author: McMlLLIAN, Judge.

text:
    A14A1667.
    THE STATE v. LEXIE.
    (771 SE2d 97)
   McMlLLIAN, Judge.

After a jury convicted Raynard Lexie of aggravated sodomy, armed robbery, kidnapping, burglary, and three counts of aggravated assault, he was sentenced to a mandatory life term, with 25 years to serve. However, the trial court subsequently granted Lexie’s motion for new trial on the ground that he received ineffective assistance of counsel during the plea process. The State now appeals that ruling, and we affirm for the reasons set forth below.

It is well settled that the analysis of whether a defendant has received constitutionally ineffective assistance of counsel presents a mixed question of law and fact. Hulett v. State, 296 Ga. 49, 60 (5) (766 SE2d 1) (2014). See also Barrett v. State, 292 Ga. 160, 167 (3) (733 SE2d 304) (2012). And

[w]hen reviewing a trial court’s decision to grant a motion for new trial based on ineffective assistance of counsel, we defer to the trial court’s findings of fact unless clearly erroneous, but owe no such deference to its conclusions of law which we apply independently to the facts.

State v. Sims, 296 Ga. 465, 468-469 (2) (769 SE2d 62) (2015).

Lexie was arrested on September 21, 2012, but he consistently maintained that he was innocent and that the victim had wrongfully identified him. On or about November 7, 2012, an assistant public defender (“Counsel”) entered an appearance on his behalf, and that representation continued throughout the pre-trial proceedings and at trial. On March 14, 2013, at 9:37 a.m., the State e-mailed Counsel a plea offer for credit for time served and twelve years of first offender probation, in exchange for Lexie’s plea to two counts of aggravated assault, with the State agreeing to nolle prosse the remaining charges. Without contacting Lexie about the offer, Counsel responded to that e-mail five minutes later, indicating that there would be no plea in the case. Although Counsel did not relay the specific offer to Lexie, he testified that Lexie and he previously had discussed the issue and Counsel had advised against accepting a plea offer. Lexie had indicated in that conversation that he was going to follow his counsel’s advice.

On April 1, 2013, the trial court held a hearing to put the plea offer on the record. At the hearing, the State announced that it had offered Lexie a twelve-year sentence, with credit for time served and the balance to be served on probation in exchange for a plea on two counts of aggravated assault with a deadly weapon. Lexie told the trial court that he had not made a decision about whether to take the offer, and the court allowed Counsel and Lexie to confer off the record. During that conference, Lexie told Counsel he wanted to accept the offer, but Counsel talked him out of it because he believed that Lexie was innocent. Counsel told Lexie that they had a very good chance to win and to get the matter expunged from his record. Lexie rejected the plea offer based solely on Counsel’s advice, and Counsel said that Lexie made that decision only after Counsel “twisted his arm.”

Subsequently, Counsel received a letter from Lexie, dated the same day as the hearing, stating that he wanted to accept the State’s offer if it was still open. Counsel once again strongly advised against it, and although Lexie continued to resist this advice, Counsel “pressured” Lexie to reject the offer. He told Lexie that he had the best case he had ever seen and that no reasonable jury would convict him. When Lexie asked Counsel how certain he was, Counsel said that if he lost the case, he would turn in his bar card. Following the guilty verdict and before sentencing, Counsel removed himself from Lexie’s case.

In determining whether Lexie received ineffective assistance of counsel, we apply the two-pronged test set out in Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984). See also Missouri v. Frye,_U.S._(II) (A) (132 SCt 1399, 182 LE2d 379) (2012). To prevail on his claim of ineffective assistance of counsel in the context of a plea bargain, Lexie “was ... required to show that his counsel’s representation fell below an objective standard of reasonableness and that the outcome of the plea process would have been different with competent advice. Lafler v. Cooper,_U.S._(II) (A), (B) (132 SCt 1376, 182 LE2d 398) (2012).” (Punctuation omitted.) Cruz v. State, 315 Ga. App. 843, 845 (1) (729 SE2d 9) (2012).

Accordingly, we must first determine whether counsel’s representation fell below an objective standard of reasonableness. “In regard to the offer of a plea bargain, objective professional standards require that a defendant be told that such an offer has been made and to be advised of the consequences of the choices confronting the defendant.” (Citation omitted.) Dulcio v. State, 292 Ga. 645, 652 (3) (f) (740 SE2d 574) (2013). See also Lloyd v. State, 258 Ga. 645, 648 (2) (b) (373 SE2d 1) (1988). Trial counsel can be found to have rendered less than reasonably professional assistance if counsel has not informed his client of a plea offer and advised him of the relative consequences of accepting the offer versus going to trial. Brown v. State, 291 Ga. 892, 898 (4) (734 SE2d 23) (2012); Dulcio, 292 Ga. at 652 (3) (f). As the Supreme Court of Georgia has explained, “[ajlthough the decision whether to accept a proposed plea agreement must be made by the accused, the accused should have the full and careful advice of counsel.” Cammer v. Walker, 290 Ga. 251, 254 (1), 255 (2) (719 SE2d 437) (2011) (citing ABA Standards for Criminal Justice Prosecution and Defense Function, Standard 4-5.2 cmt. and noting that “American Bar Association . . . standards constitute guides to determining what is reasonable [professional conduct].”) (citation and punctuation omitted).

Here, the trial court found that it was “difficult, if not impossible, ... to trust that any sensible discussion occurred concerning the risk of going to trial in this case and the noteworthy differences in possible sentences that could be imposed following a guilty plea and following a conviction at trial.” Additionally, the trial court found that “[t]he evidence shows that Counsel believed he could not lose the case and made meretricious promises concerning the outcome.” The trial court further found that given Counsel’s assessment of the State’s case, Counsel could not have reasonably advised his client concerning the risk of going to trial in order to allow Lexie to make an informed decision about the plea offer. Nor did it “appear that Counsel was willing or interested in abiding by his client’s decisions concerning the objectives of representation.” The trial court based these findings not only on the evidence that Lexie rejected a first offender probationary sentence to risk a potential mandatory life sentence, but also on the evidence that “Counsel actively lobbied his client to reject the plea knowing his client wanted to accept the offer. He all but guaranteed an outcome for his client that he knew, or should have known, he could not promise.” Based on these findings, the trial court accordingly concluded that “Counsel’s actions were not in the best interest of his client, but rather based primarily on his individual desire to win.”

From our review of the record, we cannot say that the trial court’s factual findings were clear error, and thus we must defer to them. Sims, 296 Ga. at 468 (2). And based on these findings, we agree with the trial court that Counsel failed to reasonably advise Lexie of the consequences of the choices confronting him and that Counsel’s performance during the plea process was deficient.

With regard to the prejudice prong of the Strickland test, the United States Supreme Court has held that in order to show the requisite prejudice in a case such as this,

where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.

Frye,_U.S. at_(II) (C). See also Lloyd, 258 Ga. at 648-649 (2) (b). Moreover, in view of the “self-serving nature of a defendant’s post-conviction testimony regarding his intent with respect to a plea offer, [this Court has] required some further ‘objective evidence’ that defendant would have accepted a plea offer.” (Citation and punctuation omitted.) Biggins v. State, 322 Ga. App. 286, 290 (3) (a) (744 SE2d 811) (2013).

Here, both Lexie and Counsel testified that Lexie wanted to accept the State’s offer but was pressured by Counsel to reject it. Additionally, the evidence shows that on the date of the hearing, Lexie wrote a letter to Counsel once again stating he wanted to accept the offer if it was still open, which provides objective evidence of Lexie’s intention. We find this evidence sufficient to demonstrate that Lexie would have accepted the offer had he been afforded effective assistance of counsel.

Decided March 20, 2015

Meg E. Heap, District Attorney, Jennifer P. Guyer, Assistant District Attorney, for appellant.

Richard M. Darden, for appellee.

Additionally, the trial court found “no reason evident from the record that the State’s offer in this case would not [have] been acceptable to the Court” and “no indication that the State would have not adhered to the agreement.” We find no clear error in these findings. We cannot second guess the trial court’s findings regarding its own consideration of the plea offer, and the record lacks any evidence to indicate the State would not have gone through with its offer. To the contrary, while Lexie and his counsel were conferring during the plea hearing, the trial court asked the State whether its offer was “open for a set period of time or does it expire?” The prosecutor replied that it would “be willing to leave it open for a few days for him to talk about it,” supporting an inference that the State intended to follow through on its offer. Thus, we agree with the trial court that Lexie provided sufficient evidence to support his argument that he was prejudiced by his counsel’s deficient performance during the plea process.

