author: DOYLE, Presiding Judge.

text:
    A13A1560.
    AIM DMC ONE, LLC et al. v. THE FRANK GATES SERVICE CO. et al.
    (754 SE2d 82)
   DOYLE, Presiding Judge.

The trial court dismissed AIM DMC One, LLC’s (“DMC”), AIM Disability Management and Consulting, Inc.’s (“AIM’), and Mark Easler’s (collectively, “the plaintiffs”) case against The Frank Gates Service Co., Forte, Inc., and Risk Management Solutions (collectively, “the defendants”) on the grounds of improper venue and jurisdiction based on a forum selection clause contained in an employment agreement between some of the parties. The plaintiffs appeal, arguing that the defendants waived their venue and jurisdiction defenses by failing to raise them at the earliest possible opportunity. We affirm in part and reverse in part, for the reasons that follow.

The record reflects that Easier owned AIM and was also a member of DMC, the purpose of which was to purchase and manage an office condominium complex in Buckhead. In March 2009, DMC leased property in Buckhead to Forte, Inc., which allowed The Frank Gates Service Co. to use the property, with the acquiescence of DMC. According to Easier, he later agreed to sell DMC to The Frank Gates Service Co. and Forte for $750,000; the parties agreed that he would stay on as vice president, and The Frank Gates Service Co. and Forte would continue to lease the office space. On April 1, 2009, Easier and Risk Management Solutions (“Risk Management”) entered into an employment agreement, which contained a forum selection clause providing in relevant part:

Any action arising out of or relating in any way to this Agreement, or Employee’s employment relationship with Company, shall be brought and maintained only in the state and federal courts sitting in Franklin County, Ohio. The parties consent to the exclusive jurisdiction and venue in those courts to the greatest extent possible under law, whether or not either of them is now or hereafter becomes a resident of a different jurisdiction.

The plaintiffs allege that the defendants later terminated Easier without cause, failed to pay him severance as required under the employment agreement, and stopped paying rent on the Buckhead commercial property in violation of the lease agreement. On March 5, 2010, Easier filed two separate actions in Fulton County Magistrate Court against The Frank Gates Service Co., d/b/a Avizent/Forte, one for unpaid rent and the other for breach of an alleged verbal agreement to pay his phone charges; Easier brought both actions as “Easier d/b/a DMC,” and neither complaint mentioned the alleged employment agreement. The Frank Gates Service Co. filed answers and counterclaims in both cases. In the counterclaims, The Frank Gates Service Co. alleged that although the employment agreement provided that customers should have paid it directly for all goods and services beginning April 1, 2009, customers instead made payments totaling approximately $64,000 directly to Easier, who refused to forward the money to The Frank Gates Service Co., resulting in conversion of the funds. The Frank Gates Service Co. also moved to consolidate the cases and remove them to superior court, and the magistrate court granted the motions.

On July 28, 2010, Easier filed a motion in the instant case to (1) substitute DMC as the party plaintiff, (2) add Forte, Inc., as a defendant, and (3) amend the complaint, and the trial court granted the motion. In the amended complaint, DMC sought only damages for breach of the lease agreement and reimbursement for use of a cell phone account belonging to DMC. DMC subsequently moved for summary judgment. The trial court denied DMC’s motion for summary judgment, concluding that issues of fact remained as to the claims for breach of the lease and for reimbursement of cell phone charges.

On December 8, 2011, the week before trial, the defendants filed a motion to amend their counterclaims to add Easier as a counterclaim-defendant. On the day trial was scheduled to begin, the trial court denied the motion, noting (1) that DMC had repeatedly argued that the counterclaims were improper against DMC and that Easier was no longer a party to the action; and (2) that any claims arising out of the employment agreement were required to be litigated in Ohio. During the course of the ensuing trial, the trial court granted a mistrial. The trial court then orally granted the defendants’ motion to amend their counterclaim to add AIM and Easier as parties.

On December 22, 2011, DMC filed a motion for leave of court (1) to add Risk Management and KRG Capital Partners, LLC, as defendants; and (2) to amend the complaint, noting therein that the trial court had granted the defendants’ motion to add Easier and AIM as parties and that the counterclaims asserted against DMC would “require an analysis and resolution of the terms of the purchase/sale of Mr. Easler’s company, as well as Mr. Easler’s employment with Defendants”; DMC attached a copy of the employment agreement to the motion as an exhibit. On January 19, 2012, the defendants filed a brief in opposition to DMC’s motion to add party plaintiffs and to amend the complaint, noting that any claims against Risk Management arose out of the employment agreement and were therefore required to be litigated in Ohio pursuant to the forum selection clause. The proposed second amended complaint included a claim for breach of the employment agreement.

Thereafter, on June 11, 2012, the defendants filed a motion to dismiss based on lack of personal jurisdiction and improper venue based on the forum selection clause contained in the employment agreement. On November 5, 2012, the trial court granted the defendants’ motion to dismiss, concluding that

the claims in . . . Easler’s original petition, Defendants’ counter-claims [,] and the claims in Plaintiffs’ Second Amended Petition all arise out of or relate to the [employment agreement. . . . Defendants have not waived the forum selection clause by introducing the employment agreement in their counterclaim because the counterclaim was compulsory. The Court notes that while . . . Easier and AIM, Inc. were added as parties by Defendants], this was done after . . . [DMC] was substituted as Plaintiff instead of the original Plaintiff,... Easier d/b/a AIM----Accordingly, at the time of the answer, Defendant [s were] required to bring any claims [they] had arising out of the same transaction against . . . Easier d/b/a . . . [DMC] or their alter egos.

This appeal followed.

It is undisputed that the forum selection clause is enforceable and applies to the claims alleged in the plaintiffs’ second amended complaint. The plaintiffs, however, argue that the defendants waived venue and jurisdiction defenses based on the forum selection clause.

In Georgia, although “forum selection clauses are prima facie valid, such clauses are essentially no more than contractual provisions, and as such may be waived.” It is well settled that

personal jurisdiction and venue are generally defenses that may be waived if not raised at the proper time. Although a motion to set aside judgment for lack of jurisdiction may be filed at any time pursuant to OCGA § 9-11-60 (f), a waiver of the defenses of lack of personal jurisdiction and venue occurs under OCGA § 9-11-12 (h) (1) (B) when a Georgia resident who has received service of process fails to raise these defenses at the earliest opportunity.

1. The Frank Gates Service Co./Forte. The Frank Gates Service Co. d/b/a Forte specifically alleged in its April 2010 counterclaims in magistrate court that Easier converted funds that should have been paid directly to The Frank Gates Service Co., in violation of his employment agreement. The Frank Gates Service Co., however, failed to assert at that time its venue and jurisdiction defenses based on the forum selection clause in the employment agreement. Approximately 20 months later, after DMC was substituted for Easier as plaintiff, the defendants moved on the eve of the December 2011 trial to amend their counterclaims to add Easier as a counterclaim-defendant; the trial court denied the motion based in part upon a finding that any claims arising out of the employment agreement would have to be litigated in Ohio. The trial court subsequently orally granted the defendants’ motion to amend their counterclaim to assert claims against Easier immediately following the entry of a mistrial in December 2011. Nevertheless, The Frank Gates Service Co. and Forte did not file a motion to dismiss the case on the grounds of improper venue and jurisdiction until June 2012. Under these circumstances, we conclude that The Frank Gates Service Co. and Forte waived their venue and jurisdiction defenses based on the forum selection clause by failing to raise them at the earliest opportunity. Accordingly, the trial court’s dismissal of The Frank Gates Service Co. and Forte is reversed.

Decided December 11, 2013.

Yasha Heidari, for appellants.

Fellows & LaBriola, Henry D. Fellows, Jr., Christina M. Baugh, for appellees.

2. Risk Management. Risk Management, however, was not an initial party to the litigation. On June 13, 2012, the trial court granted the plaintiffs’ motion for leave to add Risk Management Solutions as a party defendant, and Risk Management was served with the second amended complaint on July 19, 2012. On August 20, 2012, Risk Management filed its answer and defenses asserting its reliance on the forum selection clause, as well as a motion to dismiss based on the clause. Under these circumstances, we conclude that Risk Management assertedits venue and jurisdiction defenses regarding the forum selection clauses at the earliest opportunity. Accordingly, we affirm the trial court’s dismissal of the plaintiffs’ claims against Risk Management.

