Dillard, Presiding Judge. Following a grant of summary judgment in favor of Frank J. Davis, as executor of the Estate of Randall L. Hattaway, Benevolent Lodge No. 3 appeals.[1] In doing so, the Lodge claims the trial court erred because (1) contrary to the court’s conclusion, the statute of limitation has not run; (2) there was evidence of a conspiracy between Hattaway and the Lodge’s treasurer; and (3) officers of the Lodge exercised due diligence in attempting to discover its treasurer’s theft of funds. For the reasons set forth infra, we affirm. Viewed in the light most favorable to the Lodge (i.e., the nonmovant),[2] the record shows it is a 501 (c) (3) Masonic fraternal organization. And in addition to having various membership positions, including officers (the most senior of which is referred to as the “Worshipful Master”), the Lodge has a separate board of trustees which owns its building but no other assets. Members of the board of trustees are all past Worshipful Masters with an understanding of how the Lodge operates. At one point, Hattaway was a trustee and served as the board’s chairman, but by the time of the events in question, he no longer regularly attended Lodge meetings. Hattaway also operated an accounting firm and completed tax returns for the Lodge. As for the annually elected positions, officers received no official training upon assuming their positions, nor were there any policies, procedures, or handbooks given to them. Instead, as members progressed through positions, they learned their duties by observing others while attending meetings or through “on the job” training. Nevertheless, there were bylaws and rules kept at the Lodge building and made available for members to read. And upon election, a new Worshipful Master accompanied the acting treasurer to the bank to review the Lodge’s investments and holdings. During the relevant years, Dwight Riddle served as the elected treasurer of the Lodge; and in that capacity, he periodically provided financial reports to the group as a whole—including an annual report—through oral presentations. Riddle had a reputation within the Lodge as a penny pincher, which contributed to the unequivocal trust others placed in his abilities as treasurer. As a result, neither the Worshipful Masters nor the other officers were apparently troubled by Riddle’s practice of not providing them with copies of the Lodge’s tax returns for their review. Instead, they all “just assumed that everything was right.” Additionally, bank statements for the Lodge were sent directly to Riddle’s home and were not reviewed by the Worshipful Masters or other officers. Indeed, because Riddle was so trusted, no procedures were in place to double check his work. But eventually, someone began to ask questions about the Lodge’s finances. Kelly Montgomery—who was working in law enforcement at the time—ascended through the leadership ranks of the Lodge to Worshipful Master. While doing so, he became dissatisfied with the information Riddle provided in his financial “reports” to the Lodge because they never included written documentation or exact numbers. Instead, Riddle orally reported that the Lodge had “a little bit of money over here” and “a little bit of money over there,” and he repeated the same information every year. This murky and vague practice of financial reporting deeply troubled Montgomery. And as a result of his growing concerns, in 2017, he requested that Riddle submit a written annual report; but Riddle continuously delayed its production. Montgomery then reached out to Hattaway and asked to see the Lodge’s tax returns up to the point before Riddle’s tenure as treasurer. Montgomery suspected the Lodge was missing money based upon the prior Worshipful Master’s opinion that the finances “[didn't] quite look right.” Several months after this request, Hattaway called Montgomery to his office, and Montgomery brought along the person next in line to become Worshipful Master. According to Montgomery, at that meeting, Hattaway gave him a single piece of paper entitled Accounts Receivable, which listed a number of loans made by the Lodge to different member. Most notably, this document included an “astronomical number”—i.e., “hundreds and hundreds and hundreds of thousands of dollars”—loaned to Riddle. And upon sliding this sheet across the table, Hattaway—who informed the duo that he was planning to retire from accounting—said “I’m done,” wiped his hands, and said “I can’t do it anymore, I’m finished.” Hattaway then handed Montgomery a stack of what Montgomery described as “IOUs” from Riddle to the Lodge, and Hattaway explained that every year when taxes came due, Riddle provided him with such documents and that it had “just gotten out of hand.” Hattaway also later gave Montgomery copies of the Lodge’s tax returns. After learning of these financial improprieties, Montgomery called a meeting with the other Lodge officers. And during that meeting, the officers learned of the multi-year series of high-dollar “loans” purportedly made by the Lodge to Riddle, totaling more than $700,000. Although members were permitted to borrow money from the Lodge, it was not a common practice to do so; and the decision of whether to make a loan to a member had to be voted upon by the entire Lodge as a matter of protocol under the bylaws and memorialized in meeting minutes.[3] And importantly, no loans were ever approved by the Lodge to Riddle. So, upon making this discovery, the officers decided to involve law enforcement (the local sheriff was a member of the Lodge), and were told to take control of any Lodge financial materials in Riddle’s possession. They did, and after providing the requested materials, Riddle walked out to his vehicle, retrieved a gun, and committed suicide in the parking lot. During the GBI investigation that followed, a previously unknown investment account was discovered, and it was from that account Riddle had taken the money for his “loans.”