Accordingly, we affirm the order granting Lexie’s motion for new trial on this ground.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       A life sentence is one of two options for sentencing mandated by OCGA § 16-6-2 (b) (2), which provides that a person convicted of aggravated sodomy “shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life.”

       The trial court found, however, that Lexie’s counsel did not provide ineffective assistance at trial, and the court denied Lexie’s motion for new trial on that and the other grounds asserted. Lexie did not file a cross-appeal from the trial court’s order, and thus those issues are not before us.

       The physical evidence collected from the scene was never matched to Lexie.

       The State made a second plea offer while the jury was deliberating with increased jail time, hut which would have given Lexie the chance at parole. Lexie rejected that offer as well, based on Counsel’s advice, before the jury returned with the guilty verdict.

       “[C]riminal defendants require effective counsel during plea negotiations. Anything less might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.” (Citations and punctuation omitted.) Frye,_U.S. at_(II) (A).

       Although the trial court informed Lexie at the plea hearing that the maximum sentence that could he imposed by the court was life plus 120 years, we find no indication in the record that Lexie was ever informed of the mandatory sentencing provisions of OCGA § 16-6-2 (b) (2).

       Although the appellate record does not contain a copy of this letter, the transcript reflects that the prosecutor reviewed the letter at the hearing and offered no objection to testimony regarding its contents.

       The State argues that this statement made its offer conditional on interest from Lexie in the offer, and it thus expired when Lexie rejected the offer. Even accepting the State’s argument, no evidence exists that the State would not have honored the offer if Lexie had accepted it.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A1690.
    CITY OF COLLEGE PARK v. SEKISUI SPR AMERICAS, LLC.
    (771 SE2d 101)
   Miller, Judge.

Sekisui SPR Americas, LLC, a subcontractor that worked on a sewer project for the City of College Park (“the City”), sued the City when the general contractor failed to pay Sekisui for work performed, alleging that the City was liable because it had failed to ensure the contractor obtained a payment bond in violation of OCGA § 36-91-90. In addition to raising a cause of action under OCGA § 36-91-90 et seq., Sekisui also raised claims of quantum meruit, unjust enrichment, implied obligation to pay, and sought attorney fees. The parties filed cross-motions for summary judgment, and the trial court granted Sekisui’s motion and denied the City’s motion. The City appeals, contending that the trial court erred in denying its motion to dismiss the case for failure to comply with the ante litem notice requirements for suits against municipalities. The City also contends that the trial court erred in granting summary judgment to Sekisui because the undisputed evidence showed that Sekisui was not entitled to relief for a violation of OCGA § 36-91-90, Sekisui was precluded from pursuing other forms of relief, and questions of fact remained as to damages. Since Sekisui does not have a viable claim against the City, we reverse.

Summary judgment is appropriate when the moving party demonstrates that no genuine issues of material fact remain and that the facts, construed favorably to the non-moving party, demand judgment as a matter of law. On appeal, we review the trial court’s grant of summary judgment de novo.

(Footnote omitted.) Vaillant v. City of Atlanta, 267 Ga. App. 294 (599 SE2d 261) (2004).

So viewed, the evidence shows that during the summer of 2005, the City began discussing the need for public works construction on sewer lines in the city, including the repair of the main sewer line on Embassy Drive that had apparently collapsed and needed emergency repair. Southern Products submitted a quote to install a sewer bypass near the creek adjacent to the intersection of Riverdale Road and Embassy Drive. On August 5, 2005, the City approved the quote and directed Southern Products to begin as soon as possible.

On August 8, Southern Products sent a letter requesting that the City use its existing Clayton County Water Authority Annual Contract (the “CCWA Contract”) in order to replace approximately 1,049 linear feet of the ten-inch sewer pipe near Embassy Drive (the “Embassy Drive Project”). Southern Products estimated that this project would cost $204,481.50. In the August 8 letter, Southern Products offered to absorb some of the costs associated with maintaining the bypass system during any delay with the start of the sewer line replacement.

The City sought permission from Clayton County to use the CCWA Contract to complete the Embassy Drive Project. Clayton County authorized the City to use the CCWA Contract to establish the terms, unit pricing, and conditions of work in reaching an agreement with Southern Products, but notified the City that the CCWA Contract would not be extended to cover the Embassy Drive Project.

Thereafter, the City contracted with Southern Products to complete the Embassy Drive Project, notifying Southern Products that it was to proceed pursuant to the terms of the CCWA Contract. The CCWA Contract pertinently provided that a “Payment and Performance bond will be required only in the event that a job is assigned to the contractor that is an amount greater than $100,000.00.” Southern Products did not obtain a payment bond for the Embassy Drive Project.

Southern Products hired Sekisui as a subcontractor to provide all labor, equipment, and materials, as well as general and project administration services, for the Embassy Drive Project. See City of College Park v. Ga. Interlocal Risk Mgmt. Agency, 313 Ga. App. 239, 239-240 (721 SE2d 97) (2011) (“GIRMA”). Sekisui began working on the project in September 2005, and at the end of the month, Sekisui submitted its first invoice to Southern Products, who paid it after receiving payment from the City. Id. at 240. Based on circumstances at the site, the scope of work increased and the cost of the project exceeded the initial estimate. In October and December 2005, Sekisui submitted two additional invoices totaling over $314,000. The City paid Southern Products in full for Sekisui’s work on the Embassy Drive Project, but Southern Products did not pay Sekisui’s last two invoices. See id.

When its attempts to recover on the unpaid invoices were unsuccessful, Sekisui filed suit against Southern Products, which subsequently ceased operations and became insolvent. Sekisui also filed the instant suit against the City, and the trial court granted summary judgment to Sekisui on all counts, with the exception of attorney fees, which the trial court reserved upon conclusion of this appeal.

1. On appeal, the City contends that the trial court erred in denying its motion to dismiss Sekisui’s complaint on the ground that Sekisui failed to give proper ante litem notice under OCGA § 36-33-5. We disagree.

As part of the Georgia Local Government Public Works Construction Law, OCGA § 36-91-1 et seq., a payment bond or other security in lieu of the bond is required for all public works construction contracts with an estimated contract amount greater than $100,000. OCGA § 36-91-90.

If a payment bond or security deposit is not taken in the manner and form required in this article, the corporation or body for which work is done under the contract shall be liable to all subcontractors... furnishing labor, skill, tools, machinery, or materials to the contractor . . . for any loss resulting to them from such failure. . . .

OCGA § 36-91-91.

With regard to ante litem notice, OCGA § 36-33-5 (a) pertinently provides:

No . . . corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in this Code section.

OCGA § 36-33-5 (a). The notice must be written and presented within six months of the event upon which the claim is predicated. OCGA § 36-33-5 (b).

The plain text of the statute makes clear that it applies only to tort claims regarding personal injury or property damage. See City of Statesboro v. Dabbs, 289 Ga. 669, 670 (1) (a) (715 SE2d 73) (2011); Sims v. City of Alpharetta, 207 Ga. App. 411, 412 (1) (428 SE2d 94) (1993). Based on this text, Georgia courts have held that a party is not required to provide ante litem notice for an action arising out of a contract. See Neely v. City of Riverdale, 298 Ga. App. 884, 885-886 (1) (681 SE2d 677) (2009); see also Dabbs, supra, 289 Ga. at 670 (1) (a) (party not required to provide ante litem notice for violations of Open Meetings Act).

In this case, Sekisui claimed that the City violated OCGA § 36-91-91 and sought payment for work performed under a subcontract under theories of unjust enrichment, quantum meruit, and implied obligation to pay. None of these claims are torts regarding personal injury or property damage. See GIRMA, supra, 313 Ga. App. at 245-246 (2) (concluding that Sekisui’s claims arose out of or were connected with its contract with Southern Products). Therefore, Sekisui was not required to comply with the ante litem notice requirements before filing suit, and the trial court did not err in denying the City’s motion to dismiss.

The City relies on Jacks v. City of Atlanta, 284 Ga. App. 200 (644 SE2d 150) (2007), in support of its argument that the ante litem notice requirement is applicable to claims arising under OCGA § 36-91-91. Jacks is disapproved to the extent it holds the ante litem notice requirement under OCGA § 36-33-5 applies to claims arising under OCGA § 36-91-91 because the plain text of OCGA § 36-33-5 is clear that it applies only to tort claims relating to personal injury and property damage. See Dabbs, 289 Ga. at 670 (1) (a).

