered into

1
Nwokolo testified in his February 2016 deposition that he was the sole
shareholder of Sure, but he averred in his October 2016 affidavit that he was the
“majority shareholder.”

2
a Contract Supply Agreement (the “Supply Agreement”), which provided that

Premier would be the exclusive supplier of petroleum products to the Station and that

Sure would purchase a minimum of 60,000 gallons of such products per month.

Under the terms of the Supply Agreement, Premier agreed to assist Sure by

processing its credit card payments, and Sure was required to pay for gasoline

deliveries at the time of delivery. Additionally, Premier agreed to pay Sure a rebate

of $.02 per gallon for a period of three years beginning after the Station was

completely rebranded and accepted by Shell.

Loan from Premier to Sure

Certain renovations were required as part of the re-branding of the Station, and

Nwokolo also decided to update the Station’s gas pumps. Premier agreed to lend Sure

money to help accomplish these changes (the “Loan”), and the parties executed loan

documents, including a $56,000 promissory note (the “Note”) and a “Deed to Secure

Debt, Assignment of Leases and Rents and Security Agreement” (the “Deed to Secure

Debt”), both signed by Sure, as well as a personal guaranty signed by Nwokolo. The

Deed to Secure Debt granted Premier a security interest in a one-acre lot owned by

Sure adjacent to the Station (the “Adjacent Property”).

3
 At or around the time of the closing on the Loan, Premier issued a check dated

January 28, 2010, in the amount of $6,000 to Sure. Then, on February 8, 2010,

Premier issued a check on behalf of Sure in the amount of $14,000 to a third-party,

B & B Petroleum System Services, Inc. (“B&B”), toward the replacement or

refurbishment of the gasoline pumps. Although Premier produced written

documentation showing Nwokolo’s authorization for Premier to pay $50,000 of the

Loan proceeds to B & B (the “Authorization”), Nwokolo asserts that he never

authorized that any of the Loan proceeds be paid to B&B, he never signed the

Authorization, and the signature on that document is a forgery. Rather, he believed

that all the Loan proceeds would be paid to Sure directly.

Nwokolo wrote Premier a letter dated February 25, 2010, to inform the

company that Sure had decided not to accept the $56,000 Loan, noting that Sure had

only received $6,000 of the Loan proceeds as of that date. Nwokolo represented that

he had asked B&B, and it had agreed, to refund the $14,000 payment back to Premier,

and he stated that he intended to refund the $6,000 paid to Sure. However, the letter

was not mailed until March 17, 2010.

Premier responded by letter dated March 19, 2010, noting that the first payment

under the Note, due on March 1, 2010, had not been paid. The March 19 letter gave

4
Sure five days in which to pay the $20,000 in Loan proceeds that Premier had paid

out. Premier again wrote Nwokolo and Sure on April 14, 2010, to give notice that

Sure was in default under the terms of the Note and that the company could cure the

default by paying the sum of $4,515.27, representing the outstanding Loan payments

for March and April 2010, including interest. Premier next wrote Sure and Nwokolo

on October 13, 2010, demanding payment of all amounts due and owing under the

Note and informing them that, in the absence of such payment within the next ten

days, Premier intended to pursue legal action, including foreclosure under the Deed

to Secure Debt. Neither Sure nor Nwokolo has ever returned the $6,000 Sure received

in January 2010 nor have they ever paid Premier any amounts under the terms of the

Loan documents. Premier subsequently foreclosed on the Adjacent Property, and as

the highest bidder at the foreclosure sale, Premier acquired that property (the

“Foreclosure”).

Despite this Loan dispute, Premier and Sure continued to operate under the

terms of the Supply Contract, with Premier continuing to supply Sure with Shell

gasoline. At some point, Premier adopted the practice of withholding the credit card

payments it was servicing for Sure and netting them against the cost of Sure’s

gasoline purchases, maintaining a running credit balance on Sure’s behalf.