Judgment affirmed in part and reversed in part.

McFadden and Boggs, JJ., concur.

       There is no signed agreement to this effect in the record.

       The employment agreement listed Risk Management, Inc., as “Company” and Easier as “Employee”; the copy of the agreement contained in the record was not signed by Risk Management. The employment agreement was attached to a cover letter signed by Adrienne Paler, senior vice president of Avizent, on letterhead emblazoned, “AVIZENT™ Frank Gatés Service Co./Attenta,” which letter stated that Avizent/Forte offered Easier the position of vice president of East Operations. Also attached to the letter was a confidentiality agreement between “Company” - Risk Management Solutions, Inc. - and “Employee” - Easier - indicating that “Company desires to employ Employee as Company’s Vice President, East Operations for Forte”; the confidentiality agreement was signed by Easier and Adrienne Paler on behalf of “Company: Risk Management Solutions, Inc.”

       (Emphasis supplied.)

       (Citations omitted.) Euler-Siac S.P.A. v. Drama Marble Co., 274 Ga. App. 252, 254 (1) (617 SE2d 203) (2005). See also Rice v. Champion Bldgs., 288 Ga. App. 597, 600 (2) (654 SE2d 390) (2007).

       (Citations omitted.) Euler-Siac S.P.A., 274 Ga. App. at 254-255 (1).

       See id. at 255 (1). We reject The Frank Gates Service Co.’s argument that because its counterclaims were compulsory, it did not waive the forum selection clause by introducing the employment agreement. Contrary to The Frank Gates Service Co.’s contention, Antee Corp. v. Popcorn Channel, 225 Ga. App. 1, 3 (3) (482 SE2d 509) (1997), does not stand for the proposition that a defendant’s assertion of a compulsory counterclaim relieves the defendant of its obligation to raise its venue and jurisdiction defenses in its answer or by motion pursuant to OCGA § 9-11-12 (b) to avoid waiving them. See Riggio v. Lawson, 204 Ga. App. 774, 775 (1) (420 SE2d 613) (1992) (holding that the assertion of a compulsory counterclaim does not waive defenses of improper venue and lack of personal jurisdiction that were raised in the defendant’s answer). Thus, The Frank Gates Service Co. waived its venue and jurisdiction defenses by failing to assert them in its answer and counterclaim or by motion pursuant to OCGA § 9-11-12 (b). We find no merit in its argument that the failure to assert them did not constitute a waiver of the defenses simply because the employment agreement was not at issue once DMC was subsequently substituted as plaintiff for Easier.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A13A1127.
    THE STATE v. KING.
    (750 SE2d 756)
   McFadden, Judge.

Pursuant to a negotiated plea agreement, Dena King pled guilty to charges of robbery and aggravated assault, and the state recommended concurrent 20-year sentences, with 15 years to be served in prison. The superior court accepted King’s guilty plea, but announced that it was not going to follow the recommended sentence. The court then imposed concurrent sentences of fifteen years, with five years to be served in prison and the remainder on probation. The state moved to set aside the guilty plea and sentence, claiming that the trial court was required to follow the state’s recommended sentence or to give the state a chance to withdraw from the negotiated plea. The trial court denied the motion, noting, among other things, that all plea bargains are mere recommendations subject to the trial court’s approval and that sentencing is within the complete purview of the court as long as it is within statutory limits. The state directly appealed, claiming it is entitled to appeal from allegedly void sentences. But because the state’s claims do not actually amount to allegations that the sentences are void, the state cannot directly appeal. Accordingly, this court lacks jurisdiction and the appeal must be dismissed.

“In OCGA § 5-7-1 (a), the General Assembly has set forth only a limited right of appeal for the [s]tate in criminal cases. If the [s]tate attempts an appeal outside the ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to entertain it.” State v. Evans, 282 Ga. 63, 64 (646 SE2d 77) (2007) (citations and punctuation omitted). In this case, the state contends that it has the right to appeal pursuant to OCGA § 5-7-1 (a) (6), which provides that the state may appeal “[f]rom an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state.” This statutory language has indeed been recognized as authorizing the state “to appeal a void sentence.” State v. Jones, 265 Ga. App. 493 (1) (594 SE2d 706) (2004) (citations omitted). See also State v. Carden, 281 Ga. App. 886 (637 SE2d 493) (2006).

However, even though the state has couched its appeal in terms of being from void sentences, its claims of error do not actually amount to allegations that the sentences are void. As an initial matter, “[a] judgment is not void so long as it is entered by a court of competent jurisdiction.” State v. Glover, 281 Ga. 633 (641 SE2d 543) (2007) (citations and punctuation omitted). The superior court, of course, had jurisdiction over this felony case. See Ga. Const, of 1983, Art. VI, Sec. IV, Par. I; OCGA § 15-6-8 (1). Therefore, “[ejven assuming the trial court erred, [the judgment of conviction] is not void as it was entered by a court of competent jurisdiction.” Glover, supra. See also State v. Yapo, 296 Ga. App. 158, 159 (1) (674 SE2d 44) (2009) (contrary to state’s argument, the basis for appellate jurisdiction could not be that the order was void as the order was entered by a court of competent jurisdiction).

As for the sentences imposed by the trial court, “a sentence is void if the court imposes a punishment that the law does not allow.” Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991).

Motions to vacate a void sentence generally are limited to claims that — even assuming the existence and validity of the conviction for which the sentence was imposed—the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.

von Thomas v. State, 293 Ga. 569 (2) (748 SE2d 446) (2013) (citations omitted). Here, the state makes no claim that the sentences imposed by the trial court were not within the statutorily-prescribed range of punishments. Indeed, the 15-year sentences imposed by the trial court were well within the 20-year statutory range of punishments for robbery and aggravated assault, see OCGA §§ 16-5-21 (b) and 16-8-40 (b), and therefore the sentences are not void. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004); Few v. State, 311 Ga. App. 608 (716 SE2d 644) (2011).

With regard to alleged errors in sentencing, claims of error which can be waived “necessarily do not amount to claims that the sentence imposed was void, inasmuch as a sentence which is not allowed by law is void, and its illegality may not be waived.” See von Thomas v. State, supra at 573 (2) (citations and punctuation omitted; emphasis in original). Here, the state could have waived its claim that the trial court erred by imposing sentences different from the negotiated plea recommendations, and therefore any such claim necessarily does not allege a ground upon which the sentences could be declared void, von Thomas, supra. Such a claim amounts to an “allegation that the [sentence] is voidable, not an allegation that [it] is void.” Collins v. State, 277 Ga. 586, 587 (591 SE2d 820) (2004) (citations omitted).

Decided November 14, 2013

Reconsideration denied December 13, 2013

Peter J. Skandalakis, District Attorney, Steven H. Lee, Assistant District Attorney, for appellant.

Kirby & Kirby, William L. Kirby III, for appellee.

It is readily apparent that the sentence [s are] not void... because [they were] imposed when the trial court was without jurisdiction to impose the sentence [s] or because the sentence[s were] contrary to that required by law. [Rather], the [s]tate merely contends that the trial court erred in [disregarding its recommendation] for sentencing. Under the circumstances, ... we find that the sentence^ are] not [alleged to be] void. Therefore, the appeal must be dismissed for lack of jurisdiction.

Gibbins v. State, 229 Ga. App. 896, 902 (8) (495 SE2d 46) (1997) (citations omitted). See also von Thomas, supra at 573 (3) (no jurisdiction to reach merits of appeal where appellant “did not assert a claim that [the] sentence was void, meaning that it was a sentence that the law did not allow”); State v. O’Neal, 156 Ga. App. 384, 386 (2) (274 SE2d 575) (1980) (where sentence not void, state not authorized to appeal from order denying its motion for reconsideration of sentence).

