text:
    A17A0249.
    COSTA et al. v. HAMILTON STATE BANK.
    (802 SE2d 80)
   McFADDEN, Presiding Judge.

This appeal concerns an action brought by Hamilton State Bank (the bank) on guaranties signed by Juan R. Costa and Freddy A. Achecar (the appellants). The trial court granted summary judgment to the bank, and Costa and Achecar appeal pro se. They argue that the bank’s summary judgment motion was untimely, but we find it was within the trial court’s discretion to consider the motion. They argue that the bank did not establish their liability on the guaranties, but we find the evidence set forth a prima facie case of liability. Finally, they argue that the bank did not establish its damages, and we agree. Consequently, we affirm the trial court’s grant of summary judgment as to liability, but reverse the trial court’s grant of summary judgment as to damages.

1. Timeliness of motion for summary judgment.

The guarantors argue that the trial court erred in considering the bank’s motion for summary judgment because the motion was untimely. A party, such as the bank, seeking to recover upon a claim, “may, at any time after the expiration of 30 days from the commencement of the action . . . move with or without supporting affidavits for a summary judgment in [itsl favor upon all or any part thereof.” OCGA § 9-11-56 (a). But

the phrase “at any time” does not mean that a motion for summary judgment may be filed without [any] time limit whatsoever. Uniform Superior Court Rule (USCR) 6.6 provides that “(m)otions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment.”

Steele v. Riverchase Dev. Co., 311 Ga.App. 340, 341 (1) (715 SE2d 760) (2011) (citation and punctuation omitted). Nevertheless, “the trial court has broad discretion in regulating its business and scheduling trials.” Cooper-Bridges v. Ingle, 268 Ga.App. 73, 75 (1) (601 SE2d445) (2004) (citation and punctuation omitted).

The record shows that in January 2016 the trial court entered a case management order stating that, “[e]xcept as otherwise provided in the Civil Practice Act or ordered by the Court, the period for filing motions has already closed.” On March 10, 2016, the bank filed a notice of substitution of counsel. On May 2, 2016, the trial court entered a trial notice placing the case on a May 20 trial calendar and stating that outstanding motions “shall be heard prior to the call of the case for trial.” (Emphasis omitted.) And on May 5, 2016, the bank’s new counsel filed a motion for summary judgment, which the trial court granted on June 7, 2016.

The trial court did not abuse his discretion. The bank’s new counsel filed the motion for summary judgment three days after the trial court entered the notice of the trial calendar. That notice reflected that the case was not scheduled for trial on a particular day but was one of several cases to be tried on a calendar that “shall continue until exhaustion,” on a schedule to be determined at the calendar call. “No continuance of the trial was sought or granted because of the motion for summary judgment; instead, the trial was obviated by the grant of [the bank’s] motion for summary judg-ment. . . .’’ Pullen v. Oxford, 227 Ga.App. 782 (1) (490 SE2d 478) (1997) (citation and punctuation omitted). And more than 30 days elapsed before the trial court ruled on the motion, giving Costa and Achecar the opportunity to respond to it. See OCGA § 9-11-56 (c) (a motion for summary judgment “shall be served at least 30 days before the time fixed for the hearing”); Brown v. Shiver, 183 Ga.App. 207, 209 (2) (358 SE2d 862) (1987) (OCGA § 9-11-56 (c) “allows the party opposing a motion for summary judgment at least thirty days to respond before the motion is heard”). We find no error in the trial court’s consideration of the bank’s motion for summary judgment.

2. Summary judgment.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Where the movant is the plaintiff, [it] has the burden of presenting evidence to support [its] claim and the burden of piercing the defendant’s affirmative defenses.

State of Ga. v. Rozier, 288 Ga. 767, 768 (707 SE2d 100) (2011) (citation omitted).

In support of its motion for summary judgment, the bank submitted the affidavit of Paul McLaughlin, its senior vice president and special assets manager, who was the bank employee primarily responsible for administering and recovering upon the guaranties at issue in this case and who also testified as the bank’s custodian of records. McLaughlin testified that in January 2006, CA Associates, LLC, executed a promissory note in favor of Douglas County Bank. Costa and Achecar each executed guaranties of this obligation, and copies of the guaranties, along with other loan documents, were attached to the affidavit. Douglas County Bank subsequently closed, and an appointed receiver assigned all of its assets to the bank. Copies of the note, guaranties, and assignment were attached to and referenced in McLaughlin’s affidavit. After CA Associates defaulted on its obligation under the note, Costa and Achecar defaulted on their obligations under the guaranties.

Costa and Achecar argue that the bank was not entitled to summary judgment because it did not establish a prima facie case allowing it to recover on the guaranties and because there exist genuine issues of material fact. A plaintiff in a suit on a guaranty “establishes a prima facie case by producing [the] guarant[y] and showing that it was executed[.]” CSS Real Estate Dev. I v. State Bank and Trust Co., 324 Ga. App. 184, 185 (749 SE2d 773) (2013) (citation omitted). When the signature on the guaranty “is admitted or established, production of the instrument entitles the holder to recover on it unless the defendant establishes a defense.” L. D. F. Family Farm v. Charterbank, 326 Ga. App. 361, 363 (756 SE2d 593) (2014) (citation omitted). “However, where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty” Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 250 (2) (758 SE2d 145) (2014) (citation and punctuation omitted). As detailed below, the bank established its prima facie case of liability against Costa and Achecar but did not meet its burden as to damages.

(a) Liability.

The bank produced several signed guaranties that identify the appellants as guarantors, but Costa and Achecar argue that there is no evidence that they executed those specific guaranties. They also argue that there isa factual question regarding the assignment of the guaranties to the bank. We are not persuaded by either argument, so we affirm the grant of summary judgment to the bank on the issue of liability.

(i) Evidence of execution of the guaranties.

In their answers, Costa and Achecar stated that they could neither admit nor deny executing the guaranties “for want of information.” Compare Gause v. Fidelity Bank, 332 Ga. App. 844, 847 (1) (b) (775 SE2d 207) (2015) (physical precedent only) (defendant’s affidavit testimony that he was certain he did not execute a guaranty and believed that the signature page may have come from another document precluded summary judgment to the bank in its action on the guaranty). But there is no dispute that Costa and Achecar did guarantee a loan made by Douglas County Bank (the bank’s predecessor) to CA Associates — they admitted so in their briefs before both this court and the trial court, and Achecar also admitted so in response to a request for admission. See Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 196-197 (1) (715 SE2d 491) (2011) (party’s factual admissions made in briefs are admissions in judicio and are binding). And McLaughlin testified that the guaranties presented by the bank in its prosecution of this action were the guaranties associated with that loan. Costa and Achecar argue that McLaughlin could not attest to the guaranties’ authenticity because he had no personal knowledge of their execution. McLaughlin testified, however, that the guaranties

were received in the regular course of business of [the bank] and are kept in the course of the regularly conducted business activity of [the bank]. It is the regular practice of [the bank] for an employee or representative with knowledge of the act, event, or contract recorded to make the record at or near the time or reasonably soon after its occurrence. The documents attached [to the affidavit] are exact duplicates of the originals, which are currently held by [the bank] in the regular course of [the bank’s] business.

This was sufficient to authenticate the documents. See OCGA § 24-9-902 (11); Salas v. JP Morgan Chase Bank, 334 Ga. App. 274, 280-281 (2) (a) (779 SE2d 48) (2015); Ware, 327 Ga. App. at 248-249 (2). Taken together, the appellants’ admissions and McLaughlin’s affidavit testimony establish that the appellants executed the guaranties.