2. The City contends that the trial court erred in denying its motion for summary judgment and granting Sekisui’s motion because the City was not required to obtain a payment bond since the Embassy Drive Project was necessitated by an emergency. We agree.

The requirement that a municipality obtain a payment bond for public works construction contracts with an estimated cost greater than $100,000 under OCGA § 36-91-90 does not apply to projects that are

. . . necessitated by an emergency; provided, however, that the nature of the emergency shall be described in the minutes of the governing authority. Any contract let by a county pursuant to this subsection shall be ratified, as soon as practicable, on the minutes of the governing authority, and the nature of the emergency shall be described therein.

OCGA § 36-91-22 (e). “Emergency” is defined as “any situation resulting in imminent danger to the public health or safety or the loss of an essential governmental service.” OCGA § 36-91-2 (7).

In this case, the evidence shows that the main sewer line on Embassy Drive had collapsed, and in August 2005 the City authorized Southern Products to install a sewer bypass and approved the Embassy Drive Project to replace approximately 1,000 linear feet of the main sewer line in the area. There is also no dispute that in September 2005, the City held a city council meeting in which it ratified the emergency replacement of the sewer main on Embassy Drive.

Sekisui argues that the City was not entitled to the statutory exception under OCGA § 36-91-22 (e) because its minutes from the city council meeting are insufficient to establish an “emergency” since the City did not describe or otherwise introduce evidence of any imminent danger to public health or safety or loss of an essential government function. Contrary to Sekisui’s arguments, however, the plain text of OCGA § 36-91-22 (e) does not require such specificity or elaboration, nor does the statute require additional evidence. The statute plainly provides that the only requirement is that the nature of the emergency he described in the minutes of the governing authority. The City’s description in the minutes of the “emergency replacement of a 10[-inch] sanitary sewer main on Embassy Drive,” was sufficient to describe the nature of the emergency under OCGA § 36-91-22 (e). See OCGA § 1-3-1 (c) (“substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient[.]”) (emphasis supplied). Therefore, the City was exempt from securing a payment bond underOCGA § 36-91-90. Accordingly, Sekisui’s cause of action under OCGA § 36-91-91 failed, and we need not consider the City’s remaining arguments challenging the viability of this claim.

3. The City contends that Sekisui’s claims for unjust enrichment, quantum meruit, and implied obligation to pay are barred as a matter of law because OCGA § 36-91-91 provided the exclusive remedy by which Sekisui could sue the City. We agree.

Under Georgia law, a materialman or subcontractor may not recover against an owner or general contractor with whom it has no contractual relationship, based on the theory of unjust enrichment or implied contract; rather, it is limited to the statutory remedies provided by Georgia’s lien statute.

(Citations and punctuation omitted.) Hussey, Gay & Bell v. Ga. Ports Authority, 204 Ga. App. 504, 506 (2) (420 SE2d 50) (1992); see also Callahan v. Hall, 302 Ga. App. 886, 888 (691 SE2d 918) (2010) (subcontractor is precluded from pursuing a quantum meruit claim in the absence of a direct contractual relationship). Consequently, in this case, as a subcontractor, Sekisui could not recover against the City under the implied contract theories of unjust enrichment, quantum meruit, or implied obligation to pay. See J. Kinson Cook, Inc. v. Weaver, 252 Ga. App. 868, 871-872 (2) (556 SE2d 831) (2001); Hussey, Gay & Bell, supra, 204 Ga. App. at 506 (2).

Regrettably, the only remedies that would have been available to Sekisui are now foreclosed. Notably, as discussed above, Sekisui could not proceed against the City under OCGA § 36-91-91 because no payment bond was required for the Embassy Drive Project. A subcontractor may pursue a lien against the public works owner on the funds payable to the general contractor when, as here, the legal remedy under OCGA § 36-91-91 is unavailable or inadequate. See McArthur Elec., Inc. v. Cobb County School Dist., 281 Ga. 773, 774-775 (642 SE2d 830) (2007). It is undisputed, however, that the City paid Southern Products for all of Sekisui’s work on the Embassy Drive Project. Therefore, the City does not owe any funds to Southern Products for which Sekisui could pursue a lien. Accordingly, Sekisui failed to establish a claim for relief, and the trial court erred in granting summary judgment to Sekisui and in denying summary judgment to the City.

Decided March 20, 2015

Fincher Denmark Williams & Minnifield, Steven M. Fincher, Winston A. Denmark, Emilia C. Walker, for appellant.

Holland & Knight, Keith M. Wiener, A. André Hendrick, Cody S. Wigington, for appellee.

Judgment reversed.

Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur.

       The City attached several exhibits to its brief that caused the brief to substantially exceed the applicable page limit. See Court of Appeals Rule 24 (f). Sekisui moved to strike the excess pages, and the City responded by moving for permission to exceed the page limit. Since these exhibits appear in the record transmitted by the trial court, Sekisui would suffer no prejudice by consideration of the excess pages. See Court of Appeals Rule 24 (g) (we will not consider documents attached to an appellate brief that are not part of the certified appellate record). Consequently, we grant the City’s motion to exceed the applicable page limit and deny Sekisui’s motion to strike.


author: BARNES, Presiding Judge.

text:
    A14A1713.
    MUNNA v. THE STATE.
    (771 SE2d 106)
   BARNES, Presiding Judge.

Following his bench trial on stipulated facts, Sewdatt Munna was found guilty of two counts of habitual impaired driving, driving under the influence and failure to maintain lane. He now appeals from the denial of his motion for new trial, and contends that the trial court erred in denying his motion to dismiss the indictment on constitutional speedy trial grounds. Munna also maintains that the evidence was insufficient to sustain his conviction for habitual impaired driving. Following our review, we conclude that the evidence was sufficient to support Munna’s conviction, but we vacate the denial of Munna’s speedy trial motion for discharge and acquittal and remand this case with direction.

The record demonstrates that on April 17, 2010, Munna was stopped by an officer with the Loganville Police Department, and ultimately arrested for driving under the influence to the extent he was a less safe driver and failure to maintain a lane. His driver’s license, which the officer confiscated, identified him as Sewdatt Munna, but the police department employee who was downloading his arrest photograph recognized Munna’s uncommon first name. She searched and found files of Munna’s three previous arrests — February 3, 2007, December 11, 2008, and January 7, 2010 —• for DUI, but they were filed under the last name “Mathura.” Based on this information, on June 3, 2010, Munna was arrested when he appeared in court for the April 17, 2010 DUI and charged with habitual impaired driving. During the subsequent search of his person and car incident to Munna’s arrest for habitual impaired driving, police recovered several forms of identification, including two credits cards, one in the “Mathura” name and one in the “Munna” name, and a driver’s license in the ‘Mathura” name. Additionally, an investigator with the Georgia Department of Driver Services testified that on August 20, 2009, “Sewdatt Mathura” had been personally served with notice of his habitual violator status pursuant to OCGA § 40-5-58 (the Drivers’ License Act) and that his driver’s license had been revoked for a minimum of five years. The trial court found him guilty as charged.

1. Munna contends that the evidence was insufficient to sustain his conviction for habitual impaired driving because he possessed a valid driver’s license in the name “Sewdatt Munna.” According to Munna, even if he was a habitual violator with a revoked license, he was permitted to drive under OCGA § 40-5-58 (c) if he was subsequently issued a valid driver’s license, irrespective of whether the license was under a different name. We do not agree.

Except as otherwise provided, “it shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his or her driver’s license has been revoked as provided in [OCGA § 40-5-58 (b)], if such person has not thereafter obtained a valid driver’s license.” OCGA § 40-5-58 (c). At the relevant time, OCGA § 40-5-58 (b) provided pertinently that,

[wjhen the records of the department disclose that any person ... is a habitual violator as defined [by statute], the department shall forthwith notify such person that upon the date of notification such person has been declared by the department to be a habitual violator, and that henceforth it shall be unlawful for such habitual violator to operate a motor vehicle in this state unless otherwise provided in this Code section.

Although Munna asserts that at the time he was arrested he possessed a valid driver’s license and thus the State failed to prove an essential element of habitual violator,

[t] his Court has repeatedly held that the essence of the offense [of driving while a habitual violator] is driving after being notified that one may not do so because, by doing so, one is flouting the law even if one or more of the underlying convictions is voidable or void. The State is required to prove only that the accused was declared [a] habitual violator and operated a vehicle without having obtained a valid driver’s license.