We further note that in State v. Harper, 279 Ga. App. 620 (631 SE2d 820) (2006), under similar circumstances to the instant case, the state directly appealed from a trial court’s allegedly erroneous sentence entered “ ‘in complete disregard of the plea agreement’ without first notifying the state of its intent to reject the agreement.” This court ruled that the appeal was authorized because the state can “directly appeal from an allegedly void sentence.” Id. at 620 (1). To the extent that Harper conflicts with the instant opinion and holds that the state may directly appeal from a sentence on the ground that the trial court allegedly erred in disregarding a recommended sentence pursuant to a plea agreement, without first notifying the state and giving it the opportunity to withdraw, Harper is hereby overruled.

Appeal dismissed.

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

       This language was previously set forth in subsection (a) (5) of OCGA § 5-7-1, but was re-designated as subsection (a) (6) by a recent amendment.


author: Boggs, Judge. DOYLE, Presiding Judge, McFADDEN, Judge,

text:
    A13A0988, A13A0989.
    A13A0990.
    DOSS & ASSOCIATES v. FIRST AMERICAN TITLE INSURANCE COMPANY, INC.; and vice versa. GEROVA ASSET BACKED HOLDINGS, L.P. v. DOSS & ASSOCIATES.
    (754 SE2d 85)
   Boggs, Judge.

This case arises from a $4.75 million loan from Stillwater Asset-Backed Fund, LP (“Stillwater”) to Cohutta Water, Inc. Steve Carroll, Cohutta’s president and CEO, guaranteed the loan and executed a security deed for seven parcels of real estate to secure it. Stillwater did not obtain a first-position lien on one of the tracts (48.2 acres) due to a prior encumbrance held by Branch Banking & Trust (“BB&T”) for a personal loan to Carroll. In 2008, Cohutta defaulted on the Still-water loan, and Carroll breached the guaranty and filed for bankruptcy. In 2009, BB&T foreclosed on the 48.2 acre tract and paid $1 million as the highest bidder; the total principal amount of the BB&T loans secured by the property was $910,831. Stillwater received title to land valued at $5.6 million from the foreclosure sale of the remaining lots securing Carroll’s guarantee.

Stillwater subsequently sued Doss & Associates (“Doss”), the closing attorney and title agent for the loan, as well as First American Title Insurance Company, Inc. (“First American”), claiming it should have received a first-position lien on the 48.2 acre tract in the closing and seeking damages. First American asserted a cross-claim against Doss for contractual indemnity and professional negligence.

In Case No. A13A0988, Doss appeals from the trial court’s grant of partial summary judgment in favor of First American on its contractual indemnity claim, asserting that it was premature for the trial court to rule upon the claim and that it cannot be held liable for an insurer’s bad faith failure to pay a claim. In Case No. A13A0989, First American cross-appeals from the trial court’s order denying summary judgment in its favor, claiming it cannot be held liable for Stillwater’s interest, costs, and attorney fees associated with the loan, that Stillwater cannot prove a bad faith claim, and that Doss should be required to indemnify it for its attorney fees. In Case No. A13A0990, Stillwater appeals from the trial court’s order granting summary judgment in favor of Doss on Stillwater’s claim for breach of an alleged oral escrow agreement. For the reasons explained below, we affirm in Case No. A13A0988; affirm in part and reverse in part in Case No. A13A0989; and reverse in Case No. A13A0990.

Case No. A13A0990

In its sole enumeration of error, Stillwater contends that the trial court erred by failing to conclude that genuine issues of fact exist as to whether an oral escrow agreement existed between it and Doss in connection with the closing of the $4.75 million loan. We agree and therefore reverse.

The record shows that on December 14, 2006, Allison Prouty, Stillwater’s counsel in New York, orally requested that Doss execute an escrow agreement in connection with the closing. No later than the morning of December 20, 2006, Doss provided Stillwater’s counsel with a form escrow agreement that had been obtained from a “form library” on a First American website.

At 11:28 a.m. on December 20, Prouty sent an e-mail to Michelle Tipton, a paralegal at Doss, thanking her for sending a “form of escrow agreement” in addition to other documents. Prouty requested that Doss prepare an escrow agreement for her firm “with all the normal provisions pertaining to any escrow agreement” in order for Stillwater “to wire loan proceeds into your firm’s escrow account.” She also stated:

Escrow Agreement:

Specific to language in the title company’s brief form you sent, you need to list, after “as follows:” at the end of the first paragraph, the prior liens, taxes and title premiums and recording charges to be paid off at closing. Basically you will need to determine the figures that will appear in the borrower’s title bill, listing all payments to be made at closing prior to release of the balance of funds to the borrower. Paragraph 2 is in reverse: our client, the depositor, must be indemnified if... your firm’s obligations as escrowee are not performed — Stillwater will not be indemnifying your firm. Paragraph 3 should be struck, as it does not apply to this transaction.

Less than two hours later, Lynn Doss, the closing attorney, sent a reply to Prouty stating in part, “As to the escrow agreement... in 22 years of practicing real estate law, we have never had a request to prepare or execute such a document in order for lenders to tender funds. If there is something in particular that you want, send it to me and I will review it.” Although Doss did not hear back from Prouty, Doss’ paralegal, Tipton, sent an e-mail to Prouty at 5:08 p.m. on December 20, stating: “Attached is the r[e]vised escrow agreement for your review. Let me know if you need something more specific.” The attached escrow agreement included the changes requested by Prouty with regard to paragraph 2 and the listing of amounts to be paid off at closing.

On December 21 at 9:44 a.m., Stephen Semian, another New York attorney representing Stillwater, sent an e-mail to Lynn Doss, copied to Tipton, that stated: “As far as I know, we are still waiting for your redraft of the escrow agreement, opinion, payoff letters and a list of liens that are being released (along with exact payoff amounts). Funds would arrive by wire — please send your wiring instructions to me, as I’ll be preparing the direction letter.” Tipton sent the following reply to Semian at 10:14 a.m.: “I sent everything to Allison [Prouty] on Wednesday about 330 or 400 p.m. I have attached the escrow agreement to this email for your review. If I need to add anything, please let me know.”

At 1:31 p.m., Prouty sent an e-mail to Lynn Doss stating: “The fourth email received from your office attached a revised escrow agreement. The most significant problem with this is that it provides that the entire balance of the loan proceeds will be released and paid to Mr. Carroll, who is not the borrower.” At 4:38 p.m., Lynn Doss sent another e-mail to Prouty attaching “the revised escrow agreement.” The new revision corrected the error mentioned by Prouty in her e-mail. Prouty testified that Doss ultimately “provided an escrow agreement that was acceptable.” At another point in her deposition, she testified that the last version of the agreement “actually seemed to have most of the requirements I had asked for.”

Semian sent an e-mail at 8:00 p.m. on the evening of the closing (December 22), requesting Tipton to “send up a signed escrow agreement, but it is undisputed that neither Doss nor Stillwater signed any version of the escrow agreement. Semian testified that while a signed escrow agreement was “wanted before closing,” he was not concerned that it was not signed before the closing on December 22, because they “had agreed on the final form of the agreement.”

Lynn Doss testified that she did not sign the escrow agreement before the closing based upon an e-mail she received from Prouty on December 21, 2006 at 5:17 p.m. Doss interpreted that e-mail to mean that Stillwater was no longer insisting upon a first position for the 48.2 acre tract as a condition for closing. Doss also believed, based upon this e-mail, that a subordination agreement from BB&T would no longer be a condition of closing and that Stillwater would address it after closing. Based upon this understanding, the provision in the last version of the escrow agreement requiring her to obtain a first lien on all properties listed, including the 48.2 acre tract, “was obviously a mistake because there’s nothing that indicates that they’re paying off BB&T.” She testified that she “presumed” Still-water’s counsel no longer wanted the escrow agreement when she received no further communication about it after sending the last revised draft. Although she testified that she asked Stillwater’s counsel “to tell me if my draft escrow agreement was acceptable,” her last e-mail stated only: “Attached is the revised escrow agreement.” Nowhere in her e-mail does she ask if the last revised escrow agreement is acceptable.

1. “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1.

In determining whether there was a mutual assent, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. Further, in cases such as this one, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.