(ii) Assignment.

Costa and Achecar argue that the copy of the document assigning the guaranties to the bank, which was attached to and referenced in the McLaughlin affidavit, created a genuine issue of material fact regarding the assignment. This is, essentially, an argument that the bank did not establish that it is the real party in interest. See Patrick Malloy Communities v. Community & Southern Bank, 334 Ga. App. 76, 79 (1) (778 SE2d 242) (2015). Costa and Achecar argue that there are questions of fact regarding the assignment because the assignment did not include a copy of an underlying purchase agreement, which was referenced in it but not made an exhibit to it. However, they cite to no authority requiring that all documents referenced in an assignment be attached as exhibits to it. They also argue that there are questions of fact regarding the assignment because it is “missing pages.” This appears to refer to a single missing page in a limited power of attorney that was attached to the assignment as evidence of the authority of the person signing the assignment to act on behalf of the assignor. The pages that are in the record include the entire text of the limited power of attorney, the signature of the party granting the power, the signatures of two witnesses, and the signature of a notary public, and it is unclear what information, if any, was on the missing page. Again, Costa and Achecar offer no citation to authority to support their position that the lack of this page gives rise to questions of fact that would preclude summary judgment.

(b) Damages.

The bank used the McLaughlin affidavit to establish its damages. Costa and Achecar argue that the trial court should not have considered this affidavit because it contained legal conclusions and referred to attached loan history documents that were inadmissible. We are not persuaded by either argument. But they also argue that documents attached to and referenced in the affidavit created fact questions about damages that preclude summary judgment. Because the documents attached to the affidavit do not support the testimony, we are constrained to agree and, therefore, to reverse the grant of summary judgment as to damages.

(i) Legal conclusions.

Arguing that the trial court should not have considered the McLaughlin affidavit because it contained legal conclusions, Costa and Achecar point to McLaughlin’s statements that the appellants were in default and that the bank had provided them with “appropriate demand and notice” before filing its action. But the affidavit also contained factual statements on those points: McLaughlin testified that Costa and Achecar had “failed to pay the amounts due and owing under [the guaranties] as those amounts became due and owing [and that the] obligations remain unpaid, due, and owing to [the bank]”; and he testified that “by letters [attached to the affidavit and incorporated therein], [the bank] made demand upon [Costa and Achecar] for immediate payment of the entire unpaid principal, interest, and late charges due and owing under the [n]ote [that was the subject of the guaranties].” Compare GE Capital Mtg. Svcs. v. Clack, 271 Ga. 82, 85 (2) (b) (515 SE2d 619) (1999) (mere statement in affidavit that notice was “published ‘as required by law’ ” was a legal conclusion that did not establish the fact that bank had complied with foreclosure notice requirement). These factual statements could be considered in determining the bank’s entitlement to summary judgment, even if the affidavit also contained legal conclusions drawn from those facts. See Ware, 327 Ga. App. at 250 (2) (“even where a portion of [an] affidavit is inadmissible, that fact does not invalidate the entire affidavit”) (citation omitted); Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (4) (280 SE2d 842) (1981) (“the mere fact that the affidavits in question might contain certain averments which could be characterized as conclusions . . . did not prohibit the trial judge from considering the admissible parts thereof and from granting summary judgment if appropriate”).

(ii) Admissibility of loan history documen ts.

Costa and Achecar argue that loan history documents attached to and referenced in the affidavit, which the bank used to establish the amount outstanding on the note, were summaries that were inadmissible because the bank had not made the underlying records upon which the summaries were based available to them. See OCGA § 24-10-1006 (“The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place.”).

[A] document that simply lists the current balance, accrued interest, and fees owed on a bank loan at the time of the litigation is not a business record but rather a “summary.”... In contrast, . . . reports that provide a detailed transaction history of a loan [are] business records, not. . . summaries.

Decided June 19, 2017.

Juan R. Costa, pro se.

Freddy A. Achecar, pro se.

Balch & Bingham, Christopher S. Anulewicz, Walter E. Jones, for appellee.

Roberts v. Community & Southern Bank, 331 Ga. App. 364, 370-371 (2) (771 SE2d 68) (2015) (citations omitted). The loan history documents at issue here provided detailed transaction histories from the loan’s inception and were admissible as business records. Id. at 371 (2).

(iii) Failure of affidavit exhibits to support testimony.

We agree with Costa and Achecar, however, that the bank did not show that it is entitled to summary judgment on damages, because the loan history documents attached to McLaughlin’s affidavit give rise to questions of fact that preclude summary judgment. McLaughlin testified in his affidavit that the total amount due and owing under the note and guaranties as of April 28, 2016, was $413,409.86. The affidavit also “recited that it was based in part on bank records, and it is clear from the context that the portion of the affidavit which set out the amount owed by [Costa and Achecar] was based on bank records.” Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991) (citation omitted). An affidavit that refers to bank records to establish the amount owed on a debt must attach those records. See id. The loan history documents attached to McLaughlin’s affidavit, however, do not reflect the amount of damages set forth in that affidavit; in fact, they contain no information whatsoever about activity on the loan after 2013. Because this discrepancy is material to the amount owed under the note, and therefore the guaranties, material issues of fact exist as to the amount of damages that preclude summary judgment on that issue. See Patrick Malloy Communities, 334 Ga. App. at 83 (2); Ware, 327 Ga. App. at 251 (2).

Judgment affirmed in part and reversed in part, and case remanded.

Branch and Bethel, JJ., concur.

       The record does not contain Costa’s response to any requests for admissions.


source: Caselaw Access Project

author: McFADDEN, Presiding Judge.

license: Public Domain

text:
    A17A0379.
    BOWMAN v. THE STATE.
    (802 SE2d 706)
   McFADDEN, Presiding Judge.

We granted this interlocutory appeal to determine whether the trial court erred in denying Denzell Bowman’s motion to suppress his recorded custodial statement. He argues that admission of the statement would violate his Sixth Amendment right to counsel. He waived his right to counsel during the interview that resulted in the statement, but he argues that the waiver was ineffective because law enforcement officers initiated the interview after Bowman’s right to counsel under the Sixth Amendment had attached. The authority he cites for that proposition has been overruled or disapproved. Bowman has offered no other argument that the waiver was ineffective, and the evidence supported the trial court’s ruling that Bowman had freely and voluntarily given the interview. So we affirm.

“In reviewing the trial court’s grant or denial of a motion to suppress, we will not disturb [his] findings if there is any evidence to support them[.] The trial court’s application of the law is subject to de novo review.” Johnson v. State, 336 Ga. App. 888 (785 SE2d 424) (2016) (citations and punctuation omitted). So viewed, the record shows that Bowman was arrested pursuant to a warrant on a charge of armed robbery. At his first appearance hearing before the magistrate court, Bowman did not request a court-appointed attorney but stated that he had hired an attorney (In fact, Bowman did not retain the attorney in this case; the attorney had represented Bowman in other matters.) Subsequently, law enforcement officers interviewed Bowman at the jail. At the start of that interview, an officer recited Miranda warnings to Bowman and had him sign a waiver of rights form. Bowman appeared to understand what the officer was saying to him regarding his rights and was not reluctant to speak with the officer. He did not ask to speak with an attorney at any point during the interview, nor did he mention that he had hired an attorney.