[4] Thereafter, the Lodge entered into a settlement agreement with Riddle’s estate. On July 3, 2019, the Lodge filed suit against the then deceased Hattaway’s estate, alleging Hattaway was negligent in failing to inform the Lodge of the apparent theft of funds by Riddle and that he fraudulently concealed the negligence. Additionally, the Lodge made a claim for 158 “separate violations” of the Georgia civil Racketeer Influenced and Corrupt Organizations Act[5] based upon allegations that Hattaway aided and abetted Riddle in 148 of the 158 instances of stealing Lodge funds. The Lodge later amended its complaint to remove the allegations of negligence and fraud but maintained its assertion that Hattaway aided and abetted Riddle in violating the civil RICO statute in 148 instances. The Estate proceeded to file a motion for summary judgment, arguing that (1) the statute of limitation as to the civil RICO claims expired so as to bar the Lodge’s action; (2) rather than over 100 separate violations of the RICO statute, one continuous act damaged the Lodge; (3) the Lodge could have discovered the harm through exercising due diligence; and (4) there was no showing Hattaway committed two predicate acts under the RICO statute. Following a hearing on the motion, the trial court granted the Estate’s motion for summary judgment, concluding there was no evidence to support the assertion that Hattaway entered into a conspiracy with Riddle from 2011 to 2017. Furthermore, the court concluded the Lodge’s claims were barred by the five-year statute of limitation in OCGA § 16-14-18 and that a 2015 amendment to that statute did not restart the statute of limitation for the Lodge’s action. This appeal by the Lodge follows. Summary judgment is appropriate when “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.”[6] And a defendant may prevail on such a motion by showing the court that “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.”[7] Importantly, a defendant “who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.”[8] Then, if the moving party discharges this burden, the nonmoving party “cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.”[9] With these guiding principles in mind, we turn now to the Lodge’s specific enumerations of error. 1. For starters, the Lodge contends the trial court erred in granting summary judgment in the Estate’s favor when there were genuine issues of material fact as to whether Hattaway entered into a conspiracy with Riddle. More specifically, the Lodge argues that there remains a genuine issue of material fact as to whether Hattaway was “associated with or participated in Riddle’s enterprise through a pattern of racketeering activity or whether he conspired with Riddle and committed an overt act to effect the object of the conspiracy” in violation of OCGA § 16-14-4 (b) or (c). We disagree. To establish a valid civil RICO claim, a plaintiff must “show that the defendant violated or conspired to violate Georgia’s RICO Act and that the RICO violation proximately caused injury to the plaintiff.”[10] Under OCGA § 16-14-4 (b), it is “unlawful for any person employed by or associated with any enterprise[[11]] to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity[[12]].” Importantly, a plaintiff demonstrates racketeering activity by “showing that the defendant committed predicate offenses at least twice.”[13] And under OCGA § 16-14-4 (c), it is “unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section.” Violations of section (c) occur when a person, “together with one or more persons conspires to violate any of the provisions of subsection (a) or (b) of this Code section and any one or more of such persons commits any overt act to effect the object of the conspiracy”[14] or “endeavors to violate any of the provisions of subsection (a) or (b) of this Code section and commits any overt act to effect the object of the endeavor.”[15] And because the RICO Act is designed to “reach collective action, what matters is the existence of a pattern of criminal activity (including at least two interrelated acts) and each defendant’s participation in that pattern, whether by one act or more.”[16] In this case, although the Lodge has already settled with Riddle’s estate and it is not a party to these proceedings, the Lodge alleged in its complaint that Riddle engaged in 158 civil RICO violations by committing theft by conversion, which is a specific intent crime.[17] Theft by conversion occurs when a person, “having lawfully obtained funds or other property of another . . . under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, . . . knowingly converts the funds or property to his own use in violation of the agreement or legal obligation.”[18] And as to Hattaway, the Lodge claims he conspired with Riddle for the thefts committed in 148 of those civil RICO violations.[19] The Lodge identifies what it deems circumstantial evidence of Hattaway’s involvement in Riddle’s scheme to steal money from it and proffers as an “overt act” a statement by Hattaway that he was glad he had Riddle “fill out those promissory notes,” which the Lodge claims was part of an effort to make the thefts appear to be legitimate loans. But the Lodge also asserts that—by virtue of his own membership in the Lodge—Hattaway (1) should have known the Lodge did not approve of the high-dollar loans to Riddle, and that the approval procedures for such loans had not been followed; (2) identified the assets as loans rather than thefts on the income tax returns and Lodge financial statements, which “aid[ed] Riddle in securing the fruits of his crime”; (3) never delivered copies of the financial statements or tax returns to anyone other than Riddle; (4) stalled when Montgomery asked to see the financial records in 2017; and (5) signed the income tax returns with Riddle.