merger clause in Georgia

2026“Even when no party raises a merger error, if we note such an error, we have the discretion to correct it on direct appeal.” Dixon v. State, 302 Ga. 691, 696 (2017).

2026See Dixon v. State, 302 Ga. 691, 697 (2017) (“For this reason, an exercise of our discretion on direct appeal to correct a merger error that harms a defendant (but of which he has not complained) may avoid unnecessary habeas proceedings and thereby promotes judicial economy.”).

2023See Dixon v. State, 302 Ga. 691, 696-697 (4) ( 808 SE2d 696 ) (2017) (even when no party raises a merger error, an appellate court has the discretion to correct it on direct appeal “because [it] results in an illegal and void judgment of conviction and sentence”); Nazario v. State, 293 Ga. 480, 486-487 (2) (b) ( 746 SE2d 109 ) (2013).

2023See Dixon v. State, 302 Ga. 691, 696-697 (4) ( 808 SE2d 696 ) (2017) (even when no party raises a merger error, an appellate court has the discretion to correct it on direct appeal “because [it] results in an illegal and void judgment of conviction and sentence”); Nazario v. State, 293 Ga. 480, 486-487 (2) (b) ( 746 SE2d 109 ) (2013).

2025See Williams v. State, 287 Ga. 192, 193 ( 695 SE2d 244 ) (2010) (explaining that a merger claim “is a specific attack on the conviction”).

2025See Williams v. State, 287 Ga. 192, 193 ( 695 SE2d 244 ) (2010) (explaining that a merger claim “is a specific attack on the conviction”).

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2023See also Scott, 306 Ga. at 509 (“Merger analysis often involves counts charging two different crimes.

2025“When a defendant enumerates a merger error after being convicted of multiple counts of the same crime, the correct merger analysis requires courts to ask whether those crimes arose from a single course of conduct and, if so, whether the defendant can face multiple convictions and sentences under a unit-of-prosecution analysis.” (Citations, punctuation, and emphasis omitted.) Johnson v. State, 313 Ga. 155, 159 (4) ( 868 SE2d 226 ) (2022).

2025“When a defendant enumerates a merger error after being convicted of multiple counts of the same crime, the correct merger analysis requires courts to ask whether those crimes arose from a single course of conduct and, if so, whether the defendant can face multiple convictions and sentences under a unit-of-prosecution analysis.” (Citations, punctuation, and emphasis omitted.) Johnson v. State, 313 Ga. 155, 159 (4) ( 868 SE2d 226 ) (2022).

2022Further, where there is ambiguity, the agreement will be construed against the drafter and in favor of the non-drafter.14 The Client’s argument is based upon the merger rule. “[T]he rational basis for merger clauses is that where parties enter into a final contract[,] all prior negotiations, understandings, and agreements on the same subject are merged into the final contract, and are accordingly extinguished.”15 “In order for the merger rule to apply, however, the parties of the merging contracts must be the same and the terms of those contracts must completely cover the same subject matter a

2022Further, where there is ambiguity, the agreement will be construed against the drafter and in favor of the non-drafter.14 The Client’s argument is based upon the merger rule. “[T]he rational basis for merger clauses is that where parties enter into a final contract[,] all prior negotiations, understandings, and agreements on the same subject are merged into the final contract, and are accordingly extinguished.”15 “In order for the merger rule to apply, however, the parties of the merging contracts must be the same and the terms of those contracts must completely cover the same subject matter a

2014In City Dodge v. Gardner, 232 Ga. 766 ( 208 SE2d 794 ) (1974), the Supreme Court of Georgia addressed whether a merger clause in a sales contract prevented a buyer from prevailing on his fraudulent inducement claim when the contract had been rescinded.

2014In City Dodge v. Gardner, 232 Ga. 766 ( 208 SE2d 794 ) (1974), the Supreme Court of Georgia addressed whether a merger clause in a sales contract prevented a buyer from prevailing on his fraudulent inducement claim when the contract had been rescinded.