(Citations and punctuation omitted.) Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 597 (1) (693 SE2d 873) (2010). Additionally,

[a] formal, written agreement may be a condition precedent to the formation of a binding contract, when the parties so intend. When the parties intend to memorialize with a formal document an agreement that they have already reached, on the other hand, the execution of the document is not an act necessary to the creation of an enforceable contract.

(Citations omitted.) Brooks Peanut Co. v. Great Southern Peanut, 322 Ga. App. 801, 806 (1) (746 SE2d 272) (2013). Stated differently, “assent to the terms of a contract may be given other than by signatures.” (Citations and punctuation omitted.) Terry Hunt Constr. v. AON Risk Svcs., 272 Ga. App. 547, 552 (3) (613 SE2d 165) (2005) (issue of fact as to whether course of dealing between parties demonstrated assent to agreement). And “assent may be implied from the circumstances,” Redmond & Co. v. Atlanta & Birmingham Air-Line R., 129 Ga. 133, 142-143 (2) (58 SE 874) (1907), and the conduct of the parties. Tom Brown Contracting v. Fishman, 289 Ga. App. 601, 603-604 (1) (658 SE2d 140) (2008).

Here, the record shows that Stillwater’s attorneys informed Doss that an escrow agreement was required as a condition of the loan. Several draft agreements were provided by Doss, the last of which incorporated the revision requested by Stillwater’s attorneys. The following day, Stillwater funded the loan, and this conduct can be construed as an assent to the last draft of the escrow agreement provided by Doss. While Lynn Doss asserts that she interpreted Prouty’s 5:17 p.m. e-mail, sent after the last version of the escrow agreement had been provided to Prouty, as rendering a portion of the escrow agreement “a mistake,” she never communicated this belief to Stillwater’s counsel or made any effort to withdraw or revise the last version of the escrow agreement she had drafted. Moreover, Prouty testified that her 5:17 p.m. e-mail was not inconsistent with the terms of the escrow agreement and that she was informed by Doss’ paralegal that a subordination agreement, consistent with the terms of the escrow agreement, had been obtained before she authorized a wire of the loan funds into Doss’ escrow account.

Because genuine issues of material fact remain as to whether there was a meeting of the minds with regard to an escrow agreement, the trial court erred by granting summary judgment in favor of Doss on Stillwater’s claim for breach of the escrow agreement. See Terry Hunt Constr., supra, 272 Ga. App. at 552 (3) (trial court erred by granting summary judgment because course of conduct between parties created issues of fact regarding assent to unsigned written agreement); Computer Maintenance Corp. v. Tilley, 172 Ga. App. 220, 222 (1) (322 SE2d 533) (1984) (physical precedent only) (issues of fact exist as to whether party that failed to sign contract ratified contract by subsequent conduct and performance).

2. Doss argues, in the alternative, that we should affirm the trial court’s grant of summary judgment in its favor because, as a matter of law, Stillwater suffered no damages as a result of its second-position lien on the 48.2 acre tract. According to Doss, no loss occurred because Stillwater received title to land valued at $5.6 million as a result of its foreclosure on the remaining tracts, an amount greater than the initial principal amount of the loan ($4.75 million). We disagree.

The deed to secure debt executed by Carroll provided: “in this Security Deed the definition of the Debt includes all the obligations and liabilities of Grantor under the Guaranty with respect to (i) the principal of the loans ..., (ii) all accrued interest thereon____” It also provided that the security deed would be cancelled only after “payment of the Debt.” Stillwater was therefore entitled to exercise its power of sale under the security deed to collect accrued interest on the loan, and its inability to first exercise a power of sale on the 48.2 acre tract to offset accrued interest of $2,158,920.80 resulted in a loss. See OCGA § 13-6-2 (“[djamages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach”).

For the above-stated reasons, we reverse the trial court’s grant of partial summary judgment in Doss’ favor in Case No. A13A0990.

Case No. A13A0989

In this appeal, First American contends that the trial court erred by denying its motion for summary judgment on Stillwater’s claims for coverage under the title insurance policy and for bad faith damages under OCGA § 33-4-6. First American also contends that the trial court erred by granting summary judgment in favor of Doss on First American’s claim for attorney fees under an indemnity agreement. For the reasons explained below, we affirm the trial court’s denial of First American’s motion with regard to its liability under the policy, reverse the denial of summary judgment with regard to bad faith damages, and affirm with regard to Doss’ liability for attorney fees under the indemnity agreement.

3. First American contends that Stillwater has suffered no loss under the policy, because the value of the other foreclosed tracts upon which Stillwater received a first-position lien totaled $5.6 million and the amount insured by the policy was $4.75 million. In essence, First American contends Stillwater suffered no loss within the meaning of the policy as a result of its failure to obtain a first-position lien on the 48.2 acre tract. Stillwater, on the other hand, asserts that the policy language is ambiguous with regard to how an insured’s monetary loss under the policy is calculated and that the ambiguity must be construed against First American and in favor of coverage.

The cover page of the policy states that First American, subject to policy conditions, exclusions, exceptions, and stipulations, “insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of. . . [t]he priority of any lien or encumbrance over the lien of the insured mortgage.” The policy does not define the term “loss or damage.” The amount of insurance listed in Schedule A of the policy is $4.75 million. Schedule A also states: “The instruments creating the estate or interest in real estate which is hereby insured are described as follows: By that certain deed to secure debt, security agreement and assignment of leases from Steven W. Carroll to . . . Stillwater. . . .”

Section 7 (a) of the policy, under “Determination and Extent of Liability.” provides:

(a) The liability of the Company under this policy shall not exceed the least of:
(i) the amount of insurance stated in Schedule A, or, if applicable, the amount of insurance as defined in Section 2 (c) of these Conditions and Stipulations;
(ii) the amount of unpaid principal indebtedness secured by the insured mortgage as limited or provided under Section 8 of these Conditions and Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time of loss or damage insured against by this policy occurs, together with interest thereon; or
(iii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy.

Section 9 of the policy, titled “Reduction of Insurance; Reduction or Termination of Liability,” provides:

(a) All payments under this policy, except payments made for costs, attorneys’ fees and expenses, shall reduce the amount of the insurance pro tanto. However, any payments made prior to the acquisition of title to the estate or interest as provided in Section 2 (a) of these Conditions and Stipulations shall not reduce pro tanto the amount of the insurance afforded under this policy except to the extent that the payments reduce the amount of indebtedness secured by the insured mortgage.
(b) Payment in part by any person of the principal of the indebtedness, or any other obligation secured by the insured mortgage, or any voluntary partial satisfaction or release of the insured mortgage, to the extent of payment, satisfaction or release, shall reduce the amount of insurance pro tanto. The amount of insurance may thereafter be increased by accruing interest and advances made to protect the lien of the insured mortgage and secured thereby, with interest thereon, provided in no event shall the amount of insurance be greater than the Amount of Insurance stated in Schedule A.
(c) Payment in full by any person or the voluntary satisfaction or release of the insured mortgage shall terminate all liability of the Company except as provided in Section 2 (a) of these Conditions and Stipulations.

The trial court found “an ambiguity in the above [p] olicy language regarding whether the insurer’s liability under the Policy is intended to include accrued interest on a loan, notwithstanding the insured’s recovery of the principal loan amount.”

(a) For the reasons explained below, we agree with the trial court’s conclusion that First American was not entitled to summary judgment, but do so for a different reason. First American contends that the policy limit was reduced below zero based upon the interplay between Section 7 (a) (ii) and Section 9 (b) of the policy. Specifically, First American asserts that before Stillwater foreclosed, the outstanding principal balance on its loan was $4.75 million, that Stillwater received title to land valued at $5.6 million in the foreclosure sale of the parcels for which it received a first-position lien, and that the principal balance of $4.75 million must be reduced by the $5.6 million value, resulting in a number less than zero.

Section 7 (a) (ii) states:

The liability of the Company under this policy shall not exceed the least of . . . the amount of the unpaid principal indebtedness secured by the insured mortgage as limited or provided under Section 8 of these Conditions and Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage insured against by this policy occurs, together with interest thereon.