(Citations and punctuation omitted.) Hollis v. State, 234 Ga. App. 269, 270 (1) (505 SE2d 837) (1998). “Valid driver’s license” as provided for in OCGA § 40-5-58 (c) refers to a license “which is in the possession of a former habitual violator whose privilege to operate a motor vehicle in this state has been restored by the Department of Public Safety.” Goblet v. State, 174 Ga. App. 675, 676 (1) (331 SE2d 56) (1985). See Stripling v. State, 279 Ga. App. 856, 857 (1) (632 SE2d 747) (2006) (“The law is clear that possession of a valid license [even] from another state is not a defense to [a] habitual violator charge and creates no presumption that the defendant is authorized to drive in Georgia.”) (emphasis supplied).

Accordingly, although Munna was able to navigate the system to obtain the purportedly “valid” “Munna” license, the evidence demonstrates that he was also known to use the “Mathura” name, and had been notified after his third DUI violation as “Mathura” that he was prohibited from driving as a habitual violator. That he had a presumptively “valid” license in another name was no defense to his habitual violator status. The incontrovertible evidence demonstrated that Munna and Mathura were the same person and, as such, Munna was under notice that he was prohibited from driving as a habitual violator. Further, there is no evidence that the “Mathura” license was restored after being revoked. Under these circumstances, we find the evidence sufficient to sustain his conviction.

2. Munna also contends that the trial court erred in finding that his right to a speedy trial had not been violated under the Sixth Amendment because it improperly weighed the Barker-Doggett factors.

The evidence demonstrates that Munna was arraigned on September 22,2010, and both sides announced ready for trial on January 5, 2011. The record then includes a waiver of jury trial filed on May 13, 2013, and a notice of bench trial filed on October 16, 2013, setting Munna’s trial for October 25, 2013. Thereafter, on October 17, 2013, Munna filed a motion for discharge and acquittal alleging a constitutional speedy trial violation. On October 25, 2013, the trial court conducted a hearing on the motion for discharge and acquittal, followed by Munna’s bench trial on stipulated facts. The record does not evince any reasons for the delay in trying the case, but at the hearing Munna’s trial counsel stated:

He first showed up on the trial calendar in May 9, 2011. His case was not reached. Almost a year later, he appeared on two trial calendars within a month’s time, on April 23, 2012 and May 14, 2012, but again, his case was not reached. Ayear later, on May 13, 2013, his case was called in for trial, and not reached, and . . . [his] bench trial was initially scheduled . . . on August 2, 2013, but was continued ... by consent because [the prosecutor] had a medical issue.

The State did not rebut any of Munna’s factual assertions, but instead argued that, in balancing the Barker factors, Munna’s delay in asserting his right to a speedy trial should be weighed against him and also that Munna had failed to show that he was prejudiced by the delay in the trial. The trial court responded:

After the review of the motion, and the hearing argument in this case, I find that the time delay was presumptively prejudicial^] however, we will go to the balancing tests. I find the delay was not uncommonly long. I also find that [Munna] asserted his right approximately 8 days ago. I also find that there is no prejudice suffered as a result of the delay. Therefore, I am going to deny your motion.

The trial court did not enter an order denying the motion.

In his motion for new trial, Munna maintained as error the general grounds, as well as the trial court’s denial of his motion for discharge and acquittal. In its order denying Munna’s motion for new trial, the trial court did not specifically address the Sixth Amendment challenge, but found that “each error complained of by [Munna] to be without merit.”

Every constitutional speedy trial claim is subject to a two-tiered analysis as set forth in the United States Supreme Court decisions Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (II) (112 SCt 2686, 120 LE2d 520) (1992). As for the first tier of the analysis, it must be determined if the delay in question is presumptively prejudicial. If not, there has been no violation of the constitutional right to a speedy trial and the second tier of analysis is unnecessary. If, however, the delay is determined to be presumptively prejudicial, then the [trial] court must engage the second tier of analysis by applying a four-factor balancing test to the facts of the case. Those four factors include: (1) whether the delay is uncommonly long; (2) reason for delay/whether the government or the defendant is more responsible; (3) defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant. On appeal, the relevant standard of review is whether the trial court abused its discretion.

(Citations omitted.) Rafi v. State, 289 Ga. 716, 716-717 (2) (715 SE2d 113) (2011). In reviewing the trial court’s resolution of a speedy trial claim, we must accept the court’s findings of fact if the record contains any evidence to support them, and we will defer to the court’s “ultimate conclusion ... unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.” State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013). With that being so, the trial court’s order “must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker analysis.” (Citation omitted; emphasis supplied.) State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).

Here, although the trial court found the pretrial delay of 40 months presumptively prejudicial and thus required a second-tier analysis of the Barker-Doggett factors, in analyzing these factors it merely pronounced at the conclusion of the hearing on Munna’s motion for discharge and acquittal that “the delay was not uncommonly long. I also find that [Munna] asserted his right approximately 8 days ago. I also find that there is no prejudice suffered as a result of the delay.” The trial court failed to make findings of fact regarding its conclusion that the delay was not uncommonly long; the trial court failed to indicate whether it attributed the reason for the delay to the State or Munna and what weight it gave to this factor; and the trial court failed to indicate what weight, if any, it gave to the fact that Munna’s motion was made eight days before trial. “Absent such findings, there is no exercise of discretion for this Court to review.” (Citations and punctuation omitted.) Higgenbottom v. State, 288 Ga. 429, 430-431 (704 SE2d 786) (2011).

Accordingly, we find the limited findings made by the trial court insufficient to provide for proper appellate review, and the order denying Munna’s motion for new trial is vacated in part as it relates to Munna’s speedy trial claim, and the case is remanded for the trial court to “enter findings of fact and conclusions of law consistent with Barker.” Higgenbottom, 288 Ga. at 431.

Decided March 20, 2015.

Megan R. Pulsts, for appellant.

Layla H. Zon, District Attorney, W. Cliff Howard, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Boggs and Branch, JJ., concur.

       Under OCGA § 40-5-58 (a), “habitual violator” means a person who has been arrested and convicted three or more times within a five-year period of time for certain driving offenses, including driving under the influence of alcohol. See OCGA §§ 40-5-58 (a) (1); 40-6-391.

       See Ga. L. 2011, p. 355, § 5 (rewriting OCGA § 40-5-58 (b)).


author: DOYLE, Presiding Judge.

text:
    A14A1859.
    TILLMAN et al. v. MEJABI.
    (771 SE2d 110)
   DOYLE, Presiding Judge.

John and Terry Tillman, plaintiffs in a personal injury suit arising from a car crash, appeal from an order granting defendant Funmilayo Mejabi’s motion to enforce a settlement agreement. The Tillmans contend that the trial court erred because Mejabi’s acceptance of their settlement demand contained additional terms not included in the plaintiffs’ demand. For the reasons that follow, we affirm.

We apply a de novo standard of review to a trial court’s order on a motion to enforce a settlement agreement. Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show 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 the [a]ppellant[s’] case. Thus, we view the evidence in a light most favorable to the nonmoving party.

The relevant record is undisputed and shows that on or around August 30,2011, Mr. Tillman was allegedly involved in an automobile collision with Mejabi. He sought and received certain medical treatments, and on October 30, 2012, the Tillmans’ attorney sent a letter to a claims representative for Progressive Mountain Insurance Company, Mejabi’s automobile insurer. The letter listed various medical and mileage expenses incurred by Mr. Tillman and a loss of consortium claim and stated as follows:

This letter is an offer to compromise a disputed claim— We respectfully advise you that we represent [the Tillmans] in regard to the above-referenced matter. In this respect, Mr. Tillman was seriously injured in an automobile collision that. . . was caused by and the fault of Funmilayo Mejabi, who is or was an insured of [Progressive]. ... To date, the total amount of special damages is $70,425.69.... Based on the above information we, therefore, demand the policy limits of $25,000 in full and final settlement of this matter. This demand is extended until 5:00 p.m. on Wednesday, November 28, 2012, at which time it will stand withdrawn.

The letter makes no mention of a release, indemnification, or other terms commonly anticipated and discussed during settlements of this nature.