2021See Hulett v. State, 296 Ga. 49, 54 (2) ( 766 SE2d 1 ) (2014) (noting, however, that the appellate courts have no duty to scour the record for such errors); cf. Dixon v. State, 302 Ga. 691, 697 (4) ( 808 SE2d 696 ) (2017) (holding, in the context of an illegal sentence imposed because of a merger error, that “an exercise of our discretion on direct appeal to correct [the] merger error that harms a entered during the September 2018 term of court. 3 defendant (but of which he has not complained) may avoid unnecessary habeas proceedings and thereby promotes judicial economy.”). 2.

2021See Hulett v. State, 296 Ga. 49, 54 (2) ( 766 SE2d 1 ) (2014) (noting, however, that the appellate courts have no duty to scour the record for such errors); cf. Dixon v. State, 302 Ga. 691, 697 (4) ( 808 SE2d 696 ) (2017) (holding, in the context of an illegal sentence imposed because of a merger error, that “an exercise of our discretion on direct appeal to correct [the] merger error that harms a entered during the September 2018 term of court. 3 defendant (but of which he has not complained) may avoid unnecessary habeas proceedings and thereby promotes judicial economy.”). 2.

2024See also Eleby v. State, 319 Ga. 234, 248 (7) (__ SE2d __) (2024) (holding that aggravated assault did not merge with armed robbery because they were two separate acts, i.e., the aggravated assault was completed before the armed robbery). 22 See generally Jackson v. State, 318 Ga. 393, 411 (5) ( 897 SE2d 785 ) (2024) (“One crime is completed before the other where the crimes were separated by a ‘deliberate interval.’”); McKenzie v. State, 302 Ga. App. 538, 539 (1) (a) ( 691 SE2d 352 ) (2010) (“[I]f the underlying facts show that one crime was completed prior to the 10 event of Kelley’s abandon

2024See also Eleby v. State, 319 Ga. 234, 248 (7) (__ SE2d __) (2024) (holding that aggravated assault did not merge with armed robbery because they were two separate acts, i.e., the aggravated assault was completed before the armed robbery). 22 See generally Jackson v. State, 318 Ga. 393, 411 (5) ( 897 SE2d 785 ) (2024) (“One crime is completed before the other where the crimes were separated by a ‘deliberate interval.’”); McKenzie v. State, 302 Ga. App. 538, 539 (1) (a) ( 691 SE2d 352 ) (2010) (“[I]f the underlying facts show that one crime was completed prior to the 10 event of Kelley’s abandon

2022“Although we decline to exercise our discretion under these circumstances to correct the merger error, nothing in this opinion should be read to preclude the trial court from doing so upon return of the remittitur.” Marshall v. State, 309 Ga. 698, 701 (2) (848 SE2d 389) (2020).

2022“Although we decline to exercise our discretion under these circumstances to correct the merger error, nothing in this opinion should be read to preclude the trial court from doing so upon return of the remittitur.” Marshall v. State, 309 Ga. 698, 701 (2) (848 SE2d 389) (2020).

2024See Villalobos, 355 Ga. App. at 346 (1) (buyer of used truck could not justifiably rely on oral representations that truck was “in good condition” and had “no problems” in light of comprehensive merger and disclaimer clauses); Novare Group, 290 Ga. at 190 (3) (buyers could not justifiably rely on seller’s promise of “spectacular city views” where the contract’s merger clause precluded reliance on oral representations); Legacy Academy, 297 Ga. at 18-19 (1)-(2) (plaintiff could not justifiably rely on defendant’s representations regarding the historical earnings of the franchise where the contra

2014Therefore, in the instant case, because the evidence supported the jury’s verdict in favor of Mamilove on the rescission claim, as explained in Division 4, supra, the entire agreement – including the merger clause – was no longer valid or enforceable against Mamilove and did not prevent the Reymonds from proving that they 20 See Novare Group v. Sarif, 290 Ga. at 190 (3) (The question of whether a party justifiably relied on a seller’s antecedent misrepresentation “may be a jury question in a fraud case where no contract exists or where the contract has become void[.]” However, it is a question