(Emphasis supplied.) The first sentence of Section 9 (b) provides that “[p] ayment in part by any person of the principal of the indebtedness, or any other obligation secured by the insured mortgage, . . . shall reduce the amount of insurance pro tanto.” (Emphasis supplied.) Section 9 (b) provides a stand-alone method for the calculation of the amount of insurance, but the stated purpose for Section 7 of the policy is to provide for the amount the Company is liable for under the policy, not the amount of insurance.

Examination of the policy as a whole clarifies that the amount of insurance is not necessarily the amount which First American is liable to pay; nor is it necessarily the amount stated in Schedule A of the policy. Section 2 (c) of the policy, referenced in a different portion of Section 7, provides:

The amount of insurance after acquisition or after the conveyance shall in neither event exceed the least of:
(i) the amount of insurance stated in Schedule A;
(ii) the amount of the principal of the indebtedness secured by the insured mortgage as of Date of Policy, interest thereon, expenses of foreclosure, amounts advanced pursuant to the insured mortgage to assure compliance with laws or to protect the lien of the insured mortgage prior to the time of acquisition of the estate or interest in the land and secured thereby and reasonable amounts expended to prevent deterioration of improvements, but reduced by the amount of all payments made; or
(iii) the amount paid by any governmental agency or governmental instrumentality, if the agent or instrumentality is the insured claimant, in the acquisition of the estate or interest in satisfaction of its insurance contract or guaranty.

Section 9 (b), which provides a calculation for the amount of insurance, does not provide a calculation to reduce the amount of unpaid principal. Instead, it provides that principal, as well as interest, paid under the policy will reduce the amount of insurance. The portion of Section 7 (a) (ii) stating “the amount of unpaid principal indebtedness ... as reduced under Section 9” therefore inexplicably references a formula for the reduction of the amount of insurance, not the unpaid principal indebtedness.

In this case, even after taking into account the applicable rules of contract construction, we conclude that Section 7 (a) (ii) is too vague and uncertain to be enforced. Simply put, the phrase at issue is incomprehensible and cannot support any clear meaning, much less two alternate meanings, for the policy language employed by First American when drafting Section 7 (a) (ii) of the policy.

“An insurance contract will be deemed ambiguous only if its terms are subject to more than one reasonable interpretation. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.” (Citation and punctuation omitted.) State Farm Mut. Auto. Ins. Co. v. Staton, 286 Ga. 23, 25 (685 SE2d 263) (2009). As this court has previously recognized, “[t]here is a difference between ambiguity, which imports doubleness and uncertainty of meaning, and that degree of indefiniteness which imports no meaning at all.” (Citations and punctuation omitted.) A. S. Reeves & Co. v. McMickle, 270 Ga. App. 132, 134 (605 SE2d 857) (2004).

[A] word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one. An ambiguity, then, involves a choice between two or more constructions of the contract. Where, as here, there is no ambiguity, and the terms of the contract are not set out with sufficient particularity to enable the court to say what in fact was intended by the parties as full compliance, then the matter of a choice between two or more constructions is not involved.

(Citations and punctuation omitted.) Burden v. Thomas, 104 Ga. App. 300, 302-303 (121 SE2d 684) (1961).

(b) The proposed interpretations by the dissent and the special concurrence should not be used to find alternate meanings and ambiguity, because both fail to focus on the fact that Section 7 (a) (ii) of the policy attempts to use a formula from Section 9 (b) for the reduction of the amount of insurance to reduce the amount of the unpaid principal indebtedness. We cannot, as proposed by the dissent, take a portion of the formula, payments listed under Section 9 (b), and then subtract it from the amount of unpaid principal indebtedness in Section 7 (a) (ii). Nor can we, as proposed by the special concurrence, conclude that unpaid principal indebtedness in Section 7 (a) (ii) is calculated by subtracting the value of the foreclosed property from the total amount of outstanding debt (principal and accrued interest). While the interpretation offered by the special concurrence provides a sensible approach for what a title insurance policy should provide in the abstract, we cannot rewrite a poorly drafted policy to impart meaning to a formula that cannot be calculated by the policy’s express terms. Contrary to the position of both the dissent and the special concurrence, we simply cannot take a portion of a formula for reducing the amount of insurance in Section 9 (b) and use it to reduce unpaid principal indebtedness under Section 7 (a) (ii).

We also disagree with the position that a title policy is not intended to provide coverage for the loss of a lender’s ability to collect accrued interest on a debt through foreclosure of a security deed based upon its failure to receive a first-position lien. While it is true that title policies do not insure the value of the subject property or the payment of debt secured by the property, it does insure “loss or damage” incurred as a result of later discovered defects in the title. Therefore, “[f]or purposes of title insurance, a mortgagee’s loss is measured by the extent to which the insured debt is not repaid because the value of the security property is diminished or impaired by outstanding lien encumbrances or title defects covered by title insurance.” Couch on Insurance 3rd Ed., § 185.87 (2012). And unpaid debt includes accrued interest on a loan. See, e.g., Southwest Title Ins. Co. v. Northland Bldg. Corp., 542 SW2d 436, 453 (Tex. App. Ct. 1976) (“amount of the loss was not only the amount of the unpaid principal but the loss of interest provided for in said note”), reversed on other grounds, Southwest Title Ins. Co. v. Northland Bldg. Corp., 552 SW2d 425, 430 (Tex. 1977). Nonetheless, a mortgagee cannot recover all of its unpaid debt, including accrued interest, if the value of the property at issue without the title defect is not enough to satisfy the entire unpaid debt. See Couch on Insurance 3rd Ed., § 185.88 (2012). Instead, as here, it may only recover “the value of the property, not the amount due on the mortgage.” Id.

Finally, if, as proposed by the dissent, the parties had intended for First American to have no liability for any accrued interest on the principal of the loan, the policy could have simply defined the “loss or damage” covered by the policy to exclude any accrued interest on the original principal amount of the loan. Instead, the policy contains no definition of the term “loss or damage,” and the formula in Section 7 (a) (ii) is incomprehensible. Additionally, Section 2 (c) (ii) of the policy, construed in favor of coverage, includes accrued interest on the principal amount of the mortgage when calculating one of three alternative insurance amounts following acquisition of an interest in the property by a mortgagor through foreclosure. Therefore, the policy should not be construed to express an intent against the recovery of interest on the principal amount of the secured debt.

OCGA § 13-2-2 (6) cannot be applied here to construe the policy to find no coverage. This Code section provides only that

[t]he rules of grammatical construction usually govern, but to effectuate the intention they may be disregarded; sentences and words may be transposed, and conjunctions substituted for each other. In extreme cases of ambiguity, where the instrument as it stands is without meaning, words may be supplied.

Here, the dissent fails to specify what words should be supplied to effect the purported intent of the parties, and OCGA § 13-2-2 (6) does not provide for the replacement of words other than conjunctions. Cf. Hamrick v. Kelley, 260 Ga. 307, 307-308 (392 SE2d 518) (1990) (even where “blue pencil” method is available, a court may not “reform a contract which is otherwise unenforceable by reason of vagueness.” (Emphasis in original.)); New Atlanta Ear, Nose & Throat Assocs. v. Pratt, 253 Ga. App. 681, 687 (2) (560 SE2d 268) (2002) (court cannot use blue pencil method to “rewrite a contract void for vagueness”). “It is the function of the court to construe the contract as written and not to make a new contract for the parties.” (Citation and punctuation omitted.) Waste Mgmt. of Metro Atlanta v. Appalachian Waste Systems, 286 Ga. App. 476 (649 SE2d 578) (2007). Because we cannot write a new insurance contract for the parties and Section 7 (a) (ii) of the policy provides for a formula that cannot be calculated, we conclude that Section 7 (a) (ii) is too indefinite to be enforced.

(c) Having concluded that Section 7 (a) (ii) of the policy is too indefinite to be enforced, we turn to whether First American has any liability under Section 7 (a) (i) or 7 (a) (iii) of the policy because it is liable for the lesser of the amounts determined by these subsections. The applicable amount under Section 7 (a) (i) is plainly the amount of insurance listed in Schedule A of the policy — $4.75 million. Section 7 (a) (iii) requires a closer analysis.

Under Section 7 (a) (iii), First American is liable for “the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy.” (Emphasis supplied.) We must therefore consider the precise meaning of the phrase “as insured.”