Three days later, Progressive responded with a letter tendering a check for $25,000. The letter stated:

In response to your letter dated October 30, 2012[,] for your client John Tillman, Progressive agrees to meet your demand of $25,000 for this client.
Enclosed is a draft in the amount of $25,000 in full and final settlement of your client’s claim in the above-referenced matter. Also enclosed is a Release for your client’s signature. Please keep the settlement money in your trust account until the Release is signed and returned to this office.

The attached release included a general release of all claims and agreements for the Plaintiff to pay and resolve all medical liens and indemnify the Releasees from any medical claims.

On January 14, 2013, counsel for the Tillmans returned the check and a copy of the release, explaining in a letter that his demand “did not say our client would sign [a general release] in regard to this matter. Your counter offer of $25,000 with a proposed General Release is rejected.” And for the first time the Tillmans’ attorney informed Progressive that they would accept a Limited Liability Release and $25,000 for the client, Mr. Tillman. On January 22, 2013, without explanation, Progressive responded that it was “not in a position to provide a Limited Release to your client at this time.”

In light of this impasse, the Tillmans sued Mejabi in April 2013, seeking damages from the car crash. Progressive defended Mejabi and moved to enforce the settlement agreement. The trial court granted the motion, finding that the parties agreed to a payment of $25,000 to the Plaintiff in full and final settlement of the case, directed the “Plaintiff... to execute and return to Defendant’s counsel a release of claims,” and directed the clerk to “mark this action brought by John Tillman as settled and dismissed with prejudice____” This appeal ensued.

The Tillmans argue that Progressive’s response to their demand letter did not qualify as an acceptance because the release required their agreement to material terms other than those offered in the demand letter. We disagree.

We note at the outset that

well-established principles guide our inquiry into whether the parties entered into a settlement agreement. In order to prevent litigation, compromises of doubtful rights are upheld by general policy. At the same time, courts are certainly limited to those terms upon which the parties themselves have mutually agreed. Indeed, apart from such mutual agreement, no enforceable contract exists between the parties. And settlement agreements must meet the same requirements of formation and enforceability as other contracts. Thus, an answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. The offer must be accepted unequivocally and without variance of any sort. And if a purported acceptance of the plaintiff’s settlement offer imposes any new conditions, it constitutes a counteroffer rather than an acceptance. Furthermore, the party asserting the existence of a contract has the burden of proving its existence and its terms.

Decided March 20, 2015.

The Conner Law Group, David M. Conner, for appellants.

Carlock, Copeland & Stair, Frederick M. Valz III, Erica L. Parsons, Brennan, Harris & Rominger, G. Mason White, Worsham, Corsi, Scott & Knighten, Andrea E. Dobur, for appellee.

Here, the Tillmans’ offer listed John Tillman as the client, Mejabi as the insured, and August 30, 2011 as the date of the accident. The letter demanded “the policy limits of $25,000 in full and final settlement of this matter.” Progressive agreed to these terms. As such there was a meeting of the minds on the essential terms irrespective of Progressive’s inclusion of a general release with terms unacceptable to the Tillmans’ attorney. “[I]t is well settled that the mere inclusion of a release form unacceptable to the plaintiff does not alter the fact that a meeting of the minds had occurred with regard to the terms of the settlement.” “[T]he presentation of a proper release in a form acceptable to plaintiff may have been a condition of defendant’s performance but it was not an act necessary to acceptance of plaintiff’s offer to settle for the policy limits.” The trial court properly ordered John Tillman to execute a release of claims to accomplish the parties’ agreement to a full and final settlement of the matter.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       (Punctuation omitted.) Johnson v. DeKalb County, 314 Ga. App. 790, 791 (726 SE2d 102) (2012).

       The Tillmans’ attorney identified the loss of consortium claim as Mr. Tillman’s, but this appears to be a typographical error as Mrs. Tillman is the only party who could have asserted a loss of consortium claim under the facts of this case.

       (Emphasis supplied.)

       Appellants rely heavily on the fact that “nowhere in the demand letter did [they] agree to execute any form of a release document.” However, this Court has consistently held that it is implicit in an offer to settle that the plaintiff “promisefs] to execute some instrument terminating the controversy as to that settling defendant.” Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199) (1994) (“An implicit contractual provision exists where such provision is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it.”). In Herring, we held that because
      plaintiff’s written offer to settle her pending tort claim with the tortfeasor for the limits of the latter’s automobile liability coverage necessarily contained her implied promise to execute some instrument terminating the controversy as to that settling defendant, such an offer [though silent as to the particular form by which she impliedly promised that she would terminate the controversy] is sufficiently definite to be capable of acceptance and so to create a mutually binding and enforceable contract.
      Id.

       (Emphasis supplied.)

       (Punctuation omittedl) Hansen v. Doan, 320 Ga. App. 609, 611-612 (740 SE2d 338) (2013).

        Turner v. Williamson, 321 Ga. App. 209, 213 (2) (738 SE2d 712) (2013), citing Smith v. Hall, 311 Ga. App. 99, 101-102 (714 SE2d 742) (2011); Baldwin v. Adams, 306 Ga. App. 104, 105 (701 SE2d 577) (2010); Mealer v. Kennedy, 290 Ga. App. 432, 436-437 (659 SE2d 809) (2008); Herring, 213 Ga. App. at 699.

        Newton v. Ragland, 325 Ga. App. 371, 374 (1) (750 SE2d 768) (2013).


author: Branch, Judge.

text:
    A14A1921.
    NELSON v. HAMILTON STATE BANK.
    (771 SE2d 113)
   Branch, Judge.

Jimmy R. Nelson signed a commercial promissory note in favor of Bartow County Bank (BCB) in the original principal amount of $2,977,019.70. Upon Nelson’s default, Hamilton State Bank (HSB), the successor-in-interest to BCB, brought suit on the note. The trial court granted summary judgment to HSB for $2,866,990.37 plus post-judgment interest. On appeal, Nelson contests the amount of the indebtedness and asserts that there is a genuine issue of material fact as to whether HSB’s actions directed at his business partner and cousin Dolph Nelson (“Dolph”) impaired Nelson’s ability to make payments to HSB. For the reasons that follow, we affirm the judgment of liability and reverse as to damages.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So construed, the record shows that Nelson and Dolph are each fifty percent owners of one or more corporate entities related to the family furniture business; that in 2005, two of the corporate entities entered into a $3.9 million loan with BCB with the final payment due on February 21,2010 (the “furniture business loan”); and that Nelson was on the board of directors of BCB during that entire time.

Meanwhile in March 2007, Dolph purchased a residence and obtained a purchase money loan for $586,729.50 from BCB. The associated security deed included a “dragnet clause,” which provided that the real estate secured the residential loan and “any and all other and further indebtedness now owing or which may hereafter be owing, however incurred, to [BCB], its successors and assigns, by [Dolph Nelson] and [his] successors in title.” In November 2007, Dolph obtained an equity line of credit (ELOC) on the residence and used the proceeds to pay off the purchase money note on the residence. Although the purchase money loan was satisfied as a result, BCB did not cancel the original purchase money security deed that contained the dragnet clause.

Next, on June 7,2010, Nelson and Dolph “renewed” the furniture business loan by each entering into personal loans with BCB: Nelson’s loan, at issue in this case, was in the amount of $2,977,019.70; and Dolph’s loan was in the amount of $2,980,336.97. Nelson avers that for several reasons, including certain banking regulations, BCB required personal loans instead of another commercial loan in the name of the furniture business entities. Thereafter, the furniture business made 16 monthly payments on each of the personal loans but none after October 2011.

In the meantime, in April 2011, BCB was closed by the Georgia Department of Banking and Finance; the Federal Deposit Insurance Company was appointed a receiver; and it assigned Nelson’s promissory note to HSB. In October 2011, Dolph paid off the equity line of credit, and the furniture business made its last payments on the Nelson and Dolph 2010 promissory notes. Dolph learned several months later that HSB continued to hold an interest in his personal residence as security for payment of his 2010 $2.9 million note.

In March 2012, HSB brought separate suits against Nelson and Dolph for the unpaid balance on the two personal notes. The trial court separately granted summary judgment in favor of HSB in both cases. And Dolph, who is represented by the same attorneys, has filed a separate appeal.