Bowman moved to suppress his statement on Sixth Amendment grounds. In denying the motion, the trial court found that Bowman “was appropriately Mirandized by officers and thereafter gave an interview which [was] freely and voluntarily given.”

The line of authority on which Bowman relies begins with the proposition that, “absent a valid waiver, [a] defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches.” Moran v. Burbine, 475 U. S. 412, 428 (III) (106 SCt 1135, 89 LE2d 410) (1986) (citations omitted). See Housel v. State, 257 Ga. 115, 121 (1) (d) (355 SE2d 651) (1987). In Michigan v. Jackson, 475 U. S. 625 (106 SCt 1404, 89 LE2d 631) (1986), the United States Supreme Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his [Sixth Amendment] right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Id. at 636 (III). Citing Jackson and applying this rule, our Supreme Court held in O’Kelley v. State, 278 Ga. 564 (604 SE2d 509) (2004), that “the Sixth Amendment right to counsel, once attached, cannot be waived by the defendant during questioning that is initiated by interrogators.” Id. at 568 (citation omitted). Bowman relies on this bright-line rule to argue that his waiver was ineffective because it occurred during police-initiated questioning after, he asserts, his Sixth Amendment right to counsel had attached.

But the bright-line rule articulated in Jackson and O’Kelley is no longer good law. The United States Supreme Court overruled Jackson in Montejo v. Louisiana, 556 U. S. 778, 797 (IV) (129 SCt 2079, 173 LE2d 955) (2009). Following suit, our Supreme Court disapproved O’Kelley in Stinski v. State, 286 Ga. 839, 856 (61), n. 5 (691 SE2d 854) (2010). See also State v. Stone, 304 Ga. App. 695 & n. 9 (697 SE2d 852) (2010).

So as the law now stands under Mon tejo, even if we assume that Bowman’s Sixth Amendment right to counsel had attached at the first appearance hearing, this alone did not invalidate his waiver of that right during the police-initiated interview. Had Bowman made a clear assertion of the right to counsel at the start of the police-initiated interview, then no interview should have taken place. Montejo, 556 U. S. at 797 (V). “Even if [Bowman] subsequently agreed to waive his rights, that waiver would have been invalid had it followed an unequivocal election of the right.” Id. (citation and punctuation omitted). But it is undisputed that Bowman did not assert his right to counsel at any point during the interview. And Bowman has not argued that his Sixth Amendment waiver was not knowing and voluntary on any other ground. See id. at 798 (V) (discussing possibility that Sixth Amendment waiver could be invalid for reasons other than attachment of Sixth Amendment right to counsel at a hearing that preceded a police-initiated interrogation). Moreover, the record supports the trial court’s finding that Bowman freely and voluntarily gave his statement in an interview after being informed of his right to an attorney. See Bradshaw v. State, 300 Ga. 1, 3 (2) (792 SE2d 672) (2016).

Judgment affirmed.

Branch and Bethel, JJ., concur.

Decided June 19, 2017.

Matthew D. Crosby, for appellant.

Daniel J. Porter, District Attorney, Elizabeth V. Rogan, Assistant District Attorney, for appellee.


author: MILLER, Presiding Judge.

text:
    A17A0404.
    SMITH et al. v. DiFRANCESCO.
    (802 SE2d 69)
   MILLER, Presiding Judge.

In this appeal, we must determine whether the trial court properly found that the defendant doctor was entitled to summary judgment on the plaintiff doctor’s claim of defamation per se based on the defendant’s transmission of a letter to patients in which the defendant called into question the plaintiff’s ability to practice medicine. For the reasons that follow, we reverse the trial court’s order and remand the case for further proceedings.

“On appeal from a grant of summary judgment, we review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of fact remains and that the moving party is entitled to judgment as a matter of law.” (Citation omitted.) Chapman v. C. C. Dickson Co., 273 Ga. App. 640, 641 (1) (616 SE2d 478) (2005).

So viewed, the evidence shows that Cenegenics is a company that provides age management services throughout the country and operates a clinic in Atlanta through CG Physicians, LLC (“CG Physicians”). Dr. Randy Smith is the sole shareholder of CG Physicians and at all relevant times was a licensed physician. Cenegenics and CG Physicians formed a management company to handle the administrative duties of the Atlanta practice.

In 2013, at Cenegenics’insistence, Smith stopped seeing patients at the Atlanta clinic and directed his focus to business development. Dr. Lisa DiFrancesco and another physician were hired to take over patient care in the clinic. In March 2014, Smith left Cenegenics altogether. He then contacted at least some CG Physicians’ patients by e-mail to offer his anti-aging programs.

At least two of these patients contacted DiFrancesco, expressing concern about the e-mails from Smith. DiFrancesco authorized Cene-genics to send a letter to all CG Physicians’ patients to address these concerns. In the letter, DiFrancesco made the following statements:

You may have received an e-mail from a physician by the name of Dr. Randy Smith regarding your Cenegenics program. At one time Dr. Smith was a physician with Cenegen-ics Atlanta.
We are contacting you so that you may make an informed decision if Dr. Smith attempts to contact you to entice you to discontinue your Cenegenics Age Management Program with me ....
Dr. Smith is no longer authorized to offer the Cenegen-ics program ....
While Dr. Smith was an early pioneer in anti-aging medicine, much has changed since his early days in the practice, and a lot has changed over the last year since [Dr. Smith] last had the ability to practice medicine.
If you would like more information about anything you may hear or receive about changing your course of treatment, please feel free to contact us.

(Emphasis omitted and supplied.) DiFrancesco sent this letter only to patients of CG Physicians.

Thereafter, Smith sued DiFrancesco for defamation based on her letter to CG Physicians’ patients. He also requested equitable relief and punitive damages. The trial court granted summary judgment in favor of DiFrancesco, finding that the letter was not defamatory per se.

1. Smith first argues that the trial court erred by granting summary judgment to DiFrancesco because the statement at issue constituted defamation per se, as it did not require innuendo to be understood as injurious. We agree.

“A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). There are four elements to a defamation claim: “(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.” (Citation and punctuation omitted.) Mathis v. Cannon, 276 Ga. 16, 20-21 (2) (573 SE2d 376) (2002).

Here, the trial court concluded that the statement was not defamatory per se because it required innuendo to be understood as injurious. We disagree. “A written defamatory statement is actionable as either libel per se or libel per quod.” (Citation omitted.) Zarach v. Atlanta Claims Assn., 231 Ga.App. 685, 688(2) (500 SE2d 1) (1998). The trial court found, and Smith conceded, that Smith alleged only libel per se.

Libel per se consists of a charge that one is guilty of a crime, dishonesty or immorality. Statements that tend to injure one in his trade or business also are libelous per se. When determining whether words are defamatory as a matter of law, courts may not hunt for strained constructions and must rely upon the words themselves in considering whether a statement was defamatory per se. Defamatory words which are actionable per se are those which are recognized as injurious on their face — without the aid of extrinsic proof. However, if the defamatory character of the words does not appear on their face but [they] only become defamatory by the aid of extrinsic facts, they are not defamatory per se, but per quod, and are said to require innuendo. The law is abundantly clear in Georgia — words that are libelous per se do not need innuendo.