5
 Bankruptcy Proceedings

On June 3, 2011, after the Foreclosure, Sure filed for bankruptcy in federal

court to stop Premier from proceeding against its business as well. That bankruptcy

action was dismissed on September 21, 2012, and Sure was not discharged in that

proceeding.

Sure filed a second bankruptcy action on November 5, 2012 (the “Second

Bankruptcy Action”). During the course of that proceeding, Sure filed a “Notice of

Rejection and Motion to Approve Rejection of the Executory Contract Between Sure,

Inc. and Premier Petroleum, Inc.” (“Motion to Reject”), seeking to relieve itself of its

future obligations under the Supply Agreement, and the bankruptcy court granted that

motion, approving Sure’s rejection of that agreement on April 29, 2013. Sure

subsequently filed a motion in the bankruptcy court to compel Premier to turn over

credit card receipts it claimed Premier was wrongfully withholding under the Supply

Agreement. The bankruptcy court denied the motion, instead determining that Sure

should seek relief in the form of an adversary proceeding. On June 17, 2013, the

trustee in the Second Bankruptcy Action filed a motion to dismiss or convert the

action on the grounds that Sure had failed to file monthly operating reports as

required and had also failed to pay administrative fees that were due and owing. The

6
bankruptcy court granted the trustee’s motion and dismissed the Second Bankruptcy

Action on October 2, 2013, without granting Sure a discharge.2

Current Lawsuit

On February 2, 2015, Sure filed the complaint in this action and seeks recovery

against Premier for breach of contract, fraud, and wrongful foreclosure. Sure claims

it is entitled to recover credit card proceeds that Premier has wrongfully withheld; to

recover a $.02 per gallon rebate on the gasoline it purchased from Premier; and to

have the foreclosure on the Adjacent Property declared null and void. Premier

answered denying liability and moved for summary judgment on Sure’s claims.

The trial court granted Premier’s motion finding that Sure (1) could not sue

Premier for breach of contract because Sure rejected the Supply Agreement in the

Second Bankruptcy Action; (2) is judicially estopped from claiming the $.02 per

gallon rebate because it never listed this claim as an asset of its bankruptcy estate; (3)

is collaterally estopped from re-litigating the issue of any credit card monies because

the issue was already decided adversely to Sure in the Second Bankruptcy Action; (4)

is not entitled to a claim for wrongful foreclosure because it never paid the monies

2
Additional facts will be discussed as necessary to address the parties’
appellate arguments.

7
due and owing under the Note and because it never tendered the amount due; and (5)

is not entitled to relief on its fraud claims because it failed to plead fraud with

particularity, failed to provide evidence of any false representations by Premier,

signed documents containing merger clauses, and failed to provide evidence of

reasonable reliance. This appeal followed.

1. Breach of Contract – Sure first asserts that the trial court erred in finding

that its breach of contract claim is barred by the proceedings in the Second

Bankruptcy Action. We agree.

(a) Sure filed its Motion to Reject pursuant to 11 U.S.C. § 365, and the

bankruptcy court approved Sure’s rejection of the Supply Contract, as an executory

contract. Premier argued below, and the trial court found, that Sure’s rejection

amounted to a rescission or dissolution of the Supply Contract in its entirety, leaving

Sure without standing to sue for breach of contract.

It is well settled that “[r]ejection of an executory contract under § 365 of the

Bankruptcy Code constitutes a breach and the injured party is entitled to assert a

claim based thereon.” Puett v. McCannon, 183 Ga. App. 152, 154 (1) (358 SE2d 300)

(1987). However,

8
 rejection does not embody the contract-vaporizing properties so
commonly ascribed to it. Rejection merely frees the [bankruptcy] estate
from the obligation to perform; it does not make the contract disappear.
More specifically, rejection has absolutely no effect upon the contract’s
continued existence; the contract is not cancelled, repudiated, rescinded,
or in any other fashion terminated.