2012“The rational basis for the merger rule is that[,] where parties enter into a final contract!,] all prior negotiations, understandings, and agreements on the same subject’ are merged into the final contract, and are accordingly extinguished.” (Citation and emphasis omitted.) Holmes v. Worthey, 159 Ga. App. 262, 267 ( 282 SE2d 919 ) (1981), aff’d, Worthey v. Holmes, 249 Ga. 104 ( 287 SE2d 9 ) (1982).

2012“The rational basis for the merger rule is that[,] where parties enter into a final contract!,] all prior negotiations, understandings, and agreements on the same subject’ are merged into the final contract, and are accordingly extinguished.” (Citation and emphasis omitted.) Holmes v. Worthey, 159 Ga. App. 262, 267 ( 282 SE2d 919 ) (1981), aff’d, Worthey v. Holmes, 249 Ga. 104 ( 287 SE2d 9 ) (1982).

1991The written contract contains a merger clause which provides “in essence that no representation, promise or inducement not included in the contract shall bind any party. [Cit.]” Carpenter v. Curtis, 196 Ga. App. 234, 236 ( 395 SE2d 653 ) (1990).

1991The written contract contains a merger clause which provides “in essence that no representation, promise or inducement not included in the contract shall bind any party. [Cit.]” Carpenter v. Curtis, 196 Ga. App. 234, 236 ( 395 SE2d 653 ) (1990).

2026See Jackson v. Crickmar, 311 Ga. 870, 873 (2) ( 860 SE2d 709 ) (2021) (“merger claims are 1 Contrary to his contention, Cisneros has no conviction for aggravated battery. a species of [a] void-conviction claim”) (citation and punctuation omitted).

2025And while a merger claim must come before the trial court in a type of proceeding in which a void conviction may be challenged, Jackson, 311 Ga. at 873 (2), a motion for new trial is 31 such a proceeding.

2026“Thus, terms of those contracts must completely cover the same subject matter and be inconsistent.” Id.; see also Atlanta Integrity Mtg. v. Ben Hill United Methodist Church, 286 Ga. App. 795, 797 ( 650 SE2d 359 ) (2007) (“Under the merger rule, an existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject-matter embraced by the original contract.”) (citation modified).

2026“Thus, terms of those contracts must completely cover the same subject matter and be inconsistent.” Id.; see also Atlanta Integrity Mtg. v. Ben Hill United Methodist Church, 286 Ga. App. 795, 797 ( 650 SE2d 359 ) (2007) (“Under the merger rule, an existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject-matter embraced by the original contract.”) (citation modified).

2023See, e.g., Jones v. State, 290 Ga. 670, 672 (2) (725 SE2d 236) (2012) (providing that the merger doctrine under OCGA § 16-1-7 (a) “does not apply if each of the charged crimes was committed against a different victim” (citation and punctuation omitted)); Culpepper v. State, 289 Ga. 736, 738-739 (2) (a) (715 SE2d 155) (2011) (concluding that aggravated assault based on multiple stab wounds merged with malice murder under OCGA § 16-1-7 (a) because there was no evidence that non-fatal stab wounds were separated by a deliberate interval from fatal stab wounds).

2023See, e.g., Jones v. State, 290 Ga. 670, 672 (2) (725 SE2d 236) (2012) (providing that the merger doctrine under OCGA § 16-1-7 (a) “does not apply if each of the charged crimes was committed against a different victim” (citation and punctuation omitted)); Culpepper v. State, 289 Ga. 736, 738-739 (2) (a) (715 SE2d 155) (2011) (concluding that aggravated assault based on multiple stab wounds merged with malice murder under OCGA § 16-1-7 (a) because there was no evidence that non-fatal stab wounds were separated by a deliberate interval from fatal stab wounds).