1. Nelson contends that the trial court erred by rejecting as a matter of law his defense that his and Dolph’s 2010 promissory notes were inextricably intertwined such that Nelson should be excused from payment because of HSB’s actions vis-a-vis Dolph. Nelson asserts that HSB breached its contract with Dolph regarding the security on his home and improperly “asserted leverage” over Dolph by use of the dragnet clause, which, Nelson argues, should have been extinguished when Dolph satisfied his residential purchase mortgage debt in November 2007 with the proceeds of the ELOC. Nelson also asserts that there are issues of fact as to whether HSB intended to consider Dolph’s residence as a part of its security for Dolph’s 2010 promissory notes. We agree with HSB that this enumeration of error lacks merit.

First, Nelson has not asserted that he was a party to or a third-party beneficiary of Dolph’s residential mortgage, the ELOC, or Dolph’s 2010 promissory note. Accordingly, he lacks standing to raise claims based on those transactions. Dominic v. Eurocar Classics, 310 Ga. App. 825, 828 (1) (714 SE2d 388) (2011) (“As a general rule, one not in privity of contract with another lacks standing to assert any claims arising from violations of the contract.”) (citations omitted). See also Jurden v. HSBC Mtg. Corp., 330 Ga. App. 179 (1) (765 SE2d 440) (2014) (where plaintiff was not a party to loan agreement or assignment of security interest nor a third-party beneficiary under either agreement, he lacked standing to challenge either agreement) (physical precedent only); OCGA § 9-2-20.

Instead, Nelson argues that the two 2010 promissory notes were “inextricably intertwined” and that therefore he was affected by HSB’s actions vis-á-vis Dolph’s promissory note. See Iwan Renovations v. North Atlanta Nat. Bank, 296 Ga. App. 125, 128 (1) (673 SE2d 632) (2009) (“As a general rule, two debts that are incurred for the same purpose, secured hy the same property, held by the same creditor, and owed by the same debtor are inextricably intertwined.”) (citations and footnotes omitted). When separate debts are seen as inextricably intertwined, Georgia courts reviewing confirmation of foreclosure sales will examine the foreclosure of both debts when determining whether a deficiency judgment is allowed under the confirmation statute (OCGA § 44-14-161). We know of no case law, and Nelson has not cited any, showing that this doctrine has been applied outside of the determination of whether deficiency judgments are allowed. We decline to do so here.

Because Nelson has no standing to assert defenses based on Dolph’s contractual relationship with HSB, this enumeration of error is without merit.

2. Nelson contends that the judgment amount is not supported by competent evidence in the record. In his appellate brief, he states that he “admits to execution of the Note but not the amount entered by the court.” We agree that an issue of fact remains as to the amount.

“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.” Myers v. First Citizens Bank & Trust Co., 324 Ga. App. 293, 296 (2) (750 SE2d 378) (2013) (suit on a note) (punctuation and footnote omitted); see also Lockwood v. Fed. Deposit Ins. Corp., 330 Ga. App. 513, 517 (2) (b) (767 SE2d 829) (2014) (“[I]n an action on a promissory note, the plaintiff has the burden of proving that the defendant is indebted to him and in a definite and correct amount.”) (punctuation and footnote omitted). Thus, a plaintiff in a suit on a note is not entitled to summary judgment as to the amount of the debt where it offers “no testimony or any documentation explaining its method of calculating the specific amounts sought” such that the trial court is unable to confirm the plaintiff’s calculation of the purported damages. Myers, 324 Ga. App. at 296 (2); cf. Alexander v. Wachovia Bank, Nat. Assn., 305 Ga. App. 641, 643 (700 SE2d 640) (2010) (judgment on the pleadings improper under the same circumstances).

The trial court’s order, which was prepared by HSB, simply states that HSB “is entitled to damages under the Note (as defined in the Plaintiff’s Verified Complaint) in the amount of $2,866,990.37, which amount is equal to the outstanding principal balance due under the Note as of March 19, 2014.” But nowhere in the verified complaint, the record below, the briefs below or on appeal, nor at the hearing on the motion for summary judgment has HSB shown how it calculated the amount of principal due on the loan, shown the breakdown of principal and interest in each payment, or produced an amortization schedule for the loan or witness testimony of the amount the trial court ordered. It appears that the only manner in which HSB presented the amount of outstanding principal to the trial court was in a statement by HSB’s counsel at the hearing on the motion for summary judgment and in HSB’s proposed order, which the trial court used and is quoted above. The trial court’s judgment as to the amount of the debt therefore lacks a sufficient basis. Myers, 324 Ga. App. at 296 (2) (summary judgment as to amount due on note improper where bank failed to provide sufficient testimony or documentation so that court could calculate the amount with a reasonable degree of certainty).

In an attempt to justify the trial court’s award, HSB points to four items of evidence: (1) when asked in discovery to itemize all payments he made toward the note, Nelson responded, “This information is equally available to [HSB]”; (2) in his deposition, Nelson testified that although he did not remember the amount owed, his secretary knew and it was “like two million eight or something[;] I don’t remember,” and his secretary never told him that HSB’s calculation was incorrect; (3) an HSB senior vice president averred that Nelson was in default and that as of September 9, 2013, he was indebted in the amount of $3,218,538.88, “inclusive of principal, interest, expenses and fees to that date, but not inclusive of interest that has accrued since that date, attorneys’ fees, and other costs, charges, and fees allowed pursuant to the terms of the Note”; and (4) the terms of the note itself, which specify the total principal, the interest rate, the accrual method, and the number of payments required, together with the fact that Nelson stopped making payments in October 2011.

Decided March 20, 2015.

Howick, Westfall, McBryan & Kaplan, Louis G. McBryan, David A. Bikoff, for appellant.

Balch & Bingham, Matthew B. Ames, Walter E. Jones, for appellee.

We fail to see how the first three items listed by HSB could possibly establish the outstanding principal as of March 19, 2014, to the penny. Although Nelson may have admitted that he did not disagree with HSB’s accounting, there is no indication that Nelson was referring to a specific number. And even though the note itself gives detailed information about the payments, this Court is unable to recreate the amount awarded by the trial court. Accordingly, the court erred by entering a judgment for the specific amount of the debt.

3. Because the trial court correctly determined that Nelson is liable on his 2010 note to HSB, we affirm the judgment below as to liability but reverse the award of damages and remand for further proceedings consistent with this opinion. Hanna v. First Citizens Bank & Trust Co., 323 Ga. App. 321, 329 (4) (744 SE2d 894) (2013).

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

Barnes, P. J., and Boggs, J., concur.

       On the day the security deed was recorded, Dolph conveyed his interest in the residence to his wife.

       OCGA § 9-2-20 provides as follows:
      (a) As a general rule, an action on a contract, whether the contract is expressed, implied, by parol, under seal, or of record, shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent.
      (b) The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.

       “This Court has applied OCGA § 44-14-161 (a) to foreclosure proceedings on separate debts which are inextricahly intertwined to prevent creditors from circumventing the statute’s mandates by making successive loans against the security of the same property.” Iwan Renovations, 296 Ga. App. at 128 (1) (citation and footnote omitted).

       HSB states that it “waived its claim for interest, expenses, and fees” and that the trial court “entered judgment only for the principal amount owing.”

       The note imposes a 5.25 percent interest rate on the outstanding principal from June 7, 2010 forward and requires 35 payments of $20,227.36 starting on July 20,2010, with a balloon payment for the balance of unpaid principal and interest due on May 20, 2013; the accrual method is stated as “actual/360.” It is undisputed that Nelson made 16 payments.


text:
    A14A1988.
    TIFT COUNTY SCHOOL DISTRICT et al. v. MARTINEZ et al.
    (771 SE2d 117)
   DOYLE, Presiding Judge.

Isabel Martinez sued the Tift County School District and Marie Thompson, a school bus driver, seeking damages arising from the death of her son when he was hit by a car while attempting to board a school bus. The District and Thompson appeal from the denial of their motion for summary judgment filed on sovereign immunity and official immunity grounds. Specifically, they contend that the trial court erred by ruling that (1) OCGA § 33-24-51 expressly provides for a waiver of sovereign immunity based on the purchase of motor vehicle insurance; (2) the District and Thompson waived sovereign and official immunity by stipulation; and (3) certain arguments about the scope of the waiver were moot because they were not presented prior to entry of the pre-trial order. For the reasons that follow, we affirm.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the record shows that one morning in May 2010, Jonathan Martinez waited at his assigned roadside location to board the school bus that customarily took him to school. The speed limit on the road is 55 miles per hour, and visibility was reduced by heavy fog that morning. Thompson was driving the school bus, and after she stopped the bus at the customary location and activated the warning signals, Jonathan attempted to cross the street to board the bus. As he crossed, he was struck by an oncoming vehicle that failed to yield for the stopped school bus.