(Citations and punctuation omitted.) Thompkins v. Lil’ Joe Records, Inc., 476 F3d

1294, 1306 (1) (11th Cir. 2007). Therefore, while rejection under § 365 affects the

parties’ future performance under an executory contract, it does not affect the

provisions of the agreement that have been fully executed. See id. at 1307 (1) (where

transfer of artist’s copyrights completed at time sales contract executed, such rights

did not revert to artist upon purchaser’s rejection of the parties’ agreement);

Lawrence v. Commonwealth of Kentucky Trans. Cabinet (In re Shelbyville Road

Shoppes, LLC), 775 F3d 789, 797 (6th Cir. 2015) (“Section 365, including its

provision for rejection, addresses only future performance obligations of the parties.”)

(citation and punctuation omitted); Murphy v. C & W Ltd. Corp. (In re Murphy), 694

F2d 172, 174 (8th Cir.1982). (“[R]ejection of an executory contract . . . is not the

equivalent of rescission.”); In re Exec. Technical Data Systems, 79 BR 276, 282

(Bankr. E.D. Mich. 1987) (A rejection in bankruptcy does not require “the reversal

9
or undoing of already executed provisions” because § 365 “does not have any impact

upon the executed portions of a contract.”).

Sure asserts two breach of contract claims: (1) for non-payment of the $.02 per

gallon rebate and (2) for return of the credit card proceeds it asserts Premier has

wrongfully withheld. These claims do not address issues of future performance.

Rather, Sure is taking the position that it completely rebranded the station and the

rebranding was accepted by Shell and that Premier breached the contract by failing

to pay the $.02 rebate during the ensuing three years. We find that the rejection of the

Supply Agreement in bankruptcy does not bar such a claim. Likewise, Sure’s claim

that Premier has wrongfully withheld credit card proceeds, over and above any

amounts Sure owed Premier, also relates to an executed portion of the contract. It

appears that Premier has processed the credit card sales, and Sure has paid for its

gasoline purchases. Sure simply seeks to recover any overages retained by Premier.

The rejection in bankruptcy does not bar such a claim.

The case of Speir v. Nicholson, 202 Ga. App. 405 (414 SE2d 533) (1992), upon

which the trial court relied in holding otherwise, is readily distinguishable. In that

case, the parties closed on the sale of a business, which filed for bankruptcy shortly

thereafter, before the terms of the sale were completed by either party. The business’s

10
assets were never transferred to the purchaser, and the purchaser never completed

payment. A third-party beneficiary under the contract sued to compel the purchaser

to complete payment for the business assets. However, the bankruptcy trustee had

already sold those assets to another buyer, and the Speir court found that this action

was a repudiation of the contract (equivalent to a formal rejection under § 365) “to

the extent that it was executory, thereby discharging the purchasers from further

performance” under its terms. 202 Ga. App. at 406-07 (1). Therefore, the Speir

court’s ruling supports our finding that a rejection in bankruptcy affects only future

performance. The Court further held, under the facts of that case, that because neither

party had completed performance under the contract, there was a failure of its

underlying consideration, which barred the third-party beneficiary’s claim. Id. at 408

(2). Here, in contrast, Sure contends that it fully performed by completing the

rebranding of the station and making payment for gasoline deliveries; therefore, no

failure of consideration occurred, and the non-executory provisions of the Supply

Agreement remain enforceable. Accordingly, the trial court erred in finding that the

rejection in bankruptcy deprived Sure of its claims for breach of contract.

11
 (b) Sure also asserts that the trial court erred in finding that its claim for the

rebate is judicially estopped by its failure to list the claim in its petition in the Second

Bankruptcy. Once again, we agree.

“The federal doctrine of judicial estoppel precludes a party from asserting a

position in one judicial proceeding after having successfully asserted a contrary

position in a prior proceeding.” Period Homes v. Wallick, 275 Ga. 486, 488 (2) (569

SE2d 502) (2002). “It is most commonly invoked to prevent bankruptcy debtors from

concealing a possible cause of action, asserting the claim following the discharge of

the bankruptcy and excluding resources from the bankruptcy estate that might have

otherwise satisfied creditors.” Id. See also American Nat. Bank of Jacksonville v. Fed.