In a case involving an owner’s claim for title insurance under identical policy language, this Court noted that

the general method of computing damages for breach of a title insurance policy ... is the difference between the value of the property when purchased with the encumbrance or encroachment thereon, and the value of the property as it would have been if there had been no such encumbrance or encroachment.

(Citation, punctuation and footnote omitted.) Jimenez v. Chicago Title Ins. Co., 310 Ga.App. 9, 15 (3) (a) (712 SE2d 531) (2011). See also Jurney v. Ticor Title Ins. Co., 2012 U. S. Dist. LEXIS 43654 at *6 (III) (A) (N.D. Ga., March 29, 2012).

In Jimenez, supra, the owner purchased two parcels that constituted the estate insured by the policy, but subsequently lost title to one of the parcels following a quiet title action. Id. at 10. Based upon evidence in the record showing the separate value of the two parcels, we affirmed the trial court’s conclusion that the owner presented evidence of the diminished value of his property as a result of the title defect. Id. at 14-15 (3) (a).

Here, the record shows that Stillwater received title at the foreclosure sale to a portion of the insured estate with a value of $5.6 million. It did not receive any value for the portion of the insured estate upon which BB&T foreclosed, and the record shows that BB&T paid $1 million for title to this portion of the insured estate at the foreclosure sale. As this evidence supports the conclusion that First American is liable for an amount more than zero under Section 7 (a) (iii) of the policy, we affirm the trial court’s denial of First American’s motion for summary judgment.

4. First American also contends that the trial court erred in concluding that issues of fact precluded summary judgment in its favor on Stillwater’s claim for bad faith failure to pay under OCGA § 33-4-6. It contends that Stillwater served its bad faith notice before payment was due, that Stillwater failed to wait the requisite 60 days to file suit, and that it “had valid grounds not to pay Stillwater’s claim and has acted in good faith.” We agree.

OCGA § 33-4-6 (a) provides, in relevant part:

In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 50 percent of the liability of the insurer for the loss or $5,000.00, whichever is greater, and all reasonable attorney’s fees for the prosecution of the action against the insurer. . . .

Because this Code section provides for a penalty, it must be strictly construed. Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 325 (2) (138 SE2d 668) (1964). And “the insured bears the burden of proving that the refusal to pay the claim was in bad faith.” (Citations, punctuation and footnote omitted.) Jimenez, supra, 310 Ga. App. at 12 (2).

“It has long been the law that in order to serve as a bad faith demand, the demand must be made at a time when immediate payment is due.” (Citations, punctuation and footnote omitted.) Lavoi Corp. v. Nat. Fire Ins., 293 Ga. App. 142, 146 (1) (b) (666 SE2d 387) (2008). In this case, the policy expressly provides that it “is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described.” (Emphasis supplied.) Additionally, it states: “When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within 30 days thereafter.” Finally, the policy provides First American with several alternative options when a claim is made under the policy. These options include: paying the amount of insurance; purchasing the indebtedness; paying the amount of insurance together with costs, attorney fees, and expenses authorized by the insurer; purchasing the indebtedness secured by the insured mortgage for the amount owing together with costs, attorney fees and expenses authorized by the insurer; and paying or otherwise settling with parties other than those insured by the policy.

In this case, the record shows that in a letter dated February 16, 2010, Stillwater first notified First American of its intent to seek bad faith damages under OCGA § 33-4-6. This letter states that BB&T foreclosed on the 48.2 acre tract on April 7, 2009 and contends that Stillwater suffered a loss on the date that BB&T foreclosed. Still-water contended that the appraised value of the remaining tracts securing the loan totaled $4,426,740 and that it was not necessary for it to “foreclose on and resell the remaining property to establish its loss” as previously asserted by First American. Stillwater did not disclose that on April 7, 2009, almost a year earlier, it had foreclosed upon the remaining collateral with a bid price of $5.6 million. Stillwater filed suit against First American on Monday, April 19, 2010. First American asserts that it did not learn that Stillwater had foreclosed and the total amount of its bids until after Stillwater had filed suit against it seeking bad faith damages.

Based upon its contention that Stillwater’s “actual monetary loss or damage” was not fixed until Stillwater foreclosed upon its remaining collateral, as well as Stillwater’s failure to inform First American of its foreclosure sale until after it had filed suit seeking bad faith damages, First American contends it cannot be held liable for bad faith damages and was entitled to summary judgment in its favor. We agree.

While the loss may have occurred by the time Stillwater sent its bad faith demand letter, Stillwater failed to inform First American that it had foreclosed on the remaining collateral almost a year earlier, even though First American had informed Stillwater months before that a foreclosure sale of the collateral was necessary for it to determine whether Stillwater had suffered a loss. Based upon Still-water’s failure to notify First American of critical facts pertaining to its loss in its bad faith demand letter, it cannot hold First American liable for bad faith failure to pay damages.

First American’s failure to take action to settle with BB&T before it foreclosed upon the 48.2 acre tract does not alter this conclusion. While First American may have had the option to take action earlier and settle with BB&T to provide Stillwater with a first-position lien, it was not obligated to do so under the policy. “Bad faith is shown by evidence that under the terms of the policy upon which the demand is made and under the facts surrounding the response to that demand, the insurer had no ‘good cause’ for resisting and delaying payment.” (Citation and punctuation omitted; emphasis in original.) Lawyers Title Ins. Corp. v. Griffin, 302 Ga. App. 726, 731 (2) (b) (691 SE2d 633) (2010).

For the above-stated reasons, we reverse the trial court’s denial of First American’s motion for summary judgment on Stillwater’s bad faith claim under OCGA § 33-4-6.

5. In its remaining enumeration of error, First American claims that the trial court erred by denying partial summary judgment in its favor with regard to Doss’ liability under the agency agreement for attorney fees. We disagree.

Section 11 of the agency agreement between Doss and First American obligated Doss “to indemnify [First American] for all loss, cost or damage which [First American] may sustain or become liable for on account of” various acts. The trial court concluded that the phrase “all loss, cost or damage” did not include attorney fees, based upon its obligation to “strictly construe the contract against the indemnitee.”

In Georgia, “attorney fees are not generally recoverable as damages absent an express provision in a contract or a statutory mandate.” (Citations and punctuation omitted; emphasis in original.) George L. Smith II Ga. World Congress Center Auth. v. Miller Brewing Co., 255 Ga. App. 643, 644 (566 SE2d 361) (2002). See also OCGA § 13-6-11 (“The expenses of litigation generally shall not be allowed as a part of the damages.”) Black’s Law Dictionary defines “express” as follows:

Clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous. Declared in terms; set forth in words. Directly and distinctly stated. Made known distinctly and explicitly, and not left to inference. Manifested by direct and appropriate language, as distinguished from that which is inferred by conduct. The word is usually contrasted with “implied.”

(Citation omitted.) Black’s Law Dictionary, p. 580 (6th ed. 1990).

In this case, one would have to infer that the phrase “loss, cost, or damage” also includes attorney fees, because the indemnity agreement does not set forth the words “attorney fees.” See National Minority &c. v. First Nat. Bank, 83 FSupp.2d 1200, 1205 (III) (B) (4) (D. Kan. 1999). We therefore conclude that the indemnity provision in the agency agreement did not expressly provide for attorney fees, and the trial court properly denied First American’s motion for summary judgment on this issue. See id. at 1206 (B) (5); Bowers v. Fulton County, 227 Ga. 814, 816 (1) (183 SE2d 347) (1971) (“general rule is that attorney fees are not included in the term ‘costs’ or ‘expenses’ in the absence of some statutory provision, rule of court, or by contract of the parties”); George L. Smith II, supra, 255 Ga. App. at 644.

Case No. A13A0988

In this appeal, Doss contends that the trial court erred by granting partial summary judgment in favor of First American with regard to its claim of indemnity against Doss under the agency agreement. The trial court’s summary judgment order states “that Doss has an obligation to indemnify First American for ‘all loss, cost or damage,’ other than attorneys’ fees, incurred in the event of a judgment in favor of Stillwater against First American due to the failure of Stillwater to secure a first priority lien position in the 48.2 acre tract.”