(Citations and punctuation omitted.) Id. In other words, “[t]he defamatory character of written material must appear on its face[.]” (Citation omitted.) Id. at 689 (2); see also Cottrell v. Smith, 299 Ga. 517, 523 (II) (A) (788 SE2d 772) (2016) (words that require extrinsic proof to show their defamatory nature are not libel per se). As our Supreme Court recently explained,

[a]s for defamation in regard to a trade, profession, or office, the kind of aspersion necessary to come under this phase of the rule of [defamation] per se must be one that is especially injurious to the plaintiff’s reputation because of the particular demands or qualifications of plaintiff’s vocation. The words must either be spoken of the plaintiff in connection with his calling or they must be of such a nature such as to charge him with some defect of character or lack of knowledge, skill, or capacity as necessarily to affect his competency successfully to carry on his business, trade, or profession.

(Citation and punctuation omitted.) Cottrell, supra, 299 Ga. at 524 (II) (A). Where a statement is defamatory per se, the element of damages is inferred. Strange v. Henderson, 223 Ga. App. 218, 219 (477 SE2d 330) (1996).

Here, the words in DiFrancesco’s letter, on their face, included the phrase “since [Dr. Smith] last had the ability to practice medicine.” To determine if these words are defamatory per se, we consider their “natural and obvious meanings,” Smith v. Stewart, 291 Ga.App. 86, 97 (2) (b) (660 SE2d 822) (2008), and “look[ ] to the plain import of the words.” (Citation and punctuation omitted.) Bellemeade, LLC v. Stoker, 280 Ga. 635, 637 (631 SE2d 693) (2006). The “ability to practice medicine,” in its normal and obvious meaning, indicates that Smith has lost his license or no longer has the physical or mental capacity to practice medicine. This interpretation requires no innuendo because either meaning is injurious to Smith’s reputation in his profession. See Cottrell, supra, 299 Ga. at 524 (II) (A); Bellemeade, supra, 280 Ga. at 637; see also Ultima Real Estate Investments v. Saddler, 237 Ga.App. 635, 636 (1) (516 SE2d 360) (1999) (statements that plaintiff “did not know what he was doing” in his business dealings were actionable as slander).

DiFrancesco argues that the challenged statement refers to Smith’s ability to practice with Cenegenics, but nothing in the words themselves would reasonably lead a reader to that interpretation. The average reader viewing the entire letter would not understand it to mean that Smith was still licensed to practice medicine but simply no longer able to practice with Cenegenics. See Lucas v. Cranshaw, 289 Ga.App. 510, 513 (1) (659 SE2d 612) (2008) (instructing courts to look at a writing as the average reader to whom it is addressed would). Any reader would naturally conclude that Smith could no longer practice medicine. We thus cannot adopt DiFrancesco’s “strained construction” that the statement on its face referred only to Smith’s involvement with Cenegenics rather than his ability to practice medicine generally See Zarach, supra, 231 Ga. App. at 688 (2). Accordingly, the trial court erred in finding that the statement was not defamatory per se.

2. Smith next argues that the trial court erred in finding that the statement was privileged as a matter of law. Again, we agree.

The trial court found that DiFrancesco was entitled to summary judgment on the alternate ground that the challenged statement was privileged. See OCGA § 51-5-7; Smith, supra, 291 Ga. App. at 91 (1) (setting out elements of defamation to include unprivileged communication).

A defendant who has made a statement that is defamatory may nevertheless avoid liability if the statement was privileged, absent a showing of actual malice. Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 130 (1) (a) (670 SE2d 818) (2008).

Statements made with a good faith intent on the part of the speaker to protect her interest in a matter in which she is concerned are subject to conditional privilege. See OCGA § 51-5-7 (3). To establish that the defamatory statement was conditionally privileged, DiFrancesco must show that (a) she acted in good faith; (b) in connection with an interest to be upheld; (c) the statement was properly limited in its scope and occasion; and (d) publication was made to proper persons. Speedway Grading Corp. v. Gardner, 206 Ga. App. 439, 442 (2) (425 SE2d 676) (1992); OCGA § 51-5-7 (3). See also Dominy v. Shumpert, 235 Ga. App. 500, 504-505 (2) (510 SE2d 81) (1998). The question of conditional privilege is typically for the jury Cohen v. Hartlage, 179 Ga. App. 847, 849 (348 SE2d 331) (1986).

Based on the limited record before us, we conclude that there remains a genuine issue of material fact regarding all the elements of privilege. DiFrancesco argued, and the trial court found, that the statement was privileged because DiFrancesco acted in good faith and limited publication of the statement to patients Smith has contacted. Smith argues in response that DiFrancesco did not act in good faith because she did not take any steps to determine the truth of the statement, she was motivated by greed rather than a concern for patients, and because the patients who received the message were not just DiFrancesco’s patients but were instead patients of his practice, CG Physicians.

The record does not conclusively show that DiFrancesco acted in good faith because it is undisputed that Smith was at all times licensed to practice medicine and DiFrancesco had no basis to believe otherwise. Cf. Smith v. Henry, 276 Ga. App. 831, 832-833 (1) (625 SE2d 93) (2005) (speaker acted in good faith when he based the challenged statement on conversations with the plaintiff and other employees of the tax assessor’s office and he believed his comments were true). Moreover, there is a factual question as to whether the statement was properly limited in scope or audience. The record before us contains only the affidavits of Smith and DiFrancesco, e-mails between DiFrancesco and Cenegenics about the statement issued to patients in which DiFrancesco asks Cenegenics to contact all her patients, and a copy of the CG Physicians management agreement. These documents do not conclusively establish who received the letter from DiFrancesco or that the publication was properly limited to only DiFrancesco’s patients who received communication from Smith. See Smith v. Vencare, Inc., 238 Ga. App. 621, 627-628 (2) (e) (519 SE2d 735) (1999) (where there is some evidence to rebut claim of an element of privilege, summary judgment is improper) (physical precedent only). Therefore, the question of privilege is for the jury. Cohen, supra, 179 Ga. App. at 849.

Decided June 19, 2017

Steven J. Strelzik, Mary Trachian-Bradley, for appellants.

Greenberg Traurig, Michael J. King, for appellee.

Accordingly, the evidence did not authorize the trial court to conclude, as a matter of law, that DiFrancesco’s statement was privileged. We therefore reverse the trial court’s order granting summary judgment, and remand the case for further proceedings.

3. Finally, because we conclude that summary judgment was improper, we need not address Smith’s claim of actual malice.

Judgment reversed and case remanded.

Doyle, C. J., and Reese, J., concur.

       CG Physicians was also named as a plaintiff. It is undisputed that there was no statement made concerning this entity, and Smith does not challenge the grant of summary judgment with respect to this plaintiff. Smith’s breach of contract claims against Cenegenics remain pending in the superior court and are not part of this appeal.

       See https://www.merriam-webster.com/dictionary/ability (defining the term “ability” as the “physical, mental, or legal power to do something” or “competence in doing something”).

       Georgia law recognizes two different kinds of privilege, absolute and conditional. Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 130-131 (1) (a) (670 SE2d 818) (2008). DiFrancesco does not argue that the statement at issue here is absolutely privileged. See OCGA § 51-5-8. Thus, we look to whether the trial court properly found that DiFrancesco’s statement was subject to conditional privilege.

       DiFrancesco argued before the trial court that the statement was privileged as both a statement in performance of a public duty and as one made with a good faith intent to protect her interest in the matter under OCGA § 51-5-7 (1) and (3). The trial court found only that it was privileged as a good faith statement to protect one’s interest.


author: DOYLE, Chief Judge.

text:
    A17A0505.
    CARPENTER v. McMANN et al.
    (802 SE2d 74)
   DOYLE, Chief Judge.