Deposit Ins. Corp., 710 F2d 1528, 1536 (11th Cir.1983) (“The doctrine is designed

to prevent parties from making a mockery of justice by inconsistent pleadings.”)

(citation omitted).

Georgia courts consider three factors to determine whether the doctrine bars

a claim:

(1) the party’s later position must be “clearly inconsistent” with its
earlier position; (2) the party must have succeeded in persuading a court
to accept the party’s earlier position; . . . absent success in a prior
proceeding, a party’s later inconsistent position introduces no risk of

12
 inconsistent court determinations, and thus poses little threat to judicial
integrity; and (3) whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped.

(Punctuation omitted.) IBF Participating Income Fund v. Dillard-Winecoff, LLC, 275

Ga. 765, 766-67 (573 SE2d 58) (2002).

Applying this authority, we find that the trial court abused its discretion in

applying judicial estoppel to bar Sure’s rebate claim because the Second Bankruptcy

Action was dismissed without a discharge. Our Supreme Court has held that no

benefit or unfair advantage arises from a bankruptcy debtor’s failure to list a claim

when the bankruptcy action ultimately is dismissed prior to a discharge in bankruptcy.

Dillard-Winecoff, 275 Ga. at 766. See also Klardie v. Klardie, 287 Ga. 499, 502 (2)

(697 SE2d 207) (2010) (appellate courts review trial court’s application of judicial

estoppel for an abuse of discretion). As the Court explained, “[t]o hold otherwise

would give a windfall to the defendant in [a] state court contract/tort action by

dismissing that action without a determination of its merits[.]” Dillard-Winecoff, 275

Ga. at 767. Moreover, as in Dillard-Winecoff, the defendant in this case apparently

has been paid in full. Premier has foreclosed on the Loan collateral and further

withheld credit card receipts to net against Sure’s gas purchases, and there is no

13
evidence or assertion that it has not been repaid for what Sure owed. Therefore, we

find that “the balance of equities is tipped in favor of permitting” Sure to pursue its

rebate claim against Premier. Id.

(c) We also agree with Sure’s argument that the trial court erred in finding that

Sure’s claim for the credit card receipts was barred by collateral estoppel.

“The doctrine of collateral estoppel, also known as issue preclusion, prevents

the re-litigation of an issue actually litigated and adjudicated on the merits between

the same parties or their privies.” (Citation and punctuation omitted.) York v. RES-GA

LJY, LLC, 300 Ga. 869, 877 (3) (799 SE2d 235) (2017). Although the bankruptcy

court declined to compel Premier to turn over the credit card receipts in response to

Sure’s motion for such relief, that ruling was not an adjudication of the merits of the

claim. Rather, the bankruptcy court determined that Sure was required to pursue that

claim in an adversary proceeding, and, indeed, Rule 7001 (1) of the Federal Rules of

Bankruptcy Procedure provides that an adversary proceeding includes “a proceeding

to recover money or property[.]” Therefore, the bankruptcy court’s order reflects only

the court’s determination that the issue of the credit card receipts could not be

resolved by motion but instead required a separate adversary proceeding. Dzikowski

v. Boomer’s Sport’s & Recreation Ctr., Inc. (In re Boca Arena, Inc.), 184 F3d 1285,

14
1286 (11th Cir. 1999) (“In bankruptcy, adversary proceedings generally are viewed

as ‘stand-alone lawsuits[.]’”). See also Anthony v. Ocwen Loan Servicing, LLC (In re

Anthony), 550 BR 577, 580 (M.D. Fla. 2016) (The bankruptcy rules give “an

adversary proceeding all the trappings of traditional civil litigation.”) (citation and

punctuation omitted).

Nothing in the record before us indicates that an adversary proceeding was ever

initiated, much less completed, in conjunction with the Second Bankruptcy Action,

and the record contains no other evidence showing that Sure’s claim for credit card

receipts has ever been adjudicated on the merits. Therefore, the doctrine of collateral

estoppel does not apply to bar Sure from pursuing that claim in this litigation.