6. Doss contends that the trial court’s ruling was premature because “genuine issues of material fact exist regarding Stillwater’s claims against Doss” and because it could be forced to indemnify First American even if “Stillwater’s claims against Doss are never proven.” We disagree.

The indemnity agreement required Doss

to indemnify [First American] for all loss, cost or damage which [First American] may sustain or become liable for on account of: . . .
b.... (2) Failure of any commitment or policy issued by Agent or through Agent’s office . . .
(c) to reflect an appropriate requirement or exception therein as to any lien, claim, encumbrance or other defect...
(ii) disclosed by the approved attorney’s or title examiner’s title report or opinion, or
(iii) known to Agent (including but not limited to matters not of record); unless Agent is expressly authorized in writing by [First American] to disregard same.

Contrary to Doss’ argument, the plain language of this agreement does not require a judgment against Doss for its liability under the indemnity agreement to be established. Instead, it requires Doss to indemnify First American for First American’s liability as outlined in the indemnity provision. Therefore, a finding of Doss’ liability to Stillwater is not the event which triggers its obligation to indemnify First American.

Here, the record shows, without dispute, that the title policy included the 48.2 acre tract, but did not include an exception for the first-position BB&T mortgage. It also shows, without dispute, that Doss was aware of BB&T’s first-position lien. As Stillwater’s claim against First American is predicated upon the existence of BB&T’s first-position lien, the trial court did not err by concluding that Doss was obligated to indemnify First American in the event that Still-water prevailed against First American on its claim under the policy. See Superior Rigging & Erecting Co. v. Ralston Purina Co., 172 Ga. App. 79, 80 (2) (322 SE2d 95) (1984) (“judgment fixing legal liability is not a condition precedent to recovery pursuant to a contractual indemnity clause”). We therefore affirm the trial court’s grant of partial summary judgment in First American’s favor on the issue of Doss’ liability for indemnity under the agency agreement.

7. Doss’ enumeration of error regarding its obligation to indemnify First American for bad faith damages under OCGA § 33-4-6 is rendered moot by our holding in Division 4 granting summary judgment in favor of First American on Stillwater’s bad faith claim.

Conclusion

8. For the above-stated reasons, we affirm the trial court’s grant of partial summary judgment in favor of First American against Doss with regard to its claim of indemnity under the agency agreement in Case No. A13A0988. In Case No. A13A0989, we affirm the trial court’s denial of First American’s motion for summary judgment with regard to its liability to Stillwater under the policy and reverse the trial court’s denial of summary judgment to First American with regard to its liability for bad faith damages. We affirm the trial court’s grant of summary judgment in favor of Doss on the issue of Doss’ liability for attorney fees under an indemnity agreement. In Case No. A13A0990, we conclude that genuine issues of material fact preclude summary judgment in favor of Doss on Stillwater’s claim for damages under an oral escrow agreement.

Judgment affirmed in Case No. A13A0988. Judgment affirmed in part and reversed in part in Case No. A13A0989. Judgment reversed in Case No. A13A0990.

Ellington, P. J., concurs. Phipps, C. J., Barnes, P. J., Doyle, P. J., and Branch, J., concur fully in all but Division 3 and in judgment only as to Division 3. McFadden, J., concurs fully in all but Divisions 3 and 4, dissents as to Division 3, and concurs in judgment only as to Division 4.

DOYLE, Presiding Judge,

concurring specially.

I concur fully in all but Division 3. I concur in the judgment in Division 3, but disagree that the policy language is too vague or uncertain to be enforced.

In order to determine if there is coverage and the amount, if any, we look to Sections 7 and 9 of the title insurance policy. Section 7 (a), “Determination and Extent of Liability,” provides:

The liability of the Company under this policy shall not exceed the least of: (i) the amount of Insurance stated in Schedule A, . . . ; (ii) the amount of the unpaid principal indebtedness secured by the insured mortgage... as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage insured against by this policy, occurs, together with interest thereon; or (iii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this policy.

Here, under Section 7 (a) (i), the amount set forth in Schedule A is $4.75 million. Under Section 7 (a) (iii), the difference in value of the property as insured and its value subject to the defect, lien, or encumbrance is greater than zero. This leaves only a determination of the value under Section 7 (a) (ii). If such value is less than or equal to zero, summary judgment in favor of First American is proper. If not, summary judgment should be denied.

Section 7 (a) (ii) is a determination of the amount of unpaid principal indebtedness, which in this case is determined by the calculations set forth in Section 9 (b) for the reduction of insurance, which provides:

Payment in part by any person of the principal of the indebtedness, or any other obligation secured by the insured mortgage, or any voluntary partial satisfaction or release of the insured mortgage, to the extent of the payment, satisfaction or release, shall reduce the amount of insurance pro tanto.

Here, the amount of unpaid principal indebtedness is the amount of principal remaining on the loan after the application of the foreclosure payment, first to accrued interest, with any balance applied to principal. Because the amount of unpaid principal indebtedness remaining is greater than zero, First American is not entitled to summary judgment.

I am authorized to state that Chief Judge Phipps and Presiding Judge Barnes concur in judgment only.

McFADDEN, Judge,

concurring in part and dissenting in part.

I concur fully in all but Divisions 3 and 4.1 respectfully dissent in Division 3 and concur in the judgment only in Division 4.1 would hold, as to Division 3, that the title insurance company, First American, has no liability on the subject claim and, as to Division 4, that the insurance company is consequently entitled to summary judgment on the attorney fees claim against it.

The issue that divides us is the construction and application of Section 7 (a) of the policy, which sets out the extent of the insurer’s liability on the subject claim. To paraphrase Section 7 (a), it sets that liability at the least of three specified amounts: (i) the amount of coverage available; (ii) the value of the property interest insured; or (iii) the amount of the loss.

More particularly, our disagreement focuses on Section 7 (a) (ii). Like Presiding Judge Doyle, I would hold that Section 7 (a) (ii) is enforceable. But she and I part ways as to its proper construction. I am persuaded by the argument of the title insurance company, that the parties agreed only to coverage of the value of the title insured — that is, the value of the security interest its insured, Stillwater, was to have acquired — and that the insurance contract was not intended to cover the full benefit of the insured’s bargain with its borrower. And I am persuaded that Section 7 (a) (ii) gives effect to that intent by specifying that the insurer would be liable only for the principal amount of the secured debt, not for interest or for other payments to which the insured may have been entitled under the terms of its agreement with its borrower.

Section 7 (a) (ii) specifies that the insurer’s liability shall not exceed “(ii) the amount of unpaid principal indebtedness secured by the insured mortgage ... as reduced under Section 9 ... at the time [of] the loss or damage, . . . together with interest thereon.”

Section 9 repeatedly makes clear that those reductions include payments and parts of payments that, as between insured Stillwater and its borrower, would be allocated to interest. Section 9 provides:

(a) All payments under this policy, except payments made for costs, attorneys’ fees and expenses, shall reduce the amount of the insurance pro tanto. However, any payments made prior to the acquisition of title to the estate or interest as provided in Section 2 (a) of these Conditions and Stipulations shall not reduce pro tanto the amount of the insurance afforded under this policy except to the extent that the payments reduce the amount of indebtedness secured by the insured mortgage.
(b) Payment in part by any person of the principal of the indebtedness, or any other obligation secured by the insured mortgage, or any voluntary partial satisfaction or release of the insured mortgage, to the extent of payment, satisfaction or release, shall reduce the amount of insurance pro tanto. The amount of insurance may thereafter be increased by accruing interest and advances made to protect the lien of the insured mortgage and secured thereby, with interest thereon, provided in no event shall the amount of insurance be greater than the Amount of Insurance stated in Schedule A.
(c) Payment in full by any person or the voluntary satisfaction or release of the insured mortgage shall terminate all liability of the Company except as provided in Section 2 (a) of these Conditions and Stipulations.

(Emphasis supplied.)

