author: McMlLLIAN, Judge.

text:
    A16A0784.
    BENDER et al. v. SOUTHTOWNE MOTORS OF NEWNAN II, INC. et al.
    (793 SE2d 618)
   McMlLLIAN, Judge.

This case involves issues of first impression concerning the application of the Georgia Lemon Law, OCGA § 10-1-780 et seq., which is designed to protect certain purchasers of “nonconforming” motor vehicles, sometimes referred to as “lemons” or “lemon vehicles.” Alleging that Southtowne Motors of Newnan II, Inc. (“Southtowne”) violated the Georgia Lemon Law when it sold them a 2010 Hyundai Genesis without disclosing that it had been reacquired by the manufacturer because of defects, plaintiffs/appellants Lindsey and Cory Bender (“plaintiffs” or “Benders”) filed suit against Southtowne and Ally Financial (“Ally”) (collectively “defendants” or “appellees”) stating claims for, among other things, rescission, revocation of acceptance, fraud and deceit, and violation of the Georgia Fair Business Practices Act of 1975 (“FBPA”), OCGA § 10-1-390 et seq. The trial court granted summary judgment to the defendants on all the Benders’ claims, and the Benders filed this appeal.

Viewing the evidence in the light most favorable to the Benders as the nonmoving party on summary judgment, the record shows that the Benders went to Southtowne to look at cars on January 15, 2012, and became interested in a Hyundai Genesis. They told the salesman, Buck Bush, that they liked a particular Genesis they saw on the lot but that it was out of their price range; they also were informed that someone else was already in the process of purchasing the vehicle. Bush told them about another Genesis he thought might interest them that had recently been delivered to the dealership, and he brought the vehicle from the back of the lot where it was parked for the Benders to see. The Benders took the Genesis for a test drive, and after they drove the vehicle, they looked under the hood and made a cursory examination of the vehicle. The Benders did not detect any problems with the vehicle but asked to see a Carfax report. Bush told them he had seen the Carfax and that it was clean, but Bush did not provide them with the written report, and the Benders did not make any further requests to see it. The Benders did, however, continue to express concern that this Genesis was also out of their price range, and Bush assured them “he could do a super deal” because it was a lease turn-in, telling them they were “very, very lucky because this is a once in a lifetime [deal].”

The Benders decided to purchase the vehicle and were taken to another Southtowne employee who was responsible for handling the financing and other paperwork. Among the papers they were asked to sign was a form titled “Illinois Resale Disclosure Statement” (“Illinois Disclosure Form”), which stated that the Genesis had been repurchased by the manufacturer, Hyundai Motor America (“HMA”) “pursuant to consumer warranty laws due to [certain listed] defect(s)/ nonconformit(ies).” The Benders testified they briefly reviewed the form and admitted they knew when they signed it that the Genesis had been repurchased by the manufacturer because of the stated defects. Lindsey also acknowledged that she asked if the defects had been repaired, and the Benders accepted the assurances that the defects had been remedied.

Approximately a week to a week and a half later, Bush called Lindsey and told her that they needed to execute an additional “loan document.” Cory went to the dealership, where Bush met him in the parking lot with a form he said was needed to complete the loan. Cory testified that Bush told him that he had filled in the form because he knew Cory was in a rush, and that Bush never took his hand off the form while he was signing it. Cory testified that he signed the form without reading it, and it was not until later that he learned the form he signed was the “Georgia Lemon Law Notice for Reacquired Vehicles” (“Georgia Lemon Law Form”), which had been backdated to the date of purchase of the Genesis.

Almost eight months later, over Labor Day weekend, Cory Bender went to a Lexus dealership to look at a vehicle he was interested in buying. He told the Lexus salesman he wanted to trade in the Genesis to buy the Lexus, but after making an inquiry, a Lexus manager told him that the Genesis had a “branded” title and that the Lexus dealership did not accept trades of branded title vehicles. Cory said this was the first time he knew that the title to the Genesis was branded and the first time anyone had explained to him the meaning of a branded title.

Cory left the Lexus dealership, and both Lindsey and he went immediately to Southtowne to inquire about the branded title. Lindsey testified that she first spoke to Bush, who told her he did not know the title was branded. The paperwork pertaining to the sale of the vehicle was shown to the Benders, including the Illinois Disclosure Form they signed at the time of purchase and the Georgia Lemon Law Notice Cory signed a few weeks later, but Southtowne did not produce the title to the vehicle. The Benders subsequently retained an attorney, and on October 24, 2012, their attorney sent a letter to Southtowne seeking rescission of the purchase and a refund of the purchase price, following which they would return the vehicle to the dealer. Southtowne did not agree to the terms stated in the letter, and the Benders filed this lawsuit.

1. We turn first to the Benders’ claims that Southtowne violated the Georgia Lemon Law and the Georgia FBPAby failing to make the disclosures required by OCGA § 10-1-790 (a) of the Georgia Lemon Law statute. Because there is a dearth of authority on the Georgia Lemon Law, we start by setting out the statutory framework.

The Georgia Lemon Law, which became effective January 1, 2009, was passed by the General Assembly

to create a procedure for expeditious resolution of complaints and disputes concerning nonconforming new motor vehicles, to provide a method for notifying consumers of their rights under this article, ... to ensure that consumers receive information, documents, and service necessary to enable them to exercise their rights under this article[,] to encourage manufacturers to take all steps necessary to correct nonconformities in new motor vehicles and to create the proper blend of private and public remedies necessary to enforce this article.

OCGA § 10-1-781. In addition to the statutory provisions enacted to effectuate these goals, OCGA § 10-1-795 authorizes the “Attorney Generalf] [to] promulgate rules and regulations and establish procedures necessary to carry into effect, implement, and enforce the provisions of this article,” and the pertinent rules and regulatory provisions are compiled at Ga. Comp. R. & Regs., r. 122-23-.01 et seq.

The statute protects two distinct classes of motor vehicle purchasers: (1) consumers who buy new motor vehicles in this state that are discovered to be nonconforming, see OCGA §§ 10-1-782 (15), (17); 10-1-784; 10-1-785; 10-1-787, and (2) purchasers of vehicles that have been reacquired by the manufacturer under the provisions of the Georgia Lemon Law or a similar statute of another state and are being re-sold in Georgia by the manufacturer, a new car dealer, or other transferor. OCGA § 10-1-790 (a).

The Georgia Lemon Law’s general enforcement provisions are contained in OCGA § 10-1-793, which makes violations ofthe Georgia Lemon Law “an unfair and deceptive act or practice in the conduct of consumer transactions under . .. the [FBPA].” Importantly, however, the Attorney General is tasked with primary responsibility for enforcement of the statute, and “except as provided in subsection (a) of Code Section 10-1-790, [the Georgia Lemon Law] shall not be enforceable through private action under Code Section 10-1-399 [of the FBPA]In other words, under the plain language of the statute, only violators of OCGA § 10-1-790 (a) are subject to a private claim under the FBPA. Accordingly, to maintain their FBPA claim under the Georgia Lemon Law, the Benders must show that Southtowne failed to comply with OCGA § 10-1-790 (a) when it sold them the Genesis. OCGA § 10-1-790 (a) provides:

(a) No manufacturer, its authorized agent, new motor vehicle dealer, or other transferor shall knowingly resell, either at wholesale or retail, lease, transfer a title, or otherwise transfer a reacquired vehicle, including a vehicle reacquired under a similar statute of any other state, [] unless the vehicle is being sold for scrap and the manufacturer has notified the Attorney General of the proposed sale or:
(1) The fact of the reacquisition and nature of any alleged nonconformity are clearly and conspicuously disclosed in writing to the prospective transferee, lessee, or buyer; and
(2) The manufacturer warrants to correct such nonconformity for a term of one year or 12,000 miles, whichever occurs first.
A knowing violation of this subsection shall constitute an unfair or deceptive act or practice in the conduct of consumer transactions under Part 2 of Article 15 of Chapter 1 of Title 10 and will subject the violator to an action by a consumer under Code Section 10-1-399.

(Emphasis supplied.)

Relying on this Court’s opinion in Walker v. Southtowne Motors of Newnan II, Inc., 330 Ga. App. XXVIII (Case No. A14A0964) (Nov. 21, 2014) (unpublished), the trial court found that Southtowne was not required to comply with OCGA § 10-1-790 (a) when it sold the car to the Benders because it was sold as a used car and thus did not fit the definition of a “reacquired” vehicle within the meaning of the Georgia Lemon Law. At the outset, we note that the trial court’s reliance on our unpublished opinion was misplaced. Such an “unreported opinion is lacking in value as precedent and is not binding on lower courts_” (Citation and punctuation omitted.) Dept. of Transp. v. Metts, 208 Ga. App. 401, 401 (1) (430 SE2d 622) (1993). Georgia Court of Appeals Rule 33 (b) (“An unreported opinion is neither a physical nor binding precedent but establishes the law of the case as provided by OCGA § 9-11-60 (h).”). Additionally, there are significant differences between the facts of Walker and this case. In Walker, the plaintiff was not the first purchaser of the vehicle following the manufacturer’s reacquisition, the dealer had acquired the vehicle after the first purchaser traded it in almost three years after the purchase, and there was a question concerning whether the dealer even knew the vehicle had been reacquired by the manufacturer. Thus, Walker is factually inapposite to this case.