2012The trial court correctly determined that the sale contract’s merger clause precluded the Reiningers’ claim that the O’Neills committed fraudulent 9 (Citations and punctuation omitted.) Browning v. Stocks, 265 Ga. App. 803, 805-806 (2) ( 595 SE2d 642 ) (2004). 9 misrepresentation concerning the water leakage into the basement.

2012The trial court correctly determined that the sale contract’s merger clause precluded the Reiningers’ claim that the O’Neills committed fraudulent 9 (Citations and punctuation omitted.) Browning v. Stocks, 265 Ga. App. 803, 805-806 (2) ( 595 SE2d 642 ) (2004). 9 misrepresentation concerning the water leakage into the basement.

1997If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery. [Cit.] If, on the other hand, he does rescind the contract, the merger clause will not prevent his recovery under a tort theory." Id. at 886 , 354 S.E.2d 210 .

1997If the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery. [Cit.] If, on the other hand, he does rescind the contract, the merger clause will not prevent his recovery under a tort theory." Id. at 886 , 354 S.E.2d 210 .

2020The Supreme Court first concluded that the contract’s purported merger clause only covered oral representations, not written representations such as the written report, and so it was “not a case in which reliance on all precontractual representations was rendered unreasonable as a matter of law by a comprehensive merger clause.” Id. at 158 .

2016See Raysoni, supra, 296 Ga. at 159 (plaintiff alleged he relied on Carfax report provided by dealer).

2001The remedy granted for breach may be limited as justice requires.” 5 Ambrose v. Sheppard, supra, 241 Ga. App. at 836 . 6 See, e.g., Estate of Farkas v. Clark, 238 Ga. App. 115, 118 (1) ( 517 SE2d 826 ) (1999) (a merger clause “estop [s] a party bound by the terms of the contract from arguing that he or she relied on representations other than those contained in the contract”). 7 The only instance in which Sun-Pacific asserted that the promises did not survive the closing was in colloquy with the court during the cross-examination of Girardot, who was the first of three witnesses. 8 See Lowry v

2001The remedy granted for breach may be limited as justice requires.” 5 Ambrose v. Sheppard, supra, 241 Ga. App. at 836 . 6 See, e.g., Estate of Farkas v. Clark, 238 Ga. App. 115, 118 (1) ( 517 SE2d 826 ) (1999) (a merger clause “estop [s] a party bound by the terms of the contract from arguing that he or she relied on representations other than those contained in the contract”). 7 The only instance in which Sun-Pacific asserted that the promises did not survive the closing was in colloquy with the court during the cross-examination of Girardot, who was the first of three witnesses. 8 See Lowry v

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2024See Dixon v. State, 302 Ga. 691, 696-698 (4) (808 SE2d 696) (2017) (“[W]hen a merger error 46 The test established in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), is the proper standard for evaluating the sufficiency of the evidence as a matter of constitutional due process.

2024See Dixon v. State, 302 Ga. 691, 696-698 (4) (808 SE2d 696) (2017) (“[W]hen a merger error 46 The test established in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), is the proper standard for evaluating the sufficiency of the evidence as a matter of constitutional due process.

2022Where, as here, a defendant is charged with multiple counts of the same crime, “the merger analysis requires careful interpretation of the criminal statute at issue to identify the ‘unit of prosecution’ — ‘the precise act or conduct’ that the legislature criminalized.” Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019) (citation and punctuation omitted); see Coates v. State, 304 Ga. 329, 330 ( 818 SE2d 622 ) (2018) (“whether a single course of conduct can result in multiple convictions and sentences under the same statute” implicates the doctrine of substantive double jeopardy, “and