Isabel Martinez filed suit against the District, Thompson, and the driver who struck Jonathan, alleging various claims for negligence. As to the District and Thompson, Martinez alleged that they failed to follow certain policies, properly instruct students, exercise due care, and exhibit due regard for the safety of others. As to the District only, Martinez alleged claims for negligent hiring, retention, entrustment, and evaluation of Thompson.

The defendants answered, and in December 2013, Thompson moved for summary judgment on official immunity grounds. In January 2014, the parties entered into a stipulation, filed with the court, stating that Thompson, as a public employee, was immune from personal liability for “performing a discretionary function in the scope of her employment and acting without actual malice. This Immunity applies to any act involving the monitoring, supervising[,] and controlling of students while operating a school bus.” The stipulation went on to state:

However, because the school bus, which she was operating, was owned and insured by the Tift County School District, then the presence of this liability insurance will operate as a waiver by Marie Thompson [’s] Official Immunity to the extent of the insurance coverage when she is sued in her official capacity.

The stipulation further stated that the District held a commercial automobile liability policy with a $1 million limit, and the District’s sovereign immunity was waived to the extent of the amount of insurance purchased.

The trial court adopted the stipulation as part of the pre-trial order and deemed Thompson’s motion granted with respect to official immunity from liability in her individual capacity. That ruling has not been appealed.

After retaining new counsel, the District and Thompson obtained leave to file a second motion for summary judgment (filed after entry of the pre-trial order), arguing that the stipulation was ineffectual absent a statutory waiver of immunity and that no such waiver applied here. The trial court denied that motion, ruling based on the stipulation and statutory authority that the District had waived its sovereign immunity to the extent of the motor vehicle insurance it purchased. The District and Thompson now appeal.

1. At the outset, we note that

[sjovereign immunity extends to the State and all of its departments and agencies, including [school districts].[] The sovereign immunity of the State and its departments and agencies can only be waived by an Act of the General Assembly [,] which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. . . . Further, sovereign immunity is not an affirmative defense (see OCGA § 9-11-8 (c)) that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver.

The appellants argue that the trial court erred by ruling that the District’s sovereign immunity was waived under OCGA § 33-24-51, which provides as follows:

(a) A municipal corporation, a county, or any other political subdivision of this [Sjtate is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this [Sjtate under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.
(b) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2. Whenever a municipal corporation, a county, or any other political subdivision of this [Sftate shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2, its governmental immunity shall be waived to the extent of the amount of insurance so purchased. Neither the municipal corporation, county, or political subdivision of this [Sjtate nor the insuring company shall plead governmental immunity as a defense; and the municipal corporation, county, or political subdivision of this [Sjtate or the insuring company may make only those defenses which could be made if the insured were a private person.

OCGA § 36-92-2 (a) provides that “[t]he sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to [certain] limits,” regardless of the purchase of motor vehicle insurance.

The appellants point to OCGA § 36-92-1 (3), which explicitly excludes local school systems from the definition of “local government entities,” thereby exempting local school systems such as the District from the waiver of immunity in OCGA § 36-92-2. Because OCGA § 33-24-51 (b) refers to the waiver in OCGA § 36-92-2, they argue that the District is likewise excluded from the waiver in OCGA § 33-24-51 (b).

This construction overlooks plain distinctions in the language of OCGA § 33-24-51 (b) and misconstrues the statutory scheme. As explained in Gates v. Glass,

[a]n examination of OCGA § 36-92-1 et seq., as well as the earlier and revised versions of OCGA § 33-24-51 (a) and (b), demonstrates an intent on the part of the legislature to create a two-tier scheme within which local governments are deemed to have waived sovereign immunity with regard to accidents arising from the operation of their motor vehicles. The first tier, [which explicitly excludes school districts and is] established under OCGA § 36-92-1 et seq., requires local entities to waive sovereign immunity — up to certain prescribed limits — for incidents involving motor vehicles regardless of whether they procure automobile liability insurance. The second tier, [which does not exclude school districts and is] enacted by OCGA § 33-24-51 (b), and as revised in 2002, provides for the waiver of sovereign immunity to the extent a local entity purchases liability insurance in an amount exceeding the limits prescribed in OCGA § 36-92-2. It follows that, where, as here, a local entity purchases automobile liability insurance in an amount greater than the prescribed limits set forth for a waiver of sovereign immunity under OCGA § 36-92-1 et seq., the entity waives sovereign immunity to the extent of its insurance coverage as required by OCGA § 33-24-51 (b).

Appellants are correct that there is no waiver of immunity for school districts under OCGA § 36-92-1, but that does not end the analysis. The second tier of waiver does not exclude school districts, and it explicitly provides for a waiver of immunity to the extent that a local entity purchases motor vehicle insurance greater than the waiver (in this case none) provided in OCGA § 36-92-1.

This is evidenced by the General Assembly’s precise use of language in OCGA § 33-24-51 (b). The first sentence, stating that sovereign immunity is waived as provided in OCGA § 36-92-2, carefully tracks the language of that Code section and refers to “local government entities,” which, by definition, explicitly excludes school districts. But the next sentence of OCGA § 33-24-51 (b), which creates the second tier described above, departs from that nomenclature and states more broadly that “[w]henever a municipal corporation, a county, or any other political subdivision of this [SJtate shall purchase” motor vehicle insurance in an amount greater than the waiver in OCGA § 36-92-2, governmental immunity is waived to the extent of such insurance coverage. “All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it”; therefore, in the absence of any ambiguity, we must give effect to the plain meaning of this more general phrase, “any other political subdivision,” and apply it as written. If the General Assembly intended to exclude school districts from this waiver of immunity it could have used the language it already employed in the preceding sentence of OCGA § 33-24-51 (b); but it did not, instead retaining the different, more inclusive language, “any other political subdivision.” Accordingly, the District’s immunity is waived to the extent of the coverage of the motor vehicle insurance it purchased.

2. The conclusion in Division 1 moots the appellants’ challenge to the trial court’s ruling that immunity was waived by stipulation, but we note that parties may not waive the State’s immunity because “only the General Assembly may waive sovereign immunity for the State.”

We further clarify that the stipulation as written attempts to waive Thompson’s official immunity “to the extent of the insurance coverage when she is sued in her official capacity.” This misapprehends the nature of official immunity. “While sovereign immunity protects . . . the State itself, including its agencies and instrumentalities, official immunity protects state employees from being sued in their personal capacities.” Martinez has stipulated that Thompson herself is immune from personal liability for any acts falling within the rubric of official immunity, including “any act involving the monitoring, supervising and controlling of students while operating a school bus.” And Martinez has not appealed the order of the trial court adopting this portion of the stipulation, essentially relieving Thompson of personal liability. Any remaining questions of liability are on the part of the District, to the extent proven and within the scope of the waiver of sovereign immunity discussed in this opinion.

Decided March 20, 2015

3. The appellants argue that the trial court erred by ruling that their substantive contentions as to negligence were moot. While the questions of negligence were not moot in light of the trial court’s correct conclusion that the District’s immunity had been waived to the extent of the motor vehicle insurance, the trial court’s order essentially declined to rule on those substantive contentions at that time because they did not comply with the court’s earlier scheduling order. We decline to disturb the trial court’s exercise of discretion in this regard. But to the extent that the trial court’s ruling can be construed to mean that every case of negligence falls within the waiver of immunity, this is error. The extent of the District’s liability is defined by the statutory waiver of immunity:

The municipal corporation, county, or any other political subdivision of this [S]tate shall be liable for damages in excess of the amount of immunity waived as provided in Code Section 36-92-2 which are sustained only while the insurance is in force and only to the extent of the limits or the coverage of the insurance policy.

Accordingly, any potential liability is limited to the amount and scope of the District’s motor vehicle coverage in effect.

Judgment affirmed.

Miller and Dillard, JJ., concur.

Gregory, Doyle, Calhoun & Rogers, Arle M. Kline, Randall C. Farmer, for appellants.

Reynolds, Horne & Survant, John C. Fleming, Reinhardt Whitley Summerlin & Pittman, John R. Reinhardt, Brannen, Searcy & Smith, A. Martin Kent, for appellees.

        Bomia v. Ben Hill County School Dist., 320 Ga. App. 423 (740 SE2d 185) (2013).

       The driver, Mason Thompson (no relation), is not a party in this appeal.