Georgia’s Attorney General has filed an amicus brief in this case, asserting that the General Assembly may have used the term “reacquired” in OCGA § 10-1-790 to denote that only vehicles that were new when they were repurchased by the manufacturer are covered by the Georgia Lemon Law disclosure requirements since in Georgia manufacturers can only be forced to reacquire new motor vehicles, which may not be the case in other states. We need not parse that argument here since the parties do not dispute that the Genesis was new when it was repurchased by HMAin Texas, and thus under the facts of this case, it is clear that the Genesis falls within the definition of a “reacquired vehicle” as used in OCGA § 10-1-790 (a), even though it was classified as a “used” vehicle on the subsequently issued Georgia title.

Having determined the Georgia Lemon Law disclosure requirements contained in OCGA § 10-1-790 (a) applied to the sale of the Genesis, we must then answer the question of whether the notice given on the Illinois Disclosure Form was sufficient under OCGA § 10-1-790 (a). That section, on its face, mandates only that a seller of a reacquired vehicle provide clear and conspicuous written notice of the “fact of the reacquisition and nature of any alleged nonconformity ... to the prospective transferee, lessee, or buyer.” Reviewing the Illinois Disclosure Form, we have little hesitancy in concluding that the Benders were clearly and conspicuously informed in writing that the Genesis had been reacquired by the manufacturer and of the nature of the defects which precipitated the reacquisition. Moreover, the Benders testified they read the form, albeit hurriedly, and sought confirmation that the defects had been repaired, leaving no question that the Benders had actual notice at the time of sale that the vehicle they were purchasing had been reacquired by the manufacturer because it was defective.

Nevertheless, the Benders argue the disclosure made on the Illinois Disclosure Form was insufficient under Georgia law because our Lemon Law rules and regulations, promulgated pursuant to the authority contained in OCGA § 10-1-795, impose additional requirements not contained in the statute, including that the disclosure be made on a particular “form.” The applicable regulations provide as follows:

(1) A reacquired vehicle shall not be subject to transfer, lease, or sale, either at wholesale or retail, by any person having knowledge of such fact, unless the following conditions are met:
(a) At the time of each transfer of the reacquired vehicle, the transferor shall ensure the transferee receives the form; []
(b) If a reacquired vehicle is transferred to a dealer or lessor for resale, the signature of the dealer or lessor to whom the vehicle is transferred shall constitute an agreement to disclose all information contained on the form to the ultimate consumer before the sale or lease of the reacquired vehicle; and
(c) Prior to selling or leasing a reacquired vehicle, the selling dealer or lessor shall give the ultimate consumer the opportunity to read the form in its entirety The ultimate consumer shall sign and date the form. The selling dealer or lessor shall provide the ultimate consumer with a copy of the completed and signed form.
(2) When the reacquired vehicle is sold or leased to the ultimate consumer, the manufacturer shall activate the warranty required pursuant to OCGA § 10-1-790 (a) (2). The manufacturer or its authorized agent shall provide a copy of the form to the Administrator within thirty (30) days from the date of the sale or lease.

Ga. Comp. R. & Regs., r. 122-23-.02 (2011).

The “ultimate consumer” is defined in Ga. Comp. R. & Regs., r. 122-17-,01 (17) as “the first person who purchases or leases a reacquired vehicle for purposes other than resale or sublease.”

Here, there is no question that the Benders were the “ultimate consumer[s]” of the Genesis. Thus, reading the statute and regulations together, the Benders argue that Southtowne was required to give notice on a Georgia form prior to the sale of the vehicle and to give them the form at the time it was signed. Further, they argue that pursuant to OCGA § 10-1-790 (a), Southtowne’s failure to comply with these rules constituted a per se violation of the FBPA enforceable by them in this private lawsuit.

We agree with the Benders that the rules and regulations do in fact impose these additional requirements on Southtowne, and it is clear that violators may be subject to an enforcement action by the Attorney General. We cannot agree, however, that the failure to follow the regulations authorizes a private party to bring a cause of action asserting a FBPA claim against the violator. Under the plain language of the Georgia Lemon Law, the only violation of the Georgia Lemon Law that authorizes a private party to bring a FBPA claim is the failure to give the disclosures requiredby OCGA § 10-1-790 (a). And OCGA § 10-1-790 (a) (1) requires only plain and conspicuous written notice; there is no requirement that the notices required by subsection (a) be given on a particular form. Likewise, there is no requirement that the form be given to the purchaser, and no particular timing requirement, as long as notice is provided before the sale of the vehicle is complete. Further, the fact that the statute specifically authorizes the enactment of the rules and regulations to implement and enforce the provisions of the statute does not mean this language can be read more expansively than the plain terms allow. Even where a rule is authorized, it must not exceed the scope of or be inconsistent with the authority of the statute upon which it is predicated. Ga. Dept. of Community Health v. Dillard, 313 Ga. App. 782, 785 (1) (723 SE2d 23) (2012). Reading the statutory provisions together, it does not appear that the legislature intended to authorize retail purchasers to bring private causes of action under the FBPA against transferors who clearly and conspicuously disclose at the time of sale that they are selling a manufacturer buyback vehicle, but simply fail to do so on a particular form or fail to give the form to the purchaser once they have signed it.

Apart from Southtowne’s failure to use the proper form, the Benders also contend that Southtowne violated OCGA § 10-1-790 (a) by failing to give them notice of the one-year, 12,000 mile warranty to cover the nonconformities. We first note that the statute does not specify what notice must be given about the warranty, and the Benders do not dispute that upon inquiry, they were correctly told that HMA had already corrected the defects listed in the Illinois Disclosure Form. Nor have the Benders produced any evidence to support a claim that the warranty was not in effect had they experienced any problems with the defective parts of the vehicle.

Accordingly, for the foregoing reasons, the trial court’s grant of summary judgment on the Benders’ claims under the Georgia Lemon Law and the FBPA must be affirmed.

2. Next, the Benders contend that the trial court erred by granting summary judgment on their claim for fraud and deceit “where the dealer not only provided false information but also was under an affirmative statutory obligation to provide full information,” pointing to Bush’s claim that he had seen the Carfax report and it was clean in response to their specific inquiry, and other “affirmative statements” presumably referring to Bush’s statement that the car was a great deal because it was a lease turn-in.

To prevail on a claim for fraud and deceit, a plaintiff must show: (1) a false representation by the defendant; (2) scienter; (3) intention to induce the plaintiff to act or to refrain from acting; (4) justifiable or reasonable reliance; and (5) damage. Paulk v. Thomasville Ford Lincoln Mercury, 317 Ga. App. 780, 782 (1) (732 SE2d 297) (2012); see also Raysoni v. Payless Auto Deals, LLC, 296 Ga. 156 (766 SE2d 24) (2014). Thus, to make out a claim of fraud, a plaintiff generally must show both reliance upon a misrepresentation and that the reliance was reasonable and not the product of alack of due diligence. Id.; Edel v. Southtowne Motors of Newnan II, Inc., 338 Ga. App. 376, 380 (3) (789 SE2d 224) (2016).

The Benders argue that because this case involves the breach of an affirmative statutory duty to disclose, not just a “simple misrepresentation,” justifiable reliance may be shown simply by demonstrating a failure to disclose those matters required by law to be disclosed. However, as set forth in Division 1, Southtowne made the disclosures required by OCGA § 10-1-790 that the vehicle had been repurchased by the manufacturer because of certain defects, and the Benders have not pointed to any Georgia law that requires disclosure of a “branded” certificate of title issued in another state, which is presumably the additional information which would have been disclosed in the Carfax report. Accordingly, even assuming the salesperson may have misrepresented that he had seen the Carfax report and it was “clean,” the Benders have not supported their contention that there was an affirmative duty to disclose that the title was branded. Nor is there any merit to the Benders’ argument that the dealer placed himself in a confidential relationship with them by agreeing to act on their behalf in transferring the title of the vehicle. See Phillips v. Atlantic Bank & Trust Co., 168 Ga. App. 590, 591-92 (3) (309 SE2d 813) (1983) (“Creditors deal with debtors at arm’s length, and do not stand in a fiduciary capacity in relationship to the debtor.”).

But the Benders can still make out a claim for fraud if they show they reasonably relied on the salesperson’s misrepresentations that the Carfax report was “clean” and that the vehicle was a lease turn-in, when in fact the vehicle was a manufacturer buyback and the Texas title was branded. The Benders are correct that generally reasonable reliance must be determined by the factfinder, as our appellate courts have had occasion to reiterate in three recent cases which also involved alleged misrepresentations made during the sale of an automobile. Raysoni, 296 Ga. at 156-57; Edel, 338 Ga. App. at 381 (3); Alvear v. Sandy Springs Toyota, Inc., 332 Ga. App. 798, 799 (775 SE2d 172) (2015) (physical precedent only). For example, in Raysoni, the buyer questioned the dealer concerning whether the minivan he wanted to buy had ever been in an accident and was assured by the salesperson that it had not. The plaintiff then asked to see a Carfax report, which confirmed what he had been told. Raysoni, 296 Ga. at 158. Similarly, in Edel, a representative of the car dealer told the buyers that the vehicle had not been in an accident and showed them a Carfax report which revealed no accidents. 338 Ga. App. at 376. And in Alvear, the buyer was provided with an odometer disclosure statement that misstated the mileage on the car he purchased, and when he asked the salesperson about the car’s low mileage, she emphasized that feature of the car. 332 Ga. App. at 801-02 (1).