2. Wrongful foreclosure – Sure asserts that the trial court erred in granting the

motion for summary judgment as to its wrongful foreclosure claim because genuine

issues of material fact exist on the issue of whether Premier paid a grossly inadequate

price for the Adjacent Property at the Foreclosure sale. The trial court granted

summary judgment on Sure’s claim for wrongful foreclosure on a number of grounds,

including that Sure failed to tender the amount due as required to obtain equitable

relief on its claim for wrongful foreclosure.

15
 Under Georgia law, “[h]e who would have equity must do equity and must give

effect to all equitable rights of the other party respecting the subject matter of the

action.” OCGA § 23-1-10. And “[u]nder application of this maxim [to a wrongful

foreclosure action], before the complainant would be entitled to equitable relief, she

must do equity and tender the amount due under the security deed and note.” Berry

v. Govt. Nat. Mtg. Assn., 231 Ga. 503, 503 (202 SE2d 450) (1973). Generally, where

a plaintiff fails to make such tender, it is not entitled to set aside the foreclosure sale.

See Smith v. Citizens & Southern Financial Corp., 245 Ga. 850, 852 (1) (268 SE2d

157) (1980); Stewart v. Suntrust Mtge, Inc., 331 Ga. App. 635, 640-41 (770 SE2d

892) (2015). Here, it is undisputed that Sure accepted and failed to repay at least

$6,000 of the Loan proceeds, yet it failed to tender any amount in connection with its

claim of wrongful foreclosure. Therefore, Sure is not entitled to the equitable relief

it seeks to set aside the Foreclosure sale.

Nevertheless, Sure argues on appeal that it should be exempted from the tender

requirement because Premier’s improper conduct in withholding Sure’s credit card

receipts, inter alia, caused Sure’s default on the Loan resulting in the Foreclosure,

citing Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community Trust,

298 Ga. 221, 236 (4) (a) (780 SE2d 311) (2015) (“[T]ender is not an absolute rule,

16
especially where it is alleged that the foreclosing party procured the sale of the

property through its own improper conduct[.]”) (citation omitted). However, Sure did

not raise this argument in the trial court below , and “[i]t is well settled that appellate

courts will not consider new arguments in opposition to a motion for summary

judgment raised for the first time on appeal.” (Citations and punctuation omitted.)

Humphrey v. JP Morgan Chase Bank, N.A., 337 Ga. App. 331, 333 (1) (a) (787 SE2d

303) (2016) (declining to consider new argument on wrongful foreclosure claim).

Each party has a duty to present his best case on a motion for summary
judgment. [Our Supreme] Court has specifically held that, in responding
to a motion for summary judgment, plaintiffs have a statutory duty “to
produce whatever viable theory of recovery they might have or run the
risk of an adjudication on the merits of their case.”

(Citation omitted.) Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828 (2) (573 SE2d

389) (2002).

Accordingly, we find the trial court properly granted summary judgment on

Sure’s wrongful foreclosure claim on the ground that Sure failed to tender the

amounts it owed under the terms of the Note and the Deed to Secure Debt. Therefore,

we need not address the parties’ arguments regarding the other grounds cited by the

trial court in support of this ruling.

17
 3. Fraud – Sure also asserts that the trial court erred in granting summary

judgment on its fraud claim. Although Sure raises a number of arguments on appeal

in support of this assertion, the only argument it raised below was its contention that

at the time Premier made the Loan, it had no present intent to furnish Sure the full

$56,000 to make renovations to the Station. Rather, its intent was to force Sure into

default in order to obtain the Adjacent Property through foreclosure. Accordingly,

this is the only argument we may consider on appeal. Pfeiffer, 275 Ga. at 828 (2).

In order to establish a claim for fraud, Sure must prove:

a false representation by a defendant, scienter, intention to induce the
plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and
damage to plaintiff. For an action for fraud to survive a motion for
summary judgment, there must be some evidence from which a jury
could find each element of the tort.