2022Where, as here, a defendant is charged with multiple counts of the same crime, “the merger analysis requires careful interpretation of the criminal statute at issue to identify the ‘unit of prosecution’ — ‘the precise act or conduct’ that the legislature criminalized.” Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019) (citation and punctuation omitted); see Coates v. State, 304 Ga. 329, 330 ( 818 SE2d 622 ) (2018) (“whether a single course of conduct can result in multiple convictions and sentences under the same statute” implicates the doctrine of substantive double jeopardy, “and

2022Compare Wallace, 279 Ga. at 745-746 (1) (holding that a purchase agreement and subsequent escrow agreement did not merge because the purchase agreement included an obligation that the escrow agreement did not; the escrow agreement did not, however, contain a merger clause); Atlanta Integrity Mtg., 286 Ga. App. at 799 (“Because the contracts at issue did not involve the same parties or subject matter, and because the merger clause by its express terms did not supersede any prior agreements or contracts between [the parties], the trial court erred [by] holding that the [contracts] merged. . . .”

2018Thus, "the terms of those contracts must completely cover the same subject matter and be inconsistent." Wallace v. Bock , 279 Ga. 744 , 745-746 (1), 620 S.E.2d 820 (2005) ("where the parties execute two successive agreements embodying completed negotiations 'on the same subject,' the doctrine of merger applies, and the second agreement supersedes the first.").

2016See, however, Nazario, supra at 488 (2) (d) (explaining that “a merger claim cannot be considered in a free-standing ‘motion to vacate a sentence and/or vacate a conviction as void or pleadings of a similar nature’ rather, “a merger claim must come before the court in a type of proceeding in which criminal convictions may be challenged”) (citation omitted); Williams v. State, 287 Ga. 192, 194 ( 695 SE2d 244 ) (2010) (concluding that “[appellant’s] claim of failure to merge ... is a challenge to his criminal conviction and a motion to correct illegal sentence or conviction is not an appropriate

2016See, however, Nazario, supra at 488 (2) (d) (explaining that “a merger claim cannot be considered in a free-standing ‘motion to vacate a sentence and/or vacate a conviction as void or pleadings of a similar nature’ rather, “a merger claim must come before the court in a type of proceeding in which criminal convictions may be challenged”) (citation omitted); Williams v. State, 287 Ga. 192, 194 ( 695 SE2d 244 ) (2010) (concluding that “[appellant’s] claim of failure to merge ... is a challenge to his criminal conviction and a motion to correct illegal sentence or conviction is not an appropriate

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2025By contrast, a required evidence analysis, which considers whether each crime requires proof of a fact which the other does not, applies to a merger analysis [if] the same act or transaction constitutes a violation of two distinct statutory provisions.4 Because Spencer’s convictions are based on two distinct statutory provisions — pandering (OCGA § 16-6-12) and pimping (OCGA § 16-6-11 (3)) — we apply the 4 (Citations and punctuation omitted.) State v. Shopshire, 318 Ga. 14, 15-16 (2) ( 896 SE2d 541 ) (2023), quoting Scott v. State, 306 Ga. 507, 509 (2) ( 832 SE2d 426 ) (2019); Drinkard v. Walk

2020Although it appears that the trial court should have separately sentenced Watts for possession of a firearm by a first offender probationer, see Linson v. State, 287 Ga. 881, 885-886 (4) ( 700 SE2d 394 ) (2010), “when a merger error benefits a defendant and the State fails to raise it by cross-appeal,” Dixon v. State, 302 Ga. 691, 698 (4) ( 808 SE2d 696 ) (2017), we generally do not correct the error, and we decline to do so here.

2020Although it appears that the trial court should have separately sentenced Watts for possession of a firearm by a first offender probationer, see Linson v. State, 287 Ga. 881, 885-886 (4) ( 700 SE2d 394 ) (2010), “when a merger error benefits a defendant and the State fails to raise it by cross-appeal,” Dixon v. State, 302 Ga. 691, 698 (4) ( 808 SE2d 696 ) (2017), we generally do not correct the error, and we decline to do so here.