Here, the salesperson told the Benders that he had seen the Carfax report and it was clean, and that the vehicle was a lease turn-in, which for the purposes of summary judgment we construe against Southtowne. Under the Georgia fraud statute, a “reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know such facts are false.” OCGA § 51-6-2 (b); Alvear, 332 Ga. App. at 801 (1). And Lindsey Bender explained that when she was confronted with the Illinois Disclosure Form, she thought it confirmed Bush’s statement that the car was a great deal because it was a lease turn-in, and her understanding that “[w]ith a lease turn-in you hand back the keys and it goes back to the company.” Further, although the Benders signed certain documents disclaiming “verbal promises,” the statements made to them were not “promises” but rather misrepresentations about the condition of the vehicle. And the “merger clause” stating “This contract contains the entire agreement . . . relating to this contract” was preceded in bold caps with the heading “HOW THIS CONTRACT CAN BE CHANGED” and simply required changes to the terms of the sale of the vehicle to be in writing. The contract said nothing about the status or history of the vehicle. See Edel, 338 Ga. App. at 381 (3); Campbell v. Beak, 256 Ga. App. 493 (568 SE2d 801) (2002) (vehicle being sold “as is” does not require different, result on question of diligence when nothing placed plaintiff on notice he was being deceived).

Under these facts, we cannot say that reliance on the salesperson’s misrepresentations was rendered unreasonable as a matter of law by the merger clause or disclaimer. See Raysoni, 296 Ga. at 159; Edel, 338 Ga. App. at 381 (3); Alvear, 332 Ga. App. at 801-02 (1). Whether the Benders could have by proper diligence discovered that the salesperson was not telling the truth, or whether they were as diligent as the circumstances warranted, must be determined by a jury Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 82-83 (1) (663 SE2d 779) (2008); see also Catrett v. Landmark Dodge, Inc., 253 Ga. App. 639, 641 (1) (560 SE2d 101) (2002) (jury must decide whether buyer justifiably relied on salesperson’s statement that the vehicle was a “demonstrator” and thus considered a “new” car, when the documentation he saw was conflicting and he could have believed the used language simply referred to the use by the dealership). As issues of fact remain, summary judgment on this claim must be reversed.

3. Lastly, the Benders contend the trial court erred by granting summary judgment on their claim for revocation of acceptance under OCGA § 11-2-608. That section provides:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it:
(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) Abuyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.

As to the timeliness of their revocation, the Benders point to their letter dated October 24, 2012, which was sent to Southtowne approximately six weeks after Cory became aware of the branded Texas title during his visit to the Lexus dealership, and argue that a jury should determine if their revocation occurred within a reasonable time. Further, because Southtowne rejected their revocation, they assert that a jury must also determine whether their continued use of the vehicle constituted a “reacceptance” after revocation. Edel, 338 Ga. App. at 378 (1) (“[r]evocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods”) (citation and punctuation omitted); Mauk v. Pioneer Ford Mercury, 308 Ga. App. 864, 867 (2) (709 SE2d 353) (2011) (factfinder must decide whether revocation was timely and whether buyer reaccepted goods after revocation). Pretermitting these issues, the record shows that Southtowne disclosed the vehicle’s “nonconformity” to the Benders, the Benders purchased the car with actual knowledge of the listed defects, the defects had been successfully repaired prior to purchase, and the Benders did not notice any performance issues attributable to the defects even though Cory Bender drove the car on a regular basis. Although the Benders later learned the Texas title also contained a notation that the Genesis was a manufacturer buyback, their discovery does not change these facts, and nothing changed about the condition of the vehicle after their acceptance that would warrant revocation based on any alleged “nonconformity” The only assurance that the dealer apparently gave the Benders about these defects was that the repairs had been made, which appears to have been true. Accordingly, the trial court did not err by granting summary judgment to the appellees on this claim. Edel, 338 Ga App. at 378-79 (1) (summary judgment proper where buyers should have known about the vehicle’s buyback status when they signed disclosures day after the vehicle was purchased but waited over a year to revoke acceptance); Paulk, 317 Ga. App. at 785 (4) (summary judgment proper where plaintiffs noticed defects prior to purchasing the vehicle but drove car thousands of miles before attempting to revoke acceptance); Bicknell v. B & S Enterprises, Inc., 160 Ga. App. 307, 309 (2) (287 SE2d 310) (1981) (“[gjiven the ease with which the plaintiff could have discovered the alleged nonconfor-mance, . . . she had no grounds to revoke her acceptance of the automobile”).

Decided November 15, 2016.

T. Michael Flinn, for appellants.

Cruser & Mitchell, J. Robb Cruser, Kathleen M. Hurley; McCullough, Payne & Haan, John G. McCullough, Jeremy T. McCullough, for appellees.

Samuel S. Olens, Attorney General, Anne S. Infinger, Deputy Attorney General, Charlene R. Swartz, Assistant Attorney General, Britt C. Grant, Solicitor-General, amici curiae.

Judgment affirmed in part and reversed in part. McFadden, J., concurs.

Miller, P. J., concurs fully in Divisions 1 and 3 and in judgment only as to Division 2.

       Under the Georgia Lemon Law, a
      “[njonconformity” means a defect, a serious safety defect, or a condition, any of which substantially impairs the use, value, or safety of a new motor vehicle to the consumer or renders the new motor vehicle nonconforming to a warranty. A nonconformity does not include a defect, a serious safety defect, or a condition that is the result of abuse, neglect, or unauthorized modification or alteration of the new motor vehicle.
      OCGA § 10-1-782 (17).

       Ally financed the purchase of the vehicle.

       The Benders also brought claims for breach of implied warranty of merchantability; breach of warranty of title; and Ally’s violation of Federal Trade Commission Rules. The Benders do not enumerate any error regarding the grant of summary judgment on these claims and, accordingly, they are waived on appeal. OCGA § 5-6-40; Smith v. Saulsbury, 286 Ga. App. 322, 323 (1) (a) (649 SE2d 344) (2007); Dole v. State, 256 Ga. App. 146, 148 (2) (567 SE2d 756) (2002).

        Vernon v. Assurance Forensic Accounting, LLC, 333 Ga. App. 377, 378 (774 SE2d 197) (2015).

       The form listed an inoperative front window and an inoperative back up camera as the nonconformities that precipitated the buyback by HMA.

       Lindsey testified that the documents were signed in a hurry because it was past the normal closing time for the dealership, but no evidence was presented that they were prevented from taking more time to read the form.

       Although the Georgia Lemon Law disclosure form states that “I understand that... if I purchase or lease [the reacquired vehicle], I will be given this original Notice, and not a copy,” Cory was not given the original or a copy of the form at the time he signed it.

       The manager apparently was referring to the original Texas title for the vehicle, which contained the notation “Manufacturer Buyback.” The Georgia certificate of title did not contain any notation that the vehicle had been repurchased by the manufacturer, and neither the Georgia Lemon Law nor the Georgia Motor Vehicle Certificate of Title Act (“Title Act”), OCGA § 40-3-1 et seq., require motor vehicle titles issued in Georgia to denote that a vehicle has been repurchased by the manufacturer, although the Title Act does require titles to be branded in instances of “salvage” or “rebuilt” vehicles. See OCGA § 40-3-36 (d).

       The Benders testified that the first time they actually saw the Texas title was after this lawsuit was filed.

       A slight, nonsubstantive amendment was made to the law in 2015 but does not affect our analysis in this case. See Ga. L. 2015, pp. 1088, 1147, § 8.

       “Attorney General” was substituted for “administrator” in a 2015 amendment. Although this change occurred after the purchase of the Genesis, for ease of reference we will use “Attorney General.”

       As used in the Georgia Lemon Law,
      “consumer” means . . . : (A) A person who purchases or leases a new motor vehicle for personal, family, or household use and not for the purpose of selling or leasing the new motor vehicle to another person; and (B) A person who purchases or leases ten or fewer new motor vehicles a year for business purposes other than limousine rental services.
      OCGA § 10-1-782 (5).

       A “new motor vehicle” is defined in OCGA § 10-1-782 (15) as “any self-propelled vehicle primarily designed for the transportation of persons or property over the public highways that was ... purchased ... in this state by the consumer or lessor to whom the original motor vehicle title was issued.” Pursuant to OCGA § 10-1-784 (b) (3), purchasers or lessors of nonconforming new motor vehicles that have not been repaired after a reasonable number of attempts have the option of requiring the manufacturer to repurchase or replace the vehicle. The Georgia Lemon Law does not require manufacturers to buy back a vehicle that has changed hands from the original, first-title purchaser.