       See DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 636 (1) (734 SE2d 466) (2012) (“The [School] Board, the School District, the Board’s members, and the superintendent enjoy sovereign immunity.”), citing Teston v. Collins, 217 Ga. App. 829, 831 (2) (459 SE2d 452) (1995) (the State’s sovereign immunity extends to county-wide school districts).

       (Citation, punctuation and emphasis omitted.) Bartow County v. Southern Dev., III, L.P., 325 Ga. App. 879, 881-882 (1) (756 SE2d 11) (2014).

       (Emphasis supplied.)

       291 Ga. 350, 352-353 (729 SE2d 361) (2012).

       (Citation omitted.) Poteat v. Butler, 231 Ga. 187, 188 (1) (200 SE2d 741) (1973).

       See generally Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995) (county-wide school districts are political subdivisions of the State).

       See Bomia, 320 Ga. App. at 425 (“For losses arising out of claims for the negligent use of a covered motor vehicle, sovereign immunity for local government entities, such as the School District, is waived ... to the extent that local government entities purchase [motor vehicle] liability insurance in excess of the set limits.”).

        Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 597 (2) (755 SE2d 184) (2014).

        Shekhawat v. Jones, 293 Ga. 468, 470 (1) (746 SE2d 89) (2013).

        See Donaldson v. Dept. of Transp., 262 Ga. 49, 56 (2) (414 SE2d 638) (1992) (“While suits against public employees in their personal capacities involve official immunity, suits against public employees in their official capacities are in reality suits against the [S]tate and, therefore, involve sovereign immunity.”) (Hunt, J., concurring).

       (Emphasis supplied.) OCGA § 33-24-51 (c).


author: ANDREWS, Presiding Judge.

text:
    A14A2173.
    MASSEY v. THE STATE.
    (771 SE2d 122)
   ANDREWS, Presiding Judge.

Jonathan Aaron Massey was charged by accusation with the offense of driving with an alcohol concentration of 0.08 grams or more in violation of OCGA § 40-6-391 (a) (5). Massey brings this interlocutory appeal from the trial court’s denial of his pre-trial request pursuant to OCGA § 40-6-392 (a) (4) for discovery concerning the blood test conducted by the State to determine his blood alcohol concentration. For the following reasons, we affirm.

1. At the time of his arrest for driving under the influence, Massey was given the implied consent notice and refused a State-administered chemical test of his breath requested by the arresting officer. After Massey refused the requested test, the officer immediately obtained a search warrant pursuant to which blood was forcibly taken from Massey. The officer sent Massey’s blood to the Georgia Bureau of Investigation, where a forensic toxicologist employed by the Forensic Sciences Division (the State Crime Lab) chemically tested the blood using a gas chromatography instrument. Based on the test results, the toxicologist generated a report finding that the blood had an alcohol concentration of 0.133 grams (plus or minus 0.005 grams) per 100 milliliters. Massey filed a pre-trial discovery request seeking information about the blood test pursuant to the discovery provisions set forth in OCGA § 40-6-392 (a) (4). The trial court denied the discovery request on the basis that OCGA § 40-6-392 (a) (4) expressly limits discovery concerning chemical testing of a person’s blood, urine, breath, or other bodily substance to “the person who shall submit to a chemical test or tests at the request of a law enforcement officer.” The court concluded that the discovery provisions of subsection (a) (4) did not apply because Massey refused to submit to a breath test requested by the officer at the time of his arrest, and the alcohol concentration test at issue was conducted on blood forcibly taken from Massey pursuant to a search warrant obtained by the officer.

OCGA § 40-6-392 provides in relevant part:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:

(1) (A) Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.
(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;
(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and
(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.
(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.

(Emphasis supplied.)

An officer’s authority to request at the time of arrest that a driver submit to the above described chemical testing for alcohol or drugs, and to direct the test to be administered (after obtaining consent), derives from the implied consent provisions of OCGA § 40-5-55 (a), which provide:

The State of Georgia considers that any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public. Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.

(Emphasis supplied.)

OCGA § 40-5-67.1 (a) and (b) further provide that, at the time the arresting officer requests the chemical testing described in OCGA § 40-5-55, the officer must give the driver an appropriate implied consent notice, which includes information regarding consequences for refusing the testing requested by the officer, and the driver’s right to obtain additional chemical testing (at the driver’s expense) after submitting to the testing requested by the officer. Subsection (d) of OCGA § 40-5-67.1 provides that, if the arrested driver refuses to submit to the testing requested by the officer pursuant to OCGA § 40-5-55, “no test shall be given,” and sets forth consequences resulting from the refusal. Finally, subsection (d. 1) of OCGA § 40-5-67.1 makes clear that, if the driver refuses the arresting officer’s request to submit to chemical testing pursuant to OCGA § 40-5-55, nothing in the Code section precludes the officer from otherwise obtaining evidence of a violation of OCGA § 40-6-391 “by voluntary consent or a search warrant....” Because Massey refused the officer’s request to submit to chemical testing pursuant to OCGA § 40-5-55 (a), the officer properly sought and obtained a search warrant to forcibly take blood from Massey for the purpose of testing the blood by gas chromatography at the State Crime Lab pursuant to OCGA § 40-6-392 (a) (1) (A) for evidence of an alcohol concentration in violation of OCGA § 40-6-391. McAllister v. State, 325 Ga. App. 583, 585 (754 SE2d 376) (2014).

The discovery provisions of OCGA § 40-6-392 (a) (4) broadly grant access to “full information concerning the test,” for alcohol or drugs in a person’s blood, urine, breath, or other bodily substance, and are “consistent with the broad right of cross-examination embodied in [OCGA § 24-6-611 (b)]Price v. State, 269 Ga. 222, 224 (498 SE2d 262) (1998). The “full information” provisions of OCGA § 40-6-392 (a) (4) have been construed to grant discovery of the test results generated by a gas chromatography instrument used to test for blood alcohol concentration, including the right to obtain instrument printouts, memos, notes, graphs, and other data relied on by the State Crime Lab employee to generate the test results. Price, 269 Ga. at 224; Townsend v. State, 236 Ga. App. 530, 532 (511 SE2d 587) (1999). The production of discovery granted under OCGA § 40-6-392 (a) (4) may be obtained by subpoena or by a request directed to the State. Cottrell v. State, 287 Ga. App. 89, 90-91 (651 SE2d 444) (2007). But discovery pursuant to OCGA § 40-6-392 (a) (4) is expressly limited by the terms of subsection (a) (4) to “the person who shall submit to a chemical test or tests at the request of a law enforcement officer....” As set forth above, OCGA § 40-6-392 is part of the statutory scheme for implied consent chemical testing, which makes clear that “the person who shall submit to a chemical test or tests at the request of a law enforcement officer,” as set forth in subsection (a) (4), refers to a driver who submits at the time of arrest to a chemical test requested by the arresting officer pursuant to the implied consent provisions of OCGA § 40-5-55. State v. Bowen, 274 Ga. 1, 3 (547 SE2d 286) (2001) (statutory language must be considered in relation to other statutes which form a statutory scheme). Because Massey refused to submit to the chemical testing requested by the arresting officer pursuant to OCGA § 40-5-55, he was excluded from the discovery provisions of OCGA § 40-6-392 (a) (4), and the trial court correctly denied Massey’s discovery request made pursuant to those provisions.

2. Massey claims on appeal that his constitutional rights to due process and a fair trial were violated by the trial court’s refusal to grant his request for discovery concerning the alcohol concentration blood test conducted by the State. Because Massey failed to obtain a distinct ruling from the trial court on these claims, they were not preserved for appellate review.

Judgment affirmed.

McFadden and Ray, JJ., concur.

Decided March 20, 2015

The Hawkins Law Firm, Matthew W. Kilgo, for appellant.

Rosanna M. Szabo, Solicitor-General, Robert W. Stills, Jr., Assistant Solicitor-General, for appellee.

       We render no opinion as to whether a defendant charged with a misdemeanor violation of OCGA § 40-6-391, who refused to submit to the chemical testing requested by the arresting officer pursuant to OCGA § 40-5-55, may be entitled by means other than OCGA § 40-6-392 (a) (4) to obtain a copy of a gas chromatograph printout or other scientific work product relied on to generate alcohol concentration test results for the State. See Bazemore v. State, 244 Ga. App. 460, 462, n. 1 (535 SE2d 830) (2000); Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990), overruled in part, State v. Lucious, 271 Ga. 361, 365 (518 SE2d 677) (1999).