In a suit brought by Sherinna McMann and Childronda Holton arising from an automobile collision, defendant Eric Carpenter appeals from the trial court’s order denying his motion to transfer venue to his home county. Carpenter contends that the trial court erred because establishing venue on the basis of a nominal John Doe joint tortfeasor contravenes Carpenter’s constitutional right to be sued in the county of his residence. For the reasons that follow, we affirm.

The record shows that McMann and Holton sued Carpenter and a John Doe defendant, seeking damages for injuries allegedly caused by a vehicle collision. The complaint alleges that McMann and Holton were passengers in a car traveling on Interstate 75 in Bibb County when the John Doe defendant negligently entered their lane of travel and caused their driver to slow abruptly. The complaint further alleges that Carpenter’s vehicle then collided into the rear of their vehicle because he was following too closely The John Doe defendant fled the scene and has not been identified. McMann and Holton filed their complaint in Bibb County, where the collision occurred; Carpenter resides in Crawford County

Carpenter filed an answer, asserting various defenses and challenging venue, and moved to transfer venue to Crawford County Following a hearing, the trial court denied Carpenter’s motion, relying in part on a provision of the uninsured motorist statute creating a presumption that the residence of a John Doe defendant is either the county in which the collision occurred or the county of residence of the plaintiff. Because Carpenter and John Doe are alleged to be joint tortfeasors, the trial court concluded that venue was proper in Bibb County, the site of the collision, because the Georgia Constitution provides for venue in the home county of either tortfeasor when joint tortfeasors are sued. The trial court certified its ruling for immediate review, and this Court granted Carpenter’s application for interlocutory appeal.

We begin with an overview of the applicable law. The Georgia Constitution provides that “[sjuits against . . . joint tort-feasors . . . residing in different counties may be tried in either county.” It also provides that “[a]ll other civil cases, except juvenile court cases shall be tried in the county where the defendant resides[.]” Because this is a case involving two alleged joint tortfeasors, venue is proper in the county of residence of either tortfeasor. But the other alleged tortfeasor was a John Doe defendant who to this day remains unidentified. The uninsured motorist statute provides:

In cases where the owner or operator of a vehicle causing injury or damages is unknown and an action is instituted against the unknown defendant as “John Doe,” the residence of such “John Doe” defendant shall be presumed to be in the county in which the accident causing injury or damages occurred, or in the county of residence of the plaintiff, at the election of the plaintiff in the action.

Carpenter argues that the John Doe defendant should be treated as a nominal party, and Carpenter, a known party, should be able to insist on having the action heard in his own county of residence. Carpenter argues that the John Doe party only acts as a place holder for purposes of the present litigation against Carpenter because any judgment against the John Doe defendant would not function as an in personam judgment against the missing defendant. As a mere place holder, Carpenter argues, the statutory residence of the John Doe defendant should not be considered for purposes of establishing venue.

Nevertheless, to so hold would be to ignore the plain language of OCGA § 33-7-11 (d) (1), which provides that the residence of “ ‘John Doe’ defendant^] shall be presumed to be [either] in the county in which the accident causing injury or damages occurred, or in the county of residence of the plaintiff...When construing a statute, we are required

to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.... [T]he cardinal rule is to glean the intent of the legislature. To do this, we must presume that the statute was enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. It is therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and its meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.

Taking this approach, we presume that the legislature was fully aware of the constitutional provisions providing that: joint tortfea-sors from different, counties may be sued in either of their home counties, and defendants are otherwise entitled to be sued in their home county. The upshot of these provisions is that joint tortfeasors are, as a matter of constitutional law, always subject to being sued in the county of their co-tortfeasor, and there is no unqualified right to a trial in one’s home county.

Consistent with this, we conclude that the trial court correctly held that the plain language of OCGA § 33-7-11 (d) (1) authorized the venue determination in this case. The plaintiffs alleged that each defendant committed tortious acts that jointly injured the plaintiffs. As such, the John Doe defendant is alleged to have played a vital role in causing the plaintiffs’ alleged injuries, and this scenario falls squarely within the Georgia Constitution’s venue prescription for joint tortfeasors. Absent some other constitutional or statutory directive requiring a different outcome, we discern no error in the trial court’s ruling that venue was proper in Bibb County under a joint-tortfeasor theory.

This Court has reached a similar result in a case involving joint tortfeasors, when it held that venue was proper in the county where the administrator of a deceased joint tortfeasor’s estate resided. Although that case focused on whether insolvency of the estate rendered it a nominal party, the Court nevertheless concluded that the home county of the administrator (not the decedent) was an appropriate venue.

“In a tort action, if venue in a particular county is proper as to one joint tortfeasor, it is proper as to the other joint tortfeasor as well. Consequently, because venue was proper in [Bibb] County as to [the John Doe defendant], it was likewise proper as to [Carpenter] -” Accordingly, the trial court correctly denied Carpenter’s motion to transfer venue.

Decided June 19, 2017

Bullard & Wangerin, Daniel Bullard IV, Erin S. Corbett, for appellant.

Cigelske Law Firm, Bryan N. Cigelske, for appellees.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       See OCGA § 33-7-11 (d) (1).

       See Ga. Const, of 1983, Art. VI, Sec. II, Par. IV.

       Id.

       Ga. Const, of 1983, Art. VI, Sec. II, Par. VI.

       See Burchfield v. West Metro Glass Co., 340 Ga. App. 324, 326 (797 SE2d 225) (2017).

       OCGA § 33-7-11 (d) (1).

       See generally Frank E. Jenkins & Wallace Miller, Georgia Automobile Insurance Law § 36:9 (c) (2016-20Í7ed.).

        See Allstate Ins. Co. v. Duncan, 218 Ga.App. 552, 553-554 (2) (462 SE2d 638) (1995); State Farm Mut. Ins. Co. v. Kuharik, 179 Ga.App. 568, 569 (1) (347 SE2d 281) (1986) (“If the insurer, even after judgment and payment, should discover the identity of the tortfeasor, it is of course subrogated to the plaintiff’s rights, but the plaintiff has in no meaningful sense either served or obtained a judgment against the tortfeasor by his John Doe action.”) (punctuation omitted).

       (Citations and punctuation omitted.) City of Atlanta v. City of College Park, 292 Ga. 741, 744 (741 SE2d 147) (2013).

       See, e.g., Banks v. City of Hampton, 280 Ga. App. 432, 434 (634 SE2d 192) (2006) (concluding that insolvent estate was not a nominal party, so venue was proper in the home county of the administrator of a deceased joint tortfeasor). Carpenter’s reliance on Bell v. McDonald, 117 Ga.App. 570 (161 SE2d 432) (1968), is not persuasive here. In Bell, “the plaintiff and administrator of the subject estate were related by marriage, and [the case] apparently involved collusion between the plaintiff and administrator prior to the litigation in having letters of administration granted so that the insolvent estate could be added as a defendant for establishing venue.” Banks, 280 Ga.App. at 434. There is no evidence of collusion here. See also Hankook Tire Co. Ltd. v. White, 335 Ga. App. 453, 454 (781 SE2d 399) (2016) (“[T]he only exception to [the rule that a consent judgment against a tortfeasor preserves venue as to a nonresident joint tortfeasor] applies when the nonresident defendant can prove collusion.”).

       (Punctuation omitted.) Burchfield, 340 Ga. App. at 326.


text:
    A17A0525, A17A0847.
    GORDON et al. v. DENNIS; and vice versa.
    (802 SE2d 77)
   McFADDEN, Presiding Judge.