       In this particular case, the manufacturer bought back the vehicle in Texas, and Southtowne purchased the vehicle on January 10, 2012, at a “closed” auction, in which only franchised Hyundai dealers or their agents were permitted to buy the vehicles offered for sale, which included “Lemon Law and vehicles voluntarily repurchased by HMA.” Pursuant to the written “Auction Sales Policies and Procedures,” Hyundai dealers who purchased vehicles at the auction were required to acknowledge they were purchasing a buyback vehicle by signing a notice of nonconformity and had to agree that only they, the dealer, would sell the vehicle to the “ultimate consumer.” Further, the Auction Policies required the dealer to “bear[ ] sole responsibility for providing full disclosure to the ultimate consumer and securing purchaser’s acknowledgment by signing the Notice of Nonconformity Statement provided,” which in this case was the Illinois Disclosure Form. The Illinois Disclosure Form also provided that “[t]he signature of the dealer representative constitutes agreement by the dealer that disclosure of the above information will be made to the retail customer at the time of sale of this vehicle as provided by law in the state in which it is resold.”

       A “reacquired vehicle” is defined as “a new motor vehicle with an alleged nonconformity that has been replaced or repurchased by the manufacturer!.]” OCGA § 10-1-782 (21). A “ ‘new motor vehicle’ does not include any vehicle on which the title and other transfer documents show a used, rather than new, vehicle.” OCGA § 10-1-782 (15).

       The trial court found that the notice given on the Illinois Disclosure Form complied with the “purpose” of the disclosure requirements. We note that the notice given on the Georgia Lemon Law Disclosure Form was sufficient, but this notice was not timely provided to the Benders.

       There does not appear to be any issue here concerning whether the repairs had actually been made, and the Benders apparently never experienced any problems attributable to the “defects” in the vehicle.

       The Benders incorrectly quote the version of the regulation currently in effect, which makes reference to the form specified in Ga. Comp. R. & Regs., r. 122-23-.01. Although the prior version omitted this specific reference, it is clear that this is also the “form” referred to in the regulation in effect at the time the Benders purchased the Genesis.

       The Benders and the Attorney General in his amicus brief seem to suggest that notice be given prior to the time the sale has been agreed to and the paperwork is being signed, not contemporaneous with the signing of the purchase papers.

       Without elaborating, the Benders also assert that failure to notify them of the branded Texas title violated certain federal odometer laws and OCGA § 11-2-312 respecting title warranties. Pretermitting whether these arguments were raised below, the text of these statutes does not support their argument.

       We note that while OCGA § 10-1-792 (a) provides: “Except as provided in subsection (a) of Code Section 10-1-790, this article shall not create or give rise to any cause of action by . . . consumers against new motor vehicle dealers,” that section specifically carves out violations of OCGA § 10-1-790 (a), which subjects violators to consumer actions.

       This is in contrast to subsections (c) and (d) of that section, which impose additional requirements on a manufacturer who sells a vehicle after reacquisition, including the use of “forms approved by the Attorney General.” OCGA § 10-1-790 (d). If the legislature had intended disclosures by parties other than the manufacturer to be made on a particular form, clearly it could have said so.

       The Benders have not pointed us to the page in the record where the Carfax report noting the Texas branded title can be found, and we have not found it upon our review. We note, however, their expert submitted an affidavit stating that the Carfax report included information that the Texas title carried the warning “Manufacturer Buyback or Lemon Reported),] ” and the appellees do not appear to dispute that the Carfax would have noted that the Texas title was so branded. In any event, we will assume for the sake of this appeal that the Carfax would have disclosed the branded Texas title.

       For this reason, a jury must decide whether the representations were false and made with knowledge they were false. Alvear, 332 Ga. App. at 801-02 (1).

       We note that the “AS IS” clause on the sales agreement was not initialed.


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A16A0945.
    THE MAYOR AND ALDERMEN OF THE CITY OF GARDEN CITY v. HARRIS et al.
    (793 SE2d 628)
   Ellington, Presiding Judge.

Willie and Kristy Harris, individually and on behalf of their minor daughter, Riley Harris, sued The Mayor and Aldermen of the City of Garden City (the “City”) seeking to recover damages arising from injuries Riley suffered when, while attending a youth football game at a stadium owned and operated by the City, she fell through the bleachers. The City moved for summary judgment on the grounds, inter alia, that it was immune from liability under the Recreational Property Act, OCGA § 51-3-20 et seq. (the “RPA”), because the stadium was available to the public for recreational purposes. The trial court denied the City’s motion, finding that, because the stadium was not open to the general public at no charge, the RPA did not protect the City from liability This Court granted the City’s application for leave to file an interlocutory appeal. For the reasons set forth below, we agree with the trial court and affirm.

On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmov-ing party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. Our review of the grant or denial of a motion for summary judgment is de novo.

(Citation and punctuation omitted.) Nguyen v. Southwestern Emergency Physicians, 298 Ga. 75, 82 (3) (779 SE2d 334) (2015).

So viewed, the record shows that on November 10, 2012, the Harris family, including Willie and Kristy Harris and their daughter, Riley, attended a youth football game at the Garden City Stadium, a facility owned and maintained by the City The only entrance to the stadium, which was surrounded by a gate on which was placed a “no trespassing sign,” was through a gate adjacent to the ticket booth. Spectators over the age of six were charged an admission fee in the amount of $2 for an adult and $1 for a student. The Harrises paid the fee for themselves and one of their older children. As Riley and her sister were then six years old, they were admitted without charge.

During the game, Riley and her siblings left their seats on the upper section of the stadium’s bleachers to visit the concession stand. Riley bought a pickle and walked back toward her seat. As she was walking across the bleachers, she slipped and fell between the bench seats and to the ground below, suffering injury

The Harrises, individually and on behalf of Riley, filed this personal injury action against the City asserting claims for premises liability, negligence, and negligence per se. The City moved for summary judgment on the ground that, among other things, it was shielded from liability by the RPA. The trial court denied the City’s motion, but certified its order for immediate review.

The City contends that the trial court erred in ruling that the RPA did not bar the Harrises’ claims. “The purpose of [the RPA] is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” OCGA § 51-3-20. Under the RPA, except as provided in OCGA § 51-3-25, “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.” OCGA § 51-3-22. Further, except as provided in OCGA § 51-3-25,

... an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby: (1) Extend any assurance that the premises are safe for any purpose; (2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or (3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

OCGA § 51-3-23. As relevant here, the charge exception to the RPA, OCGA § 51-3-25 (2), provides that “[njothing in this article limits in any way any liability which otherwise exists . . . [fjor injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use thereof[.j”

Generally, “[wjhether the RPA applies to limit the liability of the owner of a certain property at a certain time is a question of law for the trial court.” (Citation and punctuation omitted.) Ga. Dept. of Transp. v. Thompson, 270 Ga. App. 265, 267 (1) (606 SE2d 323) (2004). Here, the parties agree that the spectators at the football game, including the Harris family, were using the stadium for a recreational purpose within the meaning of the RPA. See Spivey v. City of Baxley, 210 Ga. App. 772, 774-775 (437 SE2d 623) (1993) (The RPA applied to spectators at an athletic event when no admission charge was imposed.). At issue is whether the charge exception to the RPA, OCGA § 51-3-25 (2), nevertheless precluded application of the RPA under the facts of this case. The City contends that the charge exception applies only to a guest who is charged to enter the property and that, as it is undisputed that Riley was not assessed a fee to enter the stadium, the charge exception does not bar the City’s immunity under the RPA. The City further contends that its collection of nominal fees from the other entrants was not a disqualifying charge for purposes of the RPA.

We first address whether the fee imposed by the City to access the stadium was a charge for purposes of the RPA. Under the RPA, a “charge” is defined as “the admission price or fee asked in return for invitation or permission to enter or go upon the land.” OCGA § 51-3-21 (1). Although the amount was nominal, the City nevertheless required members of the public to pay to enter the stadium, and so the fee imposed falls squarely within the statutory definition of a “charge.” The City argues that its collection of “incidental revenue from the recreational area” does not deprive it of the protection of the RPA. While we have found that some fees paid by users of recreational property do not constitute a “charge” under the RPA, in those cases the payment of the fee was not, as here, a requirement for entry onto the facility where the injury occurred. See, e.g., South Gwinnett Athletic Assn. v. Nash, 220 Ga. App. 116, 117-118 (1) (469 SE2d 276) (1996) (The RPA provided immunity from liability for injuries suffered by a person who entered a ballpark free of charge asa spectator. The charge exception did not apply as a result of the little league registration fee imposed by the defendant where the fee was used to provide teams the necessities of playing in the league, including uniforms and umpires, and so did not constitute an “admission price or fee” for entry onto the land.); Quick v. Stone Mountain Mem. Assn., 204 Ga. App. 598, 599 (420 SE2d 36) (1992) (RPAprovided immunity for appellant’s claims as her “alleged injuries resulted from her general recreational usage of the park premises, for which no fee was charged, rather than from the use of any of the facilities for which a fee was charged.”) (citation and punctuation omitted); Hogue v. Stone Mountain Mem. Assn., 183 Ga. App. 378, 380 (1) (358 SE2d 852) (1987) (A fee for a permit to use a vehicle in the park was not an admission price for entry onto land and, therefore, not a charge for the recreational use of the park.). The City also argues that the fees it collected from use of the stadium were used to defray the maintenance cost of the facility, and that it was not in the business of recreation or entertainment. The charge exception, however, specifically contemplates that it applies when the owner charges for “the recreational use” of the land, without reference to whether the owner was in the business of recreation or was otherwise seeking to profit from the fee. OCGA § 51-3-25. Accordingly, we find the City’s reliance on authorities distinguishing between the commercial and recreational use of property, and which do not rely on the application of the charge exception to the RPA, to be unpersuasive. See, e.g., Cedeno v. Lockwood, Inc., 250 Ga. 799, 801-802 (2) (301 SE2d 265) (1983), disapproved in part on other grounds, Atlanta Committee for the Olympic Games v. Hawthorne, 278 Ga. 116, 118 (1) n. 3 (598 SE2d 471) (2004) (“[T]he fact that no fee is charged does not assure applicability of the [RPA],” such that, if the public is invited onto the property to further the business interests of the owner, such as the sale of food, merchandise, or services, the side benefit to the public in the form of recreation does not shield the owner from liability.). Rather, we conclude that the admission fee charged by the City for entrance into the stadium was a charge within the meaning of the RPA.

