The State of Georgia appeals1 from an order of the Superior Court of Fulton County that granted the defendants’ demurrers to an indictment which charged them with residential mortgage fraud, felony theft by deception, or both. On appeal, the State contends that the trial court erred in quashing the indictment, arguing that certain allegations were mere surplusage and did not invalidate the indictment, that the indictment was not duplicitous, and that the indictment was sufficient to withstand general and special demurrers. The State also contends that the trial court erred in granting the defendants’ “speaking demurrers.” For the following reasons, we reverse the trial court’s order. The record in this case shows that the State charged the defendants with ten counts of residential mortgage fraud, OCGA § 16-8-102,2 and three counts of felony theft by deception, OCGA § 16-8-3.3 According to the State, all of the charges arose from a series of allegedly fraudulent real estate sales, in which a seller Antinino Corhen obtained inflated appraisals by Joshua Davis, Sylas Dewitt and Ronald Lovvorn for four residential properties in the Atlanta area. The seller, assisted by a real estate broker Jephthah Jenkins or real estate agents Alisha Dorsey and Lashane Taylor, found buyers for the properties and then, acting in concert, they allegedly falsified the buyers’ mortgage applications by inflating the buyers’ income so that the buyers could obtain mortgages. The State contends that none of the properties were actually worth the price the buyers paid for them. After the closings, the seller allegedly paid the broker or agents substantial amounts of money from the sale proceeds without disclosing the payments in the closing documents. The buyers ultimately defaulted on the loans, and the lenders foreclosed upon the properties.4
Before trial, the defendants filed general and special demurrers to the indictment, and the trial court conducted a hearing on the demurrers on February 5, 2010. During the hearing, the court expressed concern about the language of the indictment, stating that some of the counts “don’t make any sense and they don’t put anybody on notice about what they did wrong or should have known was wrong.” The court ultimately concluded that the indictment was “a mess” and summarily quashed the indictment in its entirety. The court did not articulate the legal basis for its ruling or indicate whether it granted the defendants’ general or special demurrers. Consequently, on appeal, we must evaluate whether the indictment is sufficient to withstand both a general and special demurrer.