These related appeals concern Tracy E. Dennis’s dental malpractice action against Chanda M. Gordon, DDS, and Pain Away Dentistry, LLC. After a jury trial, the trial court entered judgment on a jury verdict in favor of the defendants, and the trial court denied Dennis’s motion for new trial. Dennis appeals from that ruling in Case No. A17A0847. Gordon and Pain Away Dentistry filed a motion in the trial court to dismiss Dennis’s appeal, and the trial court denied their motion. Gordon and Pain Away Dentistry appeal from that ruling in Case No. A17A0525. Because the trial court denied the motion to dismiss the appeal without making the necessary findings of fact, we vacate the order in Case No. A17A0525 and remand that case for further proceedings consistent with this opinion. Consequently, we dismiss without prejudice the appeal in Case No. A17A0847.

1. Case No. Al 7A0525 Denial of motion to dismiss appeal.

On March 16, 2016, Dennis filed a timely notice of appeal. As the appellant, Dennis had the responsibility to assure that the appellate record was timely prepared and transmitted to this court. See Long v. City of Midway, 251 Ga. 364 (306 SE2d 639) (1983). As to most of the record, that simply entailed timely paying the clerk’s bill for the cost of preparing it. See OCGA § 5-6-41 (c); Long, supra. But as to the transcript, that duty entailed contacting the court reporter, making the necessary arrangements to have the transcript prepared and filed with the trial court, and securing an extension from the trial court if the court reporter would not be able to complete the transcript within the statutory 30-day deadline. See OCGA § 5-6-42 (an appellant shall cause the transcript “to be filed within 30 days after filing the notice of appeal. . . unless the time is extended as provided in Code Section 5-6-39”); Durden v. Griffin, 270 Ga. 293, 294 (1) (509 SE2d 54) (1998) (finding appellants did not meet their obligation under OCGA § 5-6-42 of causing the transcript to be prepared, where they did not timely order a transcript or make financial arrangements with the court reporter); Long, supra (“The preparation of the transcript of evidence and proceedings, as opposed to the record, is the responsibility of the appellant or, if he desires inclusion of material omitted by appellant, the appellee.”) (citations omitted).

On May 9, 2016, Gordon and Pain Away Dentistry filed their motion to dismiss the appeal. They argued that the trial court should dismiss the appeal because Dennis had unreasonably and inexcusably caused a delay in the filing of the transcript from the October 2015 trial. They noted in their motion that Dennis had not timely sought an extension to file the transcript. In her responsive brief, Dennis described her efforts to obtain a transcript and asked for a 60-day extension to file the transcript.

The trial court held a hearing on the motion to dismiss on August 23, 2016, at which all of the parties presented arguments for and against dismissal and Dennis again asked for an extension. At the end of the hearing, the trial court took the issue under advisement. Subsequently, the trial court entered an order that stated, in its entirety:

The above-styled case is before the Court on Defendants’ Motion to Dismiss Appeal. After considering the entire record in this case, the Court hereby denies Defendants’ Motion. The Court further orders that Plaintiff’s Motion for an extension of time to file transcript is granted. The Plaintiff has until September 30, 2016 to file the transcript.

(Emphasis in original.) (The transcript has since been filed and is part of the appellate record in Case No. A17A0847.)

Gordon and Pain Away Dentistry appeal from this ruling, arguing among other things that this summary order is deficient as a matter of law because it does not contain the necessary factual findings. We agree. Under OCGA § 5-6-48 (c), “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” In making this decision, the trial court must

determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then . . . exercise discretion in deciding whether to dismiss the appeal. Although we review the trial court’s decision for an abuse of discretion, the trial court must make findings on these issues before we may determine whether its discretion was abused.

Postell v. Alfa Ins. Corp., 327 Ga. App. 194, 195 (757 SE2d 661) (2014) (citations and punctuation omitted). Here, the trial court did not make findings on these issues. Instead, the trial court “summarily dismissed the notice of appeal.” Id. at 196. Compare Callaway v. Garner, 340 Ga. App. 176, 180-181 (1) (796 SE2d 906) (2017) (finding that trial court made sufficient findings of fact to demonstrate that it considered the relevant statutory factors, although it did not use the statutory words).

Despite enumerating this failure as error and stating in their brief that the trial court’s order “must be reversed and remanded with instruction,” Gordon and Pain Away Dentistry argue that in the interest of judicial economy we should nevertheless decide the merits of the trial court’s denial of their motion to dismiss. For her part, Dennis also urges us to decide the merits of that denial in this appeal. We cannot do so. The trial court’s “[fjailure to make [the necessary] findings mandates that we vacate the order dismissing the appeal and remand the case with the direction that findings of fact be entered on these issues.” Postell, supra at 195 (citations omitted; emphasis supplied). Accord Temple v. Hillegass, 340 Ga. App. 189, 190 (796 SE2d 899) (2017); Rogers v. Norris, 262 Ga. App. 857-858 (1) (586 SE2d 747) (2003). Simply put, the trial court, in her summary order, “did not make the findings of fact necessary to vest [her] with discretion to dismiss the appeal. Because the trial court had no discretion to dismiss the appeal, we vacate the dismissal order and remand the case for further action in accord with this opinion.” Posted, supra at 196 (citations and punctuation omitted).

2. Case No. Al 7A0847 Denial of motion for new trial.

In view of our holding in Case No. [A17A0525], the appeal in Case No. [A17A0847] is premature and must be dismissed. If on remand of Case No. [A17A0525] the trial court [again] determines that the appeal should be allowed, [Dennis] shall have 30 days to appeal the issues raised in Case No. [A17A0847],

Decided June 19, 2017.

Hall Booth Smith, John E. Hall, Jr., Heather S. Ware, Nathan A. Gaffney, David J. Younker, for Gordon et al.

Tiffany C. Sellers, for Dennis.

Grant v. Kooby, 310 Ga.App. 483, 487 (713 SE2d 685) (2011) (citations omitted).

Judgment vacated and case remanded in Case No. Al 7A0525. Appeal dismissed in Case No. A17A0847.

Branch and Bethel, JJ., concur.


text:
    A17A0535.
    CHURCHILL FINANCIAL MANAGEMENT CORPORATION v. CLEARNEXUS, INC.
    (802 SE2d 85)
   DOYLE, Chief Judge.

This appeal arises from the trial court’s confirmation of an arbitration award to ClearNexus, Inc. (“ClearNexus”), in the amount of $255,021 against Churchill Financial Management Corporation (“Churchill”) based on Churchill’s alleged termination of a service contract with ClearNexus without proper notice. Churchill appeals, arguing that the trial court erred by finding that (1) Churchill waived sovereign immunity via the arbitration clause in the contract between the parties; (2) Churchill waived sovereign immunity by failing to file with the arbitrator a motion to vacate or modify the award; and (3) Churchill could not assert the sovereign immunity of the Guidi-ville Band of the Porno Indians under which Churchill is incorporated. For the reasons that follow, we vacate the order confirming the arbitration award and remand the case for further proceedings consistent with this opinion.

Our review of the issue of sovereign immunity, which is a question of law, is de novo. And although the bar for granting relief from an award of arbitration is high, the issue of whether the arbitrator lacked jurisdiction on the basis that the arbitration is barred by the doctrine of tribal sovereign immunity is an issue for which relief can be granted.