The City further contends that, because Riley entered the stadium without payment of an admission fee, it did not owe her a duty of care that is due an invitee or licensee. The City points out that, under the RPA, “an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby . . . [cjonfer upon such person the legal status of an invitee or licensee to whom a duty of care is owed[.]” (Emphasis supplied.) OCGA § 51-3-23 (2). It follows, the City argues, the RPA was satisfied and immunized the City against the Harrises’ claims.

Notwithstanding the City’s suggested construction of OCGA § 51-3-23 (2), an owner is not entitled under the RPA to immunity from liability “[f]or injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use thereof[.]” (Emphasis supplied.) OCGA § 51-3-25 (2). Thus, “[a]s a prerequisite to immunity under the RPA, the owner cannot charge a fee for admission to the property.” (Citation omitted; emphasis supplied.) Cedeno v. Lockwood, Inc., 250 Ga. at 801 (2) (citing OCGA § 51-3-25). In other words, “the RPA applies where the property is open to the public for recreational purposes and the owner does not charge an admission fee.” (Citation omitted.) Gayle v. Frank Callen Boys and Girls Club, 322 Ga. App. 412, 414 (745 SE2d 695) (2013). See Martin v. Dempsey Funeral Svcs. of Ga., 319 Ga. App. 343, 345 (1) (735 SE2d 59) (2012) (“By its plain terms, the RPA requires that the property be used for recreational purposes without charge.”) (citation omitted); Edmondson v. Brooks County Bd. of Ed., 205 Ga. App. 662 (423 SE2d 413) (1992) (“The [RPA] applies if the landowner does not charge a fee for admission and if the property is open to the public for recreational purposes.”) (citation omitted).

Decided November 15, 2016

Oliver Maner, Patrick T. O’Connor, David B. Mullens III, for appellant.

Karsman, McKenzie & Hart, Jeremy S. McKenzie, C. Dorian Britt, for appellees.

Here, notwithstanding that the City chose not to charge very young children, including Riley, to enter the facility, the stadium was not open to the public without charge. Accordingly, we conclude that the trial court correctly denied the City’s motion for summary judgment.

Judgment affirmed.

Branch and Mercier, JJ., concur.

       Even if OCGA § 51-3-23 was not subject to OCGA § 51-3-25, we would find the City’s reading of OCGA § 51-3-23 to be unpersuasive. The City argues that the legislature, by use of the words “any person” in the opening paragraph of OCGA § 51-3-23, and “such person” and “such persons,” in subsections (2) and (3), respectively, tied the reduction in liability afforded to the landowner to the individual person permitted onto the premises without charge. However, the statute provides benefits to the landowner not only under subsections (2) and (3), but under subsection (1), so that “an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby ... (1) Extend any assurance that the premises are safe for any purpose!.]” OCGA § 51-3-23 (1). Thus, subsection (1) provides a broad reduction in liability that is not limited to any specific person. If “any person,” for purposes of OCGA § 51-3-23, refers to an individual person, then by offering free admission to a subset of persons invited on the property, the landowner would be entitled to the protections of OCGA § 51-3-23 (1) regardless of whether the injured party paid or did not pay for admission. The City’s suggested interpretation of OCGA § 51-3-23 runs afoul of the rules of construction which require us to avoid creating a contradiction or absurdity when construing a statute. See, e.g., Judicial Council of Ga. v. Brown & Gallo, LLC, 288 Ga. 294, 297 (702 SE2d 894) (2010) (“[T]he golden rule of statutory construction requires us to follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to [ejnsure that the legislature meant something else.”) (citation and punctuation omitted).


author: Boggs, Judge. BARNES, Presiding Judge,

text:
    A16A0978.
    RICHARDSON v. LOCKLYN.
    (793 SE2d 640)
   Boggs, Judge.

Freida Latrice Richardson appeals the trial court’s denial of her motion for attorney fees under Georgia’s “offer of settlement statute,” OCGA § 9-11-68. For the reasons that follow, we vacate the judgment and remand this case for an evidentiary hearing on the request for attorney fees pursuant to that Code section.

In May 2014, Quandra Nicole Locklyn sued Richardson for damages allegedly arising from a 2012 automobile collision. Specifically, Locklyn sought recovery for her medical bills, lost wages, and pain and suffering. During discovery, Locklyn produced medical bills totaling $18,927.25. The bills covered ambulance services and hospital care that she received on the day of the collision, as well as further medical treatment that she sought later. In July 2014, Richardson sent Locklyn a formal offer under OCGA § 9-11-68 to settle her claims for $12,500. Locklyn rejected the offer.

At trial, Richardson stipulated to her liability, but she disputed the extent of Locklyn’s injuries and whether those injuries were caused by the collision. Locklyn testified that she felt pain in her leg and head immediately after the collision, was given arm and neck braces in the emergency room, and subsequently followed up with specialists. She claimed that she had ongoing pain and numbness in her hands and feet as a result of the collision. Locklyn presented no evidence concerning any lost wages.

On cross-examination, Locklyn admitted that she had been “disabled” for the past five years for other reasons, that she had suffered a lower back injury in 2010, and that she had been in a single-car accident in 2013. Locklyn called no expert or lay witnesses to provide any further evidence about the nature or cause of her injuries. The jury returned a $6,948.25 verdict for Locklyn, which was the total amount of her bills for ambulance services and hospital treatment on the day of the collision.

After trial, Richardson filed a motion for attorney fees and litigation expenses pursuant to OCGA § 9-11-68, based on Locklyn’s rejection of her settlement offer. Locklyn filed a response to the motion asserting that the offer was not made in good faith “based on medical expenses incurred and the liability of [Richardson].” Richardson did not respond to Locklyn’s assertion that the offer of settlement was not made in good faith, and the trial court subsequently denied her motion for attorney fees pursuant to OCGA § 9-11-68, ruling as follows:

[A]t the time the Defendant made the settlement offer of $12,500, the Plaintiff’s medical expenses were $18,927.25, exceeding the offer. This amount was known to the Defendant at the time of the offer and disclosed during the discovery period and was not a reasonable offer or a realistic assessment of liability Additionally, the Defendant stipulated to liability at trial and thus there were no issues of liability in dispute. For the foregoing reasons, the Court finds that the offer to settle made by the defendants [sic] was not in good faith based upon the overall record and evidence presented at trial.

Richardson appeals.

If a defendant makes a written offer to settle a tort claim in accordance with OCGA § 9-11-68 (a), and the plaintiff rejects the offer,

the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

(Emphasis supplied.) OCGA § 9-11-68 (b) (1). If the defendant provides proof to the court that the foregoing provision applies to the judgment, then the court “shall order the payment of attorney’s fees and expenses of litigation.” (Emphasis supplied.) OCGA § 9-11-68 (d) (1). The court, however, may disallow an award of otherwise eligible fees and expenses if it “determine[s] that an offer was not made in good faith in an order setting forth the basis for such a determination.” OCGA § 9-11-68 (d) (2).

It is undisputed that Richardson was entitled to an award of attorney fees and expenses under OCGA § 9-11-68 (b) (1) because Locklyn’s jury verdict was less than 7 5 percent of the settlement offer. Nonetheless, the trial court declined to enter such an award because it concluded that Richardson’s offer was not made in good faith based upon the relationship between the amount of the offer and Locklyn’s medical expenses, as well as Richardson’s admission of liability Whether these objective factors are sufficient to support a finding of a lack of good faith is problematic given that good faith is not defined in the statute and there is a dearth of case law in Georgia interpreting its meaning.

Georgia’s offer of settlement statute, part of the Tort Reform Act of 2005, is modeled after Florida’s offer of judgment statute, Fla. Stat. § 768.79, and both statutes authorize a trial court to disallow attorney fees based upon a finding that an offer was not made in good faith. See Merritt E. McAlister, “The Swift, Silent Sword Hiding in the (Defense) Attorney’s Arsenal: The Inefficacy of Georgia’s New Offer of Judgment Statute as Procedural Tort Reform,” 40 Ga. L. Rev. 995, 1010-1011 (III) n. 61 (2006); Fla. Stat. § 768.79. We therefore look to our sister state for guidance in its application. Cf. Zaldivar v. Prickett, 297 Ga. 589, 598-599 (1) (774 SE2d 688) (2015) (considering “judicial understandings” of other jurisdictions with apportionment statutes similar to that of Georgia). Florida courts have held that

[wjhether the offeror has good faith rests on whether the offeror has a reasonable foundation on which to base the offer. So long as the offeror has a basis in known or reasonably believed fact to conclude that the offer is justifiable, the good faith requirement has been satisfied. In the context of a nominal offer of judgment, this court has held that where the offeror has a reasonable basis to believe that exposure to liability is minimal, a nominal offer is appropriate. Whether the offeror has a reasonable basis to support the offer is determined solely by the subjective motivations and beliefs of the offeror. In making this determination, the trial court is not restricted to the testimony of the offeror attesting to good faith; rather, the court may properly consider objective evidence of facts and circumstances that suggest whether the offeror made the offer with subjective good faith.