(Citation omitted.) Roberts v. Nessim, 297 Ga. App. 278, 284 (1) (676 SE2d 734)

(2009). “Fraud may be proved by slight circumstances, and whether a

misrepresentation is fraudulent and intended to deceive is generally a jury question.”

(Citations and punctuation omitted.) JTH Tax, Inc. v. Flowers, 302 Ga. App. 719, 726

(2) (691 SE2d 637) (2010). Nevertheless, a claim of fraud generally “cannot be

predicated on a promise contained in a contract because fraud generally cannot be

18
predicated on statements that are in the nature of promises as to future events, and to

hold otherwise, any breach of a contract would amount to fraud.” Id. at 725 (2).

“However, an exception to this rule exists where a promise as to future events is made

with a present intent not to perform or where the promisor knows that the future event

will not take place.” Id. “Fraudulent intent at the time of contracting can be inferred

based on subsequent conduct of the defendant that is unusual, suspicious, or

inconsistent with what would be expected from a contracting party who had been

acting in good faith. [Cits.]” BTL COM Ltd. v. Vachon, 278 Ga. App. 256, 261 (1)

(628 SE2d 690) (2006).

Sure asserts that Premier signed the Loan documents with no present intent to

actually loan it the $56,000 referenced in the promissory note as part of its plan to

induce Sure to put up as collateral the Adjacent Property, which Nwokolo asserts is

worth far more than $56,000. Nwokolo testified in his deposition that the fair market

value of the Adjacent Property was $1.5 million based on recent sales of similarly

undeveloped properties in the area.3 Sure contended that Premier worked to insure its

3
Under Georgia law, “[a] witness need not be an expert or dealer in an article
or property to testify as to its value if he or she has had an opportunity to form a
reasoned opinion.” OCGA § 24-7-701 (b). This provision “crystallizes principles of
prior Georgia law relating to value of property.” Ronald L. Carlson & Michael Scott
Carlson, Carlson on Evidence 369 (5th ed. 2016). Under prior law, an owner of

19
default on the Loan by failing to give it the full Loan proceeds and instead forwarding

$14,000 to B&B without its consent. Nwokolo testified that he never signed the

Authorization for this payment and that, in fact, his signature on that document is

forged. Sure argues that these post-contract actions would allow a jury to infer that

Premier had fraudulent intent at the time the Loan documents were signed.

We find that this evidence is sufficient to create genuine issues of material fact

on its fraud claim, including whether Premier ever intended to loan Sure the amount

agreed, whether Nwokolo authorized the payment of money to B&B, and whether it

forged his signature on the Authorization. Accordingly, the trial court erred in

granting Premier’s motion for summary judgment as to this allegation of fraud. See

generally Vachon, 278 Ga. App. at 261 (1); Ades v. Werther, 256 Ga. App. 8, 11 (2)

property must give the facts upon which he bases his opinion of value, and “[a]
showing that the witness had some knowledge, experience, or familiarity as to the
value of the item is the requisite foundation.” Dickens v. Calhoun First Nat. Bank,
214 Ga. App. 490, 491 (2) (448 SE2d 237) (1994). A determination of whether the
proper foundation has been laid is within the trial court’s discretion. Dept. of Transp.
v. Into, 219 Ga. App. 311, 311 (1) (464 SE2d 886) (1995). Because the trial court in
this case has not ruled that Nwokolo’s valuation testimony is incompetent, we will
consider it for purposes of summary judgment. Dalton v. City of Marietta, 280 Ga.
App. 202, 204 (1) (633 SE2d 552) (2006) (On summary judgment, a court “may
consider any material which would be admissible or usable at trial.”) (citation and
punctuation omitted; emphasis in original).

20
(a) (567 SE2d 340) (2002). However, to the extent that Sure raises arguments

regarding other alleged misrepresentations and fraudulent actions on appeal, we must

affirm the trial court’s grant of summary judgment as to any such claims because Sure

failed to raise these arguments below. Pfeiffer, 275 Ga. at 828 (2).

Judgment affirmed in part and reversed in part. Barnes, P. J., and Mercier, J.,

concur.

21