The record reveals that the Guidiville Rancheria of California is a federally recognized tribal entity (“the Tribe”). In 2013, Churchill, which is a secured consumer lending entity chartered by the tribe, entered into a service contract with ClearNexus in which ClearNexus would provide call center services for Churchill’s lending operation. Churchill’s corporate charter states that Churchill “is a legal entity wholly owned by the Tribe, but distinct and separate from the Tribe.” The articles of incorporation also state that “[n]othing in this Charter of Incorporation shall be deemed to waive, or to permit the Corporation to waive, the sovereign immunity of the Tribe.” The articles further provide:

Subject to applicable federal law, [Churchill] is authorized and empowered to engage in, carry on and conduct any lawful business, including, but without limiting the broad authorization of the foregoing, the following:
A. To sue in its corporate name and to permit suit against itself in its corporate name in the Guidiville Tribal Court or in other courts of competent jurisdiction, notwithstanding the privileges and immunities the Corporation otherwise enjoys by virtue of its status; provided, that [Churchill] may only exercise this power to waive the defense of sovereign immunity from suit by written resolution of the Board of Directors and the Guidiville Tribal Council.
C. Nothing in this Charter and no action taken by [Churchill] pursuant to this Charter shall be construed as a waiver of the sovereign immunity conferred upon [Churchill] by the Tribe unless the Board of Directors by Board Resolution expressly waives said immunity on a case by case basis.

The articles contained a limited waiver of sovereign immunity, which required Tribal approval:

A. Notwithstanding any other provision of law, [Churchill] is authorized to waive sovereign immunity from suit of [Churchill], the Directors, officers, employees[,] or agents for any particular agreement matter or transaction, on a case by case basis, as may be entered into to further the purposes of [Churchill]. Such resolution shall require the approval of the Tribal Council before being valid.[ \
B. Any waiver of immunity authorized by paragraph A of this Article shall be in the form of a resolution adopted by the Board of Directors. The resolution shall identify the parties for whose benefit the waiver is granted, the transaction or transactions and the claims or classes of claims for which the waiver is granted, the property of [Churchill] which may be subject to execution to satisfy any judgment which may be entered regarding the claim or claims, and shall identify the court or courts in which suit against [Churchill], its Directors, officers, employees or agents may be brought.
C. Any waiver of immunity shall be limited to the assets and/or income of [Churchill], and the acts or omissions of [Churchill], its Directors, officers, employees or agents shall not create any liability, obligation or indebtedness either of the Tribe or payable out of assets, revenues or income of the Tribe.

In the service agreement between ClearNexus and Churchill, the following provision appeared:

11. Arbitration. All claims, controversies [,] and disputes (other than a claim for equitable relief) between [ClearNexus] and Client arising out of or in connection with this Agreement or the transactions and business contemplated thereby, shall be submitted to final and binding arbitration, as the exclusive dispute resolution mechanism. All arbitration proceedings shall be held in Atlanta, Georgia, unless [Clear-Nexus] and Client agree in writing to another location. Issuance of an arbitration demand shall suspend any judicial or administrative proceedings instituted in connection therewith (except for equitable remedies), for the duration of the arbitration proceedings. Arbitration shall be governed by the commercial rules of the American Arbitration Association (the “AAA”). Arbitration shall be conducted by one arbitrator who shall be chosen by the AAA within five (5) days of receipt of the arbitration demand, unless the Parties sooner agree upon an arbitrator. The arbitrator may award attorney[ ] fees and costs to the prevailing party. . . . [ClearNexus] and Client hereby consent to the enforcement of any arbitration award rendered pursuant to this Section in the courts of competent jurisdiction of each state of the United States of America or elsewhere where Client or [ClearNexus] have offices or significant assets. All arbitration hearings shall be conducted in English, and any monetary award of the arbitrator shall be granted in US Dollars.

After a business dispute arose between the parties, ClearNexus filed a claim against Churchill with the American Arbitration Association, and Churchill filed a motion to dismiss the claim based on its immunity from suit as a tribal sovereign. The arbitrator denied Churchill’s motion to dismiss, finding that by signing the service agreement with its arbitration clause, Churchill had waived the protections of tribal sovereign immunity. The arbitrator entered an award to ClearNexus, but Churchill did not file an application to vacate the arbitration award. Within a year of the arbitrator’s decision, ClearNexus filed an application to confirm the award in the trial court. Churchill objected to the confirmation, arguing that the arbitrator’s award was void because Churchill was immune from suit on the basis of tribal sovereign immunity

The superior court confirmed the award, finding that Churchill failed to timely challenge the arbitrator’s award within three months. The court further determined that Churchill was authorized by the Tribe to enter into contracts, and by doing so in this instance, waived sovereign immunity for the purposes of this contract. Thus, the superior court confirmed the arbitration award.

1. As an initial matter, Churchill argues that the superior court erred by finding that it waived sovereign immunity by failing to file with the arbitrator a motion to vacate or modify the award under OCGA § 9-9-13 or § 9-9-14.

To the extent that the superior court’s order was decided partially on this basis, the superior court erred. ClearNexus has pointed to no State authority supporting the proposition that an entity is prohibited from raising the issue of tribal sovereign immunity as a defense to a petition to confirm an arbitration award. A dearth of case law exists on the issue of tribal sovereign immunity, but, for instance, when addressing State sovereign immunity “the general rule is that in the absence of express statutory or constitutional authorization, neither counsel for the [S]tate nor any of its agencies may, by affirmative action or by failure to plead, waive the defense of governmental immunity.” Moreover, as the United States Supreme Court has explained,

the immunity possessed by Indian tribes is not coextensive with that of the States. [For instance,] state sovereign immunity [diverges] from tribal sovereign immunity, as tribes were not at the Constitutional Convention. They were thus not parties to the mutuality of concession that makes the States’ surrender of immunity from suit by sister States plausible. So tribal immunity is a matter of federal law and is not subject to diminution by the States.

Accordingly, we decline to hold that a party is required to first file an application to vacate an arbitration award under OCGA § 9-9-13 or § 9-9-14 in order to argue the defense of tribal sovereign immunity to the confirmation of an arbitration award.

2. Next, Churchill argues that the trial court erred by finding that it could not assert the tribal sovereign immunity of the Tribe under which Churchill is incorporated, or alternatively, Churchill waived any tribal sovereign immunity by signing the agreement with the included arbitration clause.

(a) Generally speaking,

[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. [Thus, a]n Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.

In C & L Enterprises, the United States Supreme Court held that a tribe may waive immunity from suit by agreeing to arbitrate disputes relating to a contract as long as the agreement is “clear.” Thus, if the agreement in this case had been made between the Tribe and Clear - Nexus, then the arbitration clause would have effectuated a clear waiver of tribal sovereign immunity. Nevertheless, Churchill is not the Tribe, but a corporate entity chartered under tribal law.

(b) Most courts that have addressed this issue have determined that tribal sovereign immunity extends to entities known as chartered tribal corporations when they are “arms of the tribe.” Whether a corporation is an “arm of the tribe” protected by tribal sovereign immunity generally is determined based on a consideration of tribal involvement in the creation and control of the entity, intent to clothe the entity with immunity, and whether the entity serves tribal sovereign interests such as economic development.

Although neither the arbitrator nor the superior court engaged in an analysis based on any factors to determine whether Churchill is an arm of the Tribe, ClearNexus has conceded that Churchill is an arm of the Tribe. Additionally, Churchill’s articles of incorporation stated that “[t]he Corporation shall be wholly owned by the Tribe for the benefit of the Tribe and its members” and is clothed with the immunity of the Tribe. Therefore, we need not adopt a particular approach to determine this issue at this time, and we need not remand in order for the superior court to make this determination.