(Citations and punctuation omitted.) Arrowood Indem. Co. v. Acosta, Inc., 58 So3d 286, 289 (Fla. Ct. App. 2011). See also Gawtrey v. Hayward, 50 So3d 739 (Fla. Ct. App. 2010); Gurney v. State Farm Mut. Auto., 889 So2d 97 (Fla. Ct. App. 2004). “Several types of objective evidence have been found relevant to a finding of good faith,” Arrowood, supra, including (1) whether “the offer bore no reasonable relationship to the amount of damages or [(2)] a realistic assessment of liability, or [(3)] that [the offeror] lacked intent to settle the claim.” (Citation omitted.) Allstate Ins. Co. v. Manasse, 715 So2d 1079, 1082 (Fla. Ct. App. 1998). Other examples of objective evidence include whether the offer was made prematurely based upon the amount of discovery completed, see Gawtry, supra, 50 So3d at 743 (III), the plaintiff’s medical records, independent medical examination reports, and the amount of property damage. See Gurney, supra, 889 So2d at 100.

While Florida courts may consider objective evidence, they cannot base a ruling “exclusively on the objective factors.” Arrowood, supra, 50 So3d at 290. Instead, they are “required to consider [the offeror’s] explanation and then determine whether, despite consideration of the objective factors . . . [the offeror] had a subjectively reasonable belief on which to base its offer.” Id. at 290. “The fact that [an] offer was nominal in amount is not necessarily determinative of the issue of good faith.” (Citations omitted.) Gawtry, supra, 50 So3d at 743 (II).

In determining whether a party is entitled to attorney fees pursuant to the offer of settlement statute including whether an offer was made in good faith, a Florida appellate court has required a hearing on the issue. See Schapiro v. Rubinson, 784 So2d 1135, 1137 (Fla. Ct. App. 2005); compare Menchise v. Senterfitt, 532 F3d 1146, 1153-1154 (III) (2) (B) (11th Cir. 2008) (Eleventh Circuit taking position that Schapiro does not require a hearing in a bankruptcy case, but noting “a hearing might be necessary if... the court is inclined to deny a motion for attorney’s fees on the basis of a bad faith offer.”). See also Gawtry, supra, 50 So3d at 742 (I); Gurney, supra, 889 So2d at 100. Additionally, Florida courts have held that the burden is on the offeree, or the person seeking to avoid the payment of attorney fees, to prove the absence ofgoodfaith. Gawtry, supra, 50 So3d at 99-100 (II).

In Bell v. Waffle House, 331 Ga. App. 443, 445 (771 SE2d 132) (2015), our court considered whether a hearing should be required where a party seeks attorney fees pursuant to OCGA § 9-11-68, but we did not decide the issue in light of the fee opponent’s waiver. We now hold that a hearing is required for the trial court to determine whether fees will be awarded pursuant to that Code section.

As explained in Bell,

[w]ith respect to other statutes awarding attorney fees, such as OCGA § 9-15-14, the Supreme Court has held that even in the absence of a hearing requirement in the Uniform Superior Court Rules, a hearing is required in order to enter an award of attorney fees. That is because an oral hearing gives the party opposing attorney fees an opportunity to confront and challenge testimony with regard to the need for, and value of, legal services. Likewise, in the context of an award under OCGA § 14-2-1604, which contains an automatic fee award under certain conditions and also lacks an explicit hearing requirement, this Court has held that a party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services.

(Citations and punctuation omitted; emphasis in original.) Id. And as the Supreme Court of Georgia explained in Williams v. Cooper, 280 Ga. 145, 147 (1) (625 SE2d 754) (2006), “for an award under OCGA § 9-15-14 (b), the conduct of the party against whom an award is sought, and the conduct of that party’s counsel, are considered along with the impact of that conduct on the attorney fees incurred by the opposing party” (Citation omitted.)

Similarly, in the context of a request for attorney fees pursuant to the offer of settlement statute, a hearing should be required so that the party opposing fees has an opportunity to confront and challenge whether the fees a party is entitled to under OCGA § 9-11-68 (b), are “reasonable,” and, if raised, to shoulder its burden to prove the absence of good faith. As stated in Bell, “even where the Code does not require hearings, Georgia’s courts have required hearings because such an award must be supported by evidence-based factual findings.” (Citations omitted.) 331 Ga. App. at 446. And if the trial court determines that an offer was not made in good faith, it must set forth the basis for its determination in a written order. OCGA § 9-11-68 (d) (2). This determination can only be properly made upon the offeree shouldering its burden to show the absence of good faith after the presentation of evidence by the parties concerning the offer and the circumstances of the offer.

For these reasons, we hold that a hearing is required for the award of attorney fees pursuant to OCGA § 9-11-68, which may include, as here, the consideration of whether the offer was made in good faith. Our holding in Bell, supra, 331 Ga. App. at 446, does not require a different result. Although a party may waive a hearing expressly or by conduct, a timely objection to the motion “even without a specific request for a hearing, is generally sufficient to preclude a waiver by conduct of the right to an evidentiary hearing.” (Citation and footnote omitted.) Williams v. Becker, 294 Ga. 411, 413 (2) (a) (754 SE2d 11) (2014). Here, Locklyn filed a response to Richardson’s motion for attorney fees asserting that the offer was not made in good faith, therefore triggering the requirement of a hearing. Richardson’s failure to respond to Locklyn’s assertion of no good faith is of no consequence because the requirement of a hearing was already triggered.

We therefore vacate the judgment and remand this case for a hearing on attorney fees under OCGA § 9-11-68.

We disagree with the dissent that because subsection (e) of OCGA § 9-11-68 provides for a bifurcated hearing, requiring a hearing under subsection (d) is inconsistent with the intent of the legislature. We find no requirement that we must harmonize two completely separate issues covered by the same Code section. Subsections (a) through (d) govern offers of settlement, while subsection (e) governs damages for frivolous claims or defenses. The dissent argues further that the Supreme Court of Georgia has imposed a hearing requirement only where the trial court grants an award of fees. But OCGA § 9-11-68 (b) provides that a party shall be entitled to attorney fees under certain circumstances, therefore, the statute itself anticipates an award of fees. And as explained above, the hearing requirement was triggered by Locklyn’s response. Richardson therefore could not abandon any argument with regard to a hearing on fees. Further, where our courts have announced a new hearing requirement, we remand for application of the requirement. See, e.g., C. A. Gaslowitz & Assoc. v. ZML Promenade, 230 Ga. App. 405, 406 (496 SE2d 470) (1998).

Judgment vacated and case remanded with direction.

Branch, McMillian, Rickman and Mercier, JJ., concur. Barnes, P. J., Miller, P. J., Ellington, P. J., and McFadden, J., dissent.

BARNES, Presiding Judge,

dissenting.

I respectfully dissent from the majority’s opinion holding that the trial court was required to conduct a hearing before denying attorney fees to Richardson under the good faith provision of the offer of settlement statute, OCGA § 9-11-68 (d) (2). The hearing issue was not raised by Richardson on appeal and thus has been abandoned, and even if it had not been abandoned, the statutory language and Supreme Court precedent make clear that a hearing is not required. Furthermore, because the record did not demand a factual finding by the trial court that Richardson’s offer of settlement was reasonable and made in good faith, we should defer to the trial court’s decision declining to award attorney fees and affirm.

As an initial matter, Richardson does not enumerate as error or even argue on appeal that she was entitled to a hearing on her motion for attorney fees under OCGA § 9-11-68. Consequently, Richardson has abandoned any argument that the trial court erred by not holding a hearing. See Abdalla v. Atlanta Nephrology Referral Center, 338 Ga. App. 36, 37-38 (789 SE2d 288) (2016) (declining to address legal argument regarding OCGA § 9-11-68 that was raised in the trial court but not on appeal); 134 Baker St. v. State, 172 Ga. App. 738, 741-742 (5) (324 SE2d 575) (1984) (noting that “grounds raised at trial but not argued before this court are deemed abandoned”); Court of Appeals Rule 25 (c) (2).

However, even if Richardson had not abandoned the hearing issue by failing to raise it here, a hearing is not required before a trial court can grant or deny attorney fees under OCGA § 9-11-68 (d) (2). Requiring a hearing under this subsection is inconsistent with the intent of the legislature as expressed in the plain language and structure of the statute. Significantly, OCGA § 9-11-68 (e), unlike subsection (d), explicitly requires a hearing. The language in subsection (e) makes “clear that the legislature knew how to [require a hearing] when it chose to do so,” and therefore “we must presume that the legislature’s failure to include similar ... language in [subsection (d)] was a matter of considered choice.” (Citation and punctuation omitted.) Deutsche Bank Nat. Trust Co. v. JP Morgan Chase Bank, 307 Ga. App. 307, 311 (1) (b) (704 SE2d 823) (2010). Any other interpretation fails to harmonize the subsections of OCGA § 9-11-68 and renders the language requiring a hearing in subsection (e) mere surplusage, a consequence that clearly should be avoided under our rules of statutory interpretation. See Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 742-743 (152 SE2d 768) (1966) (“All the words of a statute are to be given due weight and meaning,” and “[c]ourts should not so interpret a statute as to make parts of it surplusage unless no other construction is reasonably possible.”).