[20] As our Supreme Court has explained, circumstantial evidence is “evidence which does not constitute direct proof with regard to the issue of fact or the hypothesis sought to be proven by the evidence; rather, circumstantial evidence constitutes proof of other facts consistent with the hypothesis claimed.”[21] And in general, when passing upon a motion for summary judgment, a finding of fact “which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.”[22] But this rule is subject to a significant limitation: “In neither criminal nor civil cases is it required that the proved circumstances shall show consistency with the hypothesis claimed and inconsistency with all other reasonable theories to the point of logical demonstration.”[23] Thus, a plaintiff’s claim may survive summary judgment with circumstantial evidence if other theories are less probable.[24] Here, our de novo review of the record reveals there is no evidence Hattaway ever received any of the money Riddle purportedly “borrowed” from the Lodge, and the GBI investigation that resulted from the Lodge’s discoveries never resulted in any arrests. Additionally, no one knew whether Riddle—who was Hattaway’s only contact at the Lodge—told Hattaway the loans were authorized. Instead, there was direct evidence the standard practice was for Riddle to provide Hattaway’s office with a hand written summary of information necessary to file the annual tax returns. And it was a third individual within Hattaway’s office (who provided her testimony via affidavit) who actually prepared the first tax return in 2011, showing loans to Riddle from the Lodge. In doing so, she informed Hattaway that documentation was necessary for those loans. Then, upon receiving copies of promissory notes, she included the loans on the tax return. And afterward, boxes were checked on the tax returns to indicate the loans were approved by the Board or committee and that there were written agreements for the loans. Later, after Riddle’s actions were revealed, Hattaway remarked to a Lodge officer that he was glad he made Riddle fill out promissory notes and reported the loans on the tax forms for the Lodge because the GBI had “cleared” him. There is no evidence, then, that Hattaway acted with specific intent to harm the Lodge and commit theft.[25] Indeed, in addition to a complete lack of evidence that Hattaway received any of the Lodge’s funds,[26] there was also no evidence he concealed the alleged loans because they were recorded on the Lodge’s income tax returns and supported by promissory notes that Riddle provided to Hattaway after they were initially requested by a third party.[27] At most, the Lodge points to speculative evidence as to what Hattaway should have known to identify Riddle’s purported loans as fraudulent, but “the law does not authorize a finding that conspiracy exists merely because of some speculative suspicion.”[28] The Lodge’s suggestions that Hattaway knew or should have known the loans were fraudulent, then, are all based upon “mere conjecture and speculation that cannot defeat summary judgment in the face of the uncontroverted evidence that Hattaway prepared the tax returns based upon documents provided by Riddle; and the accounting compilations prepared by Hattaway all included the following statement: “A compilation is limited to presenting in the form of financial statements information that is the representation of management. We have not audited or reviewed the accompanying financial statements and, accordingly, do not express an opinion or any other form of assurance on them.” Additionally, further evidence showed that Hattaway provided Riddle, the Lodge treasurer, with the tax returns, and no other Lodge officers ever requested to see the tax returns or any other financial documents in Riddle’s possession—at least prior to Montgomery’s tenure as Worshipful Master—because Riddle was trusted “unequivocally.”[29] Importantly, the Estate offered uncontroverted expert testimony that Hattaway correctly accounted for and reported the Riddle loans, and that, had any officer other than Riddle reviewed the financial documents, they would have been aware of the loans as reported by Hattaway. In short, the evidence proffered by the Lodge does not make it less probable that Hattaway had no intent to aid Riddle in the theft of Lodge funds, and thus, the trial court did not err in granting summary judgment in favor of the Estate.[30] 2. Relatedly, the Lodge maintains the trial court erred in granting summary judgment to the Estate on the basis that the Lodge’s officers failed to exercise due diligence to discover Riddle’s theft of funds. But more specifically, the trial court concluded that the alleged misrepresentations by Hattaway—i.e., Hattaway’s alleged predicate offenses—were not the proximate cause of the Lodge’s loss or damages because it failed to have in place any reasonable measures to check Riddle’s work as treasurer. But we need not reach this enumeration of error because, as discussed supra, we conclude the trial court properly granted summary judgment on the ground that there is no genuine issue of material fact as to whether Hattaway committed a predicate act for purposes of Georgia’s civil RICO Act. 3. Finally, the Lodge argues the trial court erred in granting summary judgment on the basis that the statute of limitation ran prior to the Lodge filing suit against the Estate. But once again, we need not address this alternative basis for the grant of summary judgment because we have affirmed the trial court’s decision for the reasons set forth in Division 1, supra. For all these reasons, we affirm the trial court’s grant of summary judgment in favor of the Estate. Judgment affirmed. Mercier and Markle, JJ., concur.