(c) ClearNexus argues, and both the arbitrator and the superior court found, that regardless of whether Churchill was an arm of the Tribe and protected by tribal sovereign immunity, it has waived that immunity by signing the service agreement containing the arbitration clause, similar to the determination in C & L Enterprises. Churchill argues instead that it is required to follow a specific procedure in order to waive tribal sovereign immunity under its charter, and the necessary procedure was not followed. Based on persuasive authority of other jurisdictions, we agree. In Memphis Biofuels, the United States Court of Appeals for the Sixth Circuit determined that although a wholly owned tribal corporation could have waived tribal sovereign immunity, a clear contract provision between the parties did not act as a waiver because the corporation did not have the power to waive sovereign immunity without complying with the tribal approval requirement contained in its corporate charter.

Finally, to the extent that the superior court’s decision was based on Churchill’s implied waiver by participating in the arbitration proceeding, the record shows that the participation was minimal, involving only the issue of tribal sovereign immunity, and thus insufficient to result in waiver. Accordingly, the trial court erred by confirming the arbitration award and by finding that the arbitrator had jurisdiction over the proceeding on the basis that Churchill had waived tribal sovereign immunity. Thus, we vacate the superior court order confirming the award and remand the case for entry of an order vacating the arbitration award for lack of jurisdiction based on tribal sovereign immunity.

Decided June 19, 2017.

Huestis Law, Robert S. Huestis, for appellant.

J. David Haskin, for appellee.

“This result may seem unfair, but that is the reality of [tribal] sovereign immunity[.]”

Judgment vacated and case remanded.

Miller, P. J., and Reese, J., concur.

       See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 596 (2) (755 SE2d 184) (2014).

       See OCGA § 9-9-13 (b). Cf. Fulton County v. Lord, 323 Ga. App. 384, 388, 389 (1) (746 SE2d 188) (2013).

       See Indian Entities Recognized & Eligible To Receive Services From the United States Bureau of Indian Affairs, 81 FR 5019, 5021 (2016).

       (Emphasis supplied.)

       (Punctuation omitted.) Kelleher v. State of Ga., 187 Ga. App. 64, 65 (1) (369 SE2d 341) (1998).

       (Citations and punctuation omitted.) Kiowa Tribe of Oklahoma v. Mfg. Technologies, 523 U. S. 751, 755-756 (II) (118 SCt 1700, 140 LE2d 981) (1998). See also Amerind Risk Mgmt. Corp. v. Malaterre, 633 F3d 680, 686 (II) (8th Cir. 2011) (“The plaintiffs assert that Amerind waived its sovereign immunity by failing to raise the issue before the district court in [Amerind Risk Mgmt. Corp. v. Malaterre, 585 FSupp.2d 1121 (D.N.D. 2008)]. However, our court has held that [tribal] sovereign immunity is a threshold jurisdictional matter and a jurisdictional prerequisite. Therefore, tribal sovereign immunity may be raised for the first time on appeal, or raised sua sponte by the court.”) (citations and punctuation omitted; emphasis in original).

       Compare Ralston v. City of Dahlonega, 236 Ga. App. 386, 390-391 (6) (512 SE2d 300) (1999) (holding that the parties’ failure to argue governmental immunity before the arbitrator and superior court at the confirmation hearing effectively waived their claims of governmental immunity on appeal).

       For clarity, we address the issues raised in two of Churchill’s enumerations of error together.

       (Citation and punctuation omitted.) C & L Enterprises v. Citizen Band Potawatomi Indian Tibe of Oklahoma, 532 U. S. 411, 416 (I) (121 SCt 1589, 149 LE2d 623) (2001). See also
        Kiowa Tribe, 523 U. S. at 751 (providing an historical overview of tribal sovereign immunity); Rosebud Sioux Tribe v. Val-U Constr. Co., 50 F3d 560, 562-563 (8th Cir. 1995).

       532 U. S. at 411.

       Id. at 418-419 (II).

       See id.

       See, e.g., Alabama v. PCI Gaming Auth., 801 F3d 1278, 1287-1288 (IV) (A) (11th Cir. 2015) (holding that a wholly owned gaming authority that operates tribal casinos was an arm of the tribe protected by sovereign immunity); Amerind Risk Mgmt. Corp., 633 F3d at 688 (II) (holding that a self-insurance risk pool for multiple tribes was protected by tribal sovereign immunity); Breakthrough Mgmt. Group v. Chukchansi Gold Casino & Resort, 629 F3d 1173, 1191-1195 (I) (B) (2) (b) (10th Cir. 2010) (holding that a tribal casino and economic development authority were protected by tribal sovereign immunity); Memphis Biofuels v. Chickasaw Nation Indus., 585 F3d 917, 920-921 (II) (A) (1) (6th Cir. 2009) (holding that a tribal corporation chartered under former 25 USC § 477 was an arm of the tribe); Allen v. Gold Country Casino, 464 F3d 1044, 1046-1047 (II) (A) (9th Cir. 2006) (casino acted as arm of the tribe); Taylor v. Ala. Intertribal Council Title IV J.T.P.A., 261 F3d 1032, 1037 (11th Cir. 2001) (holding that an inter-tribal council was protected by tribal sovereign immunity); Hagen v. Sisseton-Wahpeton Community College, 205 F3d 1040, 1043-1044 (8th Cir. 2000) (holding that a tribal community college was an arm of the tribe and thus protected by tribal sovereign immunity). See also Inyo County v. Paiute-Shoshone Indians, 538 U. S. 701, 705, n. 1 (123 SCt 1887, 155 LE2d 933) (2003) (accepting United States’ undisputed assertion that tribal gaming corporation was an arm of the tribe for sovereign immunity purposes). But see Somerlott v. Cherokee Nation Distribs., 686 F3d 1144, 1149-1150 (10th Cir. 2012) (holding that a tribal entity incorporated under state law is not immune from an employment discrimination suit, but plaintiff failed to preserve this argument on appeal); Runyon v. Assn. of Village Council Presidents, 84 P3d 437, 441 (Alaska 2004) (determining that corporation created by tribal villages was not arm of the several participating tribes such that tribal sovereign immunity applied).

       See, e.g., State of Colorado v. Cash Advance, 205 P3d 389, 403-406 (VIII) (Col. App. 2008) (collecting cases and describing various tests to determine status of corporation).

       Compare id. at 397 (II).

       532 U. S. at 416 (I).

       585 F3d at 921-922 (II) (A) (2).

       See id. See also Buchwald Capital Advisors v. Papas, 559 BR 842 (Case No. 08-53104; E.D. Mich. 2016); Amerind Risk Mgmt. Corp., 633 F3d at 687-688 (II). Cf. Sanderlin v. Seminole Tribe of Fla., 243 F3d 1282, 1287-1289 (III) (A) (11th Cir. 2001) (holdingthat an agent of atribe cannot waive tribal sovereign immunity regardless of the existence of a contract containing waiver on behalf of tribe if the agent failed to receive approval as required by tribe in order to waive immunity).

       Compare with Oglala Sioux Tribe v. C&W Enterprises, 542 F3d 224, 233 (II) (B) (5) (8th Cir. 2008) (holding that the tribe fully participated in arbitration).

        Memphis Biofuels, 585 F3d at 922 (II) (A) (3), quoting Kiowa Tribe, 523 U. S. at 758 (II).