Additionally, in other contexts where the Supreme Court of Georgia has imposed a hearing requirement on an attorney fees statute, the Supreme Court has held that the requirement applies only where the trial court has granted an award of fees. See Evers v. Evers, 277 Ga. 132, 132 (1) (587 SE2d 22) (2003) (declining to impose hearing requirement where trial court denied motion for attorney fees under OCGA § 9-15-14). Thus, separate and apart from the statutory interpretation issue, Supreme Court of Georgia precedent demonstrates that a hearing is not required in the present case, where the trial court denied the request for attorney fees.

For these combined reasons, the trial court committed no error in declining to award attorney fees to Richardson under OCGA § 9-11-68 (d) (2) without first conducting a hearing. And further, based on the record in this case, it was within the trial court’s sound discretion under the statute to find that Richardson’s offer of settlement was unreasonable and not in good faith.

The decision whether an offer of settlement was reasonable and made in good faith under OCGA § 9-11-68 (d) (2) is a factual determination left to the sound discretion of the trial court, “based on the trial court’s assessment of the case, the parties, the lawyers, and all of the other factors that go into such a determination, which the trial court has gathered during the progress of the case.” Great West Cas. Co. v. Bloomfield, 313 Ga. App. 180, 183 (2) (721 SE2d 173) (2011) (whole court). As we have emphasized, deference by appellate courts is particularly warranted in this context “because trial courts, unlike appellate courts, are familiar with a piece of litigation from its inception, hear first-hand the arguments of counsel, and consider disputed evidence within the context of an entire proceeding.” (Citation and punctuation omitted.) Id.

In light of this highly deferential standard of review, we should affirm the trial court’s decision to exercise its discretion and decline to award attorney fees under OCGA § 9-11-68 (d) (2), based on the court’s factual finding that Richardson’s offer of settlement was unreasonable and not made in good faith. The trial court based its factual finding “upon the overall record and evidence presented at trial,” and the record includes evidence to support that finding, namely, that Richardson admitted negligence for the automobile accident in which the plaintiff was injured but did not make an offer of settlement that at least covered the plaintiff’s medical bills disclosed during discovery.

While Richardson argues on appeal that her offer of settlement made on July 10, 2014 was based on a thorough evaluation of the plaintiff’s medical records and bills disclosed during discovery, Richardson never made this argument to the trial court in her motion for attorney fees, and she submitted no affidavits or other evidence to support it. Richardson merely argued that because the verdict was less than 75 percent of the offer, she was entitled to an award of attorney fees. Moreover, the billing records of Richardson’s counsel that were submitted with the fees motion include no reference to the plaintiff’s medical records and bills being “reviewed, analyzed and summarized” by counsel until after the settlement offer was made. “[I]n the absence of evidence to the contrary, we will presume that the trial court reviewed the entire record,” including the billing records, in reaching its decision that Richardson did not act reasonably and in good faith in making the offer of settlement. (Citation and punctuation omitted.) Clark v. Perino, 235 Ga. App. 444, 450 (3), n. 2 (509 SE2d 707) (1998).

In addition, the fact that the plaintiff ultimately recovered less than the full amount of her requested medical bills later at trial “is not conclusive evidence that [Richardson] acted in good faith.” Great West Cas. Co., 313 Ga. App. at 182 (1). If the legislature had intended for a defense verdict to trigger an attorney fees award automatically, it could have done so, but it did not. While the amount of the verdict is relevant to the issue of good faith, the trial court is entitled to take into account the information available to a defendant at the time the settlement offer was made and all the events that transpired during the case as a whole. Id. And, here, there was some evidence, construed in favor of the trial court’s ruling, that Richardson admitted negligence but made a settlement offer of less than the amount of the plaintiff’s medical bills disclosed during discovery without first having “reviewed, analyzed and summarized” those bills.

Decided November 15, 2016.

Gardner Trial Attorneys, Timothy J. Gardner, Henrietta G. Brown, for appellant.

Blevins & Hong, Richard N. Blevins, Jr.; Crocker Law, Justin T. Crocker, for appellee.

This is simply not a case where the record reveals that the trial court made a clear error of judgment or applied the wrong legal standard, and we cannot reverse the trial court under an abuse of discretion standard simply because “we would have gone the other way had it been our call.” (Citation omitted.) Koules v. SP5 Atlantic Retail Ventures, 330 Ga. App. 282, 285 (2) (767 SE2d 40) (2014). Accordingly, the trial court’s decision not to award attorney fees to Richardson under OCGA § 9-11-68 (d) (2) should be affirmed. Therefore, I respectfully dissent.

I am authorized to state that Presiding Judge Miller, Presiding Judge Ellington, and Judge McFadden join in this dissent.

       OCGA § 9-11-68 (a) sets forth a number of requirements for such offers. Locklyn does not dispute that Richardson’s offer met those requirements.

       OCGA § 9-11-68 (d) (2) provides in full: “If a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney’s fees and costs.”

       Fla. Stat. § 768.79 (6) (a) provides:
      If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served, and the court shall set off such costs in attorney’s fees against the award. When such costs and attorney’s fees total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the award to the plaintiff.
      Section (7) (a) of Fla. Stat. § 768.79 states: “If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees.”

       Florida’s Rule of Civil Procedure 1.442 (Proposals for Settlement), subsection (h) (1), also authorizes a trial court in its discretion to disallow an award of costs and attorney fees even though a party is entitled to them pursuant to Florida law, if it determines that “a proposal was not made in good faith.”

       We have found no Florida law in our research from which it can be determined that the trial court did not hold a hearing on a motion for attorney fees pursuant to Fla. Stat. § 768.79.

       Such circumstances could include settlement negotiations. See OCGA § 24-4-408 (specifically excluding OCGA § 9-11-68 from nonadmissible offers of compromise).

       We note that it appears that the trial court arguably considered only objective factors, the amount of the offer and potential liability, which a Florida Court of Appeals has held was error. As explained supra, the trial court is required to consider the offeror’s explanation and then determine whether, despite consideration of the objective factors, the offeror had a subjective reasonable belief on which to base the offer. See Arrowood, supra, 58 So3d at 290.

       While we conclude here that we should remand this case for a hearing on attorney fees pursuant to the offer of settlement, we note that the dissent places much emphasis on the fact that Richardson never made the argument in her motion for fees that her offer of settlement was based on a thorough evaluation of Locklyn’s medical records and bills disclosed during discovery and that Richardson merely argued that she was entitled to attorney fees because the verdict was less than 75 percent of the offer. But this is all that is required to trigger the award of fees under subsection (b) (1) (“the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant ... if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement” (emphasis supplied)); nothing more. And while the dissent argues that the billing records of Richardson’s counsel did not include a reference to Locklyn’s medical records andbills being reviewed and analyzed until after the settlement offer was made, the statute allows only fees and expenses “incurred . . . from the date of the reject ion of the offer . . . through the entry of judgmentsee OCGA § 9-11-68 (b) (1), and the records submitted by counsel cover the time frame between the offer and rejection and the jury verdict. This evidence therefore does not demand a conclusion that counsel did not consider these items prior to making the offer. And indeed the parties were anticipating a trial following Locklyn’s denial of Richardson’s offer which would likely include a review of Locklyn’s medical records and bills.

       OCGA § 9-11-68 (e) provides in part:
      Upon motion by the prevailing party at the time that the verdict or judgment is rendered, the moving party may request that the finder of fact determine whether the opposing party presented a frivolous claim or defense. In such event, the court shall hold a separate bifurcated hearing at which the finder of fact shall make a determination of whether such frivolous claims or defenses were asserted and to award damages, if any, against the party presenting such frivolous claims or defenses. . . .
      (Emphasis supplied.)


author: McFadden, Judge.

text:
    A16A1174.
    HAFEEZ v. THE STATE.
    (793 SE2d 632)
   McFadden, Judge.

After a jury trial, Adnan Hafeez was convicted of aggravated assault and armed robbery. He appeals, arguing that the trial court erred by denying his motion for new trial under OCGA §§ 5-5-20 and 5-5-21 because the verdict is contrary to evidence and the principles of justice, that the trial court abused his discretion in admitting still photographs printed from a surveillance video recording, and that the court abused his discretion in admitting hearsay testimony Hafeez has not shown an abuse of discretion in any one of these instances. Hafeez also argues that trial counsel was ineffective, but he has not shown that trial counsel’s performance was both deficient and prejudicial. We therefore affirm.

1. Evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “[T]he evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. . . Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citations omitted). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

So viewed, the evidence shows that on the evening of October 16, 2010, a man wearing a neon green and black motorcycle helmet, a gray hooded sweatshirt with a symbol on it, and jeans with distinctive holes in them entered a Phillips 66 convenience store in Paulding County The man asked the cashier for a cigar, and when the cashier opened the cash drawer to get change, the man pointed a gun at him and demanded all the money The cashier gave him about $200. The state played a surveillance video for the jury and introduced multiple photographs taken from the video. The store’s cashier identified the man who robbed him from one of the photographs. Hafeez’s appeal involves his convictions arising from this October 16, 2010 robbery

Two days before the October 16 robbery, on October 14, 2010, a man wearing a gray hooded sweatshirt with a symbol on it, jeans with distinctive holes in them, and a green motorcycle helmet had robbed at gunpoint the cashier of a Chevron convenience store in the city of Austell in Douglas County The store’s surveillance video captured the robbery, and the state introduced a photograph taken from that video that showed the robber wearing a motorcycle helmet identical to the helmet worn by the person who robbed the Paulding County Phillips 66 on October 16.

A week after the robbery of the Austell Chevron, on October 21, 2010, the cashier at a Cobb County Shell convenience store called the police because a customer told him someone wearing blue jeans, a hooded sweatshirt, and a motorcycle helmet was lurking behind the store. The call was remarkable to the police officer who responded because that description matched the description of the robber of the Austell Chevron convenience store on October 14, 2010. When he arrived at the Cobb County Shell store, the officer saw Hafeez, who matched the description the cashier gave as well as the description of the robber of the Austell Chevron store. The officer detained Hafeez. A dashboard camera recording of the encounter was played for the jury and showed that Hafeez was wearing clothes identical to the clothes worn by the person who robbed the Paulding County Phillips 66 on October 16.

Backup arrived, including an officer who had responded to the robbery of the Austell Chevron store and who determined that Hafeez was the person he had seen in the video of the robbery of that store the week before. The officers located what they thought to be a pistol leaning against the back of the Shell building, but it was actually an Airsoft gun.

Hafeez eventually pleaded guilty to robbery by force as a lesser included offense of the October 14, 2010 armed robbery of the Austell Chevron store.

The trial court admitted evidence of this plea in the instant trial involving the October 16, 2010 Paulding County robbery.

This evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Hafeez was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. at 307. Further, “whether to grant a new trial under [OCGA § 5-5-20 or § 5-5-21] is a matter solely in the discretion of the trial court. And, no abuse of that discretion has been shown.” Perdue v. State, 298 Ga. 841, 844 (2), n. 5 (785 SE2d 291) (2016) (citation omitted).

2. Photographs from the videotape.

Hafeez argues that the trial court erred by admitting the photographs taken from the surveillance video of the October 16 robbery at issue because the admission of the photographs violated the best evidence rule and the photographs were cumulative of the video. We disagree.

The best evidence rule is statedinOCGA § 24-10-1002: “To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.” Here, the state admitted the video tape itself, so the admission of photographs extracted from that tape presents no best evidence concerns. See Paul S. Milich, Ga. Rules of Evidence § 8:1 (Among other issues, the best evidence rule applies to determine “when are copies of a writing or recording admissible in lieu o/the original.”) (emphasis supplied).

As for Hafeez’s argument that the trial court erred by admitting the photographs because they were cumulative, “[generally, the admission of cumulative evidence is harmless. And here, [Hafeez] failed to demonstrate how the admission of these photographs was prejudicial. Thus, [his] claim that the admission of this cumulative evidence constituted reversible error lacks merit.” Tyner v. State, 313 Ga. App. 557, 560 (2) (722 SE2d 177) (2012) (citation and punctuation omitted).

Finally, Hafeez has abandoned his enumeration of error that the court erred by allowing the photographs to go back with the jury because he makes no argument in support of it. See Court of Appeals Rule 25 (c) (2). See also Murphy v. Murphy, 330 Ga. App. 169, 173 (4) (767 SE2d 789) (2014).

3. Hearsay.

Hafeez argues that the trial court erred by allowing the cashier of the Cobb County Shell store to testify that a customer told him someone was lurking behind the store. Hafeez argues that this testimony was hearsay We disagree.

The state offered this testimony, not to prove that someone was lurking behind the store, but to explain why the cashier called the police. “Because the evidentiary value of the statements did not rest upon whether the declarant was being truthful or honest, the trial court did not err in overruling [Hafeez’s] general objection to the statements on hearsay grounds.” Brown v. State, 332 Ga. App. 635, 637-638 (1) (774 SE2d 708) (2015) (citations omitted). See also Graham v. State, 331 Ga. App. 36, 39 (2) (769 SE2d 753) (2015) (testimony concerning an out-of-court statement was not offered for its truth, but to explain its effect on those who heard the statement and their subsequent conduct, and was, therefore, admissible as nonhear-say).

And to the extent that the cashier’s testimony about the customer’s description of the clothing worn by the person lurking behind the store was inculpatory, that description was cumulative of the arresting officer’s testimony and the dashboard camera recording of his encounter with Hafeez.

4. Assistance of counsel.

Hafeez argues that trial counsel was ineffective in three respects. First, he challenges counsel’s failure to give the state timely notice of an alibi defense, which, he argues, prevented him from presenting that defense. Second, he argues that counsel failed to request certain jury instructions. Third, he argues that counsel failed to object to comments on his silence. We find that Hafeez has not shown both deficient performance and prejudice.

To prevail on his claim of ineffective assistance of counsel, Hafeez

must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different, had it not been for counsel’s deficient performance. If [Hafeez] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citations and punctuation omitted).

(a) Alibi defense.

Hafeez challenges trial counsel’s failure to timely give notice of an intention to present an alibi defense, which, he argues, prevented him from pursuing such defense. He also challenges counsel’s failure to call alibi witnesses.

Before the defense presented its case, the state moved to prevent the introduction of an alibi defense on the ground that Hafeez had not given timely notice as required by OCGA § 17-16-5 (a). Counsel responded that he did not have any alibi witnesses, so the trial court reserved ruling on any issues concerning an alibi defense. Thus, to the extent that Hafeez argues that trial counsel’s failure to timely give notice prevented the presentation of an alibi defense, and thus affected the outcome of the trial, his argument is misplaced.

As for counsel’s decision not to call any alibi witnesses, the only potential alibi witness who testified at the motion for new trial hearing was Hafeez’s sister. “Therefore, [Hafeez] cannot meet his burden of showing ineffective assistance based on counsel’s failure to call [any other] witness at trial.” Lupoe v. State, 284 Ga. 576, 578-579 (3) (b) (669 SE2d 133) (2008) (citation omitted).

As for the sister, she testified at the motion for new trial hearing that at 7:00 p.m. on October 16, the day ofthe Paulding County crime, Hafeez drove her, their mother, and other family members to a baby shower. She testified that she drove them all home between 8:00 and 9:00 p.m., where they all stayed for the night. The sister testified at the new trial hearing that she had been at the courthouse, waiting outside the courtroom to testify, when trial counsel said it would be better for her not to testify at the trial.

Trial counsel testified that the sister chose not to testify, that Hafeez agreed with not calling her, and that the sister signed a document stating she did not want to testify Counsel testified that regardless of the sister’s preference not to testify, he did not believe she would have been a good alibi witness and that she would not have helped Hafeez’s case, particularly once she was subjected to cross-examination. He based this assessment on the information the sister provided him, her demeanor, and her body language.

A decision as to which defense witnesses to call is a matter of counsel’s trial strategy and tactics and will not support a claim of ineffective assistance of counsel unless it is so unreasonable that no competent attorney would have made the decision under the circumstances. Given . . . trial counsel’s firsthand concerns ... we cannot say that the strategic decision not to call [the sister] at trial was patently unreasonable. Thus, [Hafeez] failed to show deficient performance.

Decided November 15, 2016.

Howard Law Group, Bryan R. Howard, James M. Allison, for appellant.

Dick Donovan, District Attorney, A. Brett Williams, Assistant District Attorney, for appellee.

Moss v. State, 298 Ga. 613, 619 (5) (d) (783 SE2d 652) (2016) (citations and punctuation omitted).

(b) Lesser included offenses.

Hafeez argues that trial counsel was ineffective for failing to request the court to charge the jury on lesser included offenses. Trial counsel testified that he and co-counsel did not request the court to instruct the jury on lesser included offenses, at Hafeez’s direction, because Hafeez insisted that he was innocent. Hafeez confirmed this at the motion for new trial hearing. “[T]he decision not to request a jury charge on a lesser included offense in order to pursue an ‘all- or-nothing’ defense is a matter of trial strategy, and reasonable trial strategy, whether wise or unwise, generally does not amount to ineffective assistance of counsel.” Wells v. State, 295 Ga. 161, 166 (2) (b) (758 SE2d 598) (2014) (citation omitted).

(c) Failure to object to alleged comments on Hafeez’s silence.

Hafeez argues that trial counsel was ineffective for failing to object to alleged comments on his pre-arrest silence. But at the hearing on the motion for new trial, trial counsel was not asked about his failure to object to these alleged comments. We therefore do not address this argument. See Doyle v. State, 291 Ga. 729, 732 (3) (733 SE2d 290) (2012); Jackson v. State, 288 Ga. App. 432, 434 (1) (a) (654 SE2d 232) (2007) (in absence of trial counsel’s testimony, we cannot assume counsel’s actions fell outside the presumed wide range of reasonable professional assistance).

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.