It is undisputed that the initial principal amount of the loan was $4.75 million and that the foreclosure proceeds were $5.6 million. The foreclosure proceeds in this case are payments identified in Section 9 (b), emphasized above, in that they are payments on the principal and other obligations (e.g., interest) secured by the insured mortgage. Read together, Sections 7 (a) (ii) and 9 require that the amount of the foreclosure proceeds be subtracted from the principal amount and provide that, as the sum is less than zero, the insurance company has no liability.

Contrary to the majority opinion, Section 7 (a) (ii) is not incomprehensible. It is not too vague and uncertain to be enforced.

The cardinal rule of contract construction is to ascertain the intent of the parties at the time they entered the agreement. If that intention is lawful and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical and arbitrary rules of [contract] construction.

Gonzalez v. Crocket, 287 Ga. 430, 433 (696 SE2d 623) (2010) (citation omitted). This rule requiring us to give a contract “that meaning which will best carry into effect the intent of the parties,” as with other pertinent rules of contract interpretation, must be applied before we can reach a conclusion concerning whether a contract has the required definiteness to be enforced. See McLendon v. Priest, 259 Ga. 59, 60 (376 SE2d 679) (1989).

“[Wjhenever possible, a contract should not be construed in a manner that renders any portion of it meaningless.” Schwartz v. Schwartz, 275 Ga. 107, 109 (2) (561 SE2d 96) (2002) (citations omitted). “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part[.]”OCGA § 13-2-2 (4).

We must therefor presume that when the parties included in Section 7 (a) (ii) a provision that First American’s liability “shall not exceed . . . the amount of unpaid principal indebtedness secured by the insured mortgage ... as reduced under Section 9 ... at the time [of] the loss or damage, . . . together with interest thereon,” they intended the phrase “as reduced under Section 9” to have some meaning.

It is true that Section 9 addresses the amount of coverage provided by the policy as a whole, while Section 7 addresses First American’s liability for particular claims. This does not make it impossible, as the majority contends, to discern meaning from the reference to Section 9 within Section 7. While insurance coverage and liability for a particular claim are different, they are closely related. Indeed it would be remarkable if the formulae for calculating them did not contain overlapping elements. So there is no logical impediment to incorporating components of Section 9’s formula for calculating insurance coverage into Section 7 (a)’s formula for calculating liability. Both sections can and should be read to reflect the parties’ intent to cover only the value of the insured’s security interest and not to extend coverage under the policy to the full benefit of the insured’s bargain with its borrower. So the phrase “as reduced under Section 9” should be construed to mean that the calculations prescribed in Section 9 for determination of the coverage provided by the policy as a whole are to be adapted to the calculation of First American’s liability under Section 7 (a) (ii) for the particular claim at issue.

By clear implication, Section 7 (a) (ii) prescribes that the payments used in the formula for calculating insurance coverage under Section 9 are also to be used in the formula for calculating liability under Section 7. But even if, as the majority asserts, the phrase “as reduced under Section 9” renders Section 7 (a) (ii) incomprehensible, we are authorized and directed to add language to make that implied prescription explicit. OCGA § 13-2-2 (6) directs, “In extreme cases of ambiguity, where the instrument as it stands is without meaning, words may he supplied.”

Section 7 (a) (ii) unambiguously expresses the parties’ intent that First American not be liable for more than the amount of the unpaid principal indebtedness. While it would be entirely possible and sensible to write a policy to impose liability for accrued interest as well, the language of this policy did not do so.

Presiding Judge Doyle’s special concurrence would have us interpret the phrase “unpaid principal indebtedness,” as that phrase is used in Section 7 (a) (ii), to — in effect — include both principal and interest. But even if we ignore Section 9, that interpretation is unsustainable. It is contrary to the plain meaning of that phrase. The phrase refers only to principal. See OCGA § 13-2-2 (2) (words in contracts “generally bear their usual and common signification”).

OCGA § 7-4-17, cited in the special concurrence, is not applicable here, even though it controls allocations of payments to principal and interest. That Code section regulates the rights and obligations of debtors and creditors, not insurers and insureds. And that Code section does not undertake to define “unpaid principal indebtedness.”

It is true that Section 7 (a) (ii) does contain language providing that the insurance company can be liable for “interest thereon.” But that language refers to interest on the amount the insurance company owes to its insured. That language does not contradict the other language limiting the amount the insurer owes its insured on this claim to the principal amount of the indebtedness.

Decided December 13, 2013

Hawkins, Powell, Thackston & Young, H. Lane YoungII, Jackson A. Dial, for Doss & Associates.

Morris, Manning & Martin, Lewis E. Hassett, Shannon A. McNulty, John B. Vitale, for First American Title Insurance Company, Inc.

Foltz, Martin & Knapp, Halsey G. Knapp, Jr., Jonathan E. Hawkins, for Gerova Asset Backed Holdings, L.P.

Here that unpaid principal indebtedness, and therefore the insurance company’s liability on the policy, is zero. The foreclosure proceeds in this case constituted a payment on the loan. See Balboa Life & Cas. v. Home Builders Finance, 304 Ga. App. 478, 479 (1) (697 SE2d 240) (2010). At $5.6 million, those proceeds alone exceeded the amount of principal that Stillwater loaned to its borrower. First American has no liability to Stillwater under Section 7 of the policy and is entitled to summary judgment thereon.

       Stillwater later changed its name to Gerova Asset Backed Holdings, L.P. (“Gerova”). Because all of the relevant documents and the parties’ briefs refer to Gerova as Stillwater, the opinion will also refer to Gerova as Stillwater.

       Based upon the trial court’s ruling, Stillwater’s claim based upon Doss’ breach of a closing protection letter remains pending below.

       Prouty disputes Doss’ interpretation of her e-mail and contends that she was clearly referring to a different tract that was not part of the closing and for which no title had previously been examined.

       Prouty testified in her deposition that she was assured by Tipton on December 22, 2006 that Steve Carroll, who guaranteed the loan, had obtained the subordination agreement and would deliver it later that day. She further testified that she funded the loan based upon this representation.

       Section 2 of the policy is titled “Continuation of Insurance” and subsection 2 (c) is titled “Amount of Insurance.”

       Section 7 (a) (i) provides that one alternative calculation of First American’s potential liability under the policy is “the amount of Insurance stated in Schedule A, or, if applicable, the amount of insurance defined in Section 2 (c) of these Conditions and Stipulations.”

       The phrase “any other obligation secured by the insured mortgage” in Section 9 (b) would certainly include accrued interest.

       See, e.g., OCGA §§ 13-2-2 and 33-24-16.

       As one court has noted, “It is all too clear that contract language, while at times a great explainer, is at times a great obscurer. It is incumbent upon insurance companies to state clearly the perimeters of their coverage to those who entrust their security to them.” Ranger Ins. Co. v. Culberson, 454 F2d 857, 867 (III) (5th Cir. 1972).

       The policy included the following severability clause: “In the event any provision of this policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect.”

       Section 9 (b), standing alone after Section 7 (a) (ii) is severed from the policy, cannot be used to calculate First American’s liability under the policy. As stated previously, Section 9 (b) only provides a calculation for a reduction in the amount of insurance. While Section 7 (a) (i) could be interpreted to include the amount of insurance calculated under Section 9 (b), it could be interpreted in the alternative as including only the amount of insurance stated in Schedule A or defined in Section 2 (c) of the policy. As any ambiguity regarding the interplay of Section 9 (b) and Section 7 (a) (i) must be construed against the insurer, Section 9 (b) should not be used to determine First American’s liability under Section 7 (a) of the policy. See State Farm Mut. Auto. Ins. Co., supra, 286 Ga. at 25.

       While it could be argued that “as insured” refers to the amount of insurance, any ambiguity must be construed against the insurer and in favor of coverage. See State Farm Mut. Auto. Ins. Co., supra, 286 Ga. at 25.

       The record shows that BB&T actually foreclosed on July 7, 2009.

       One of Stillwater’s foreclosure sales was confirmed on September 24,2009 in the amount of $900,000. The others were confirmed on October 19, 2010 in the amount of $4.7 million. In each confirmation order, the superior court concluded that the property had sold on April 7, 2009 for its true market value.

       Consideration of the amount obtained by a mortgagee through foreclosure of collateral is a recognized method for determining whether the mortgagee has suffered an actual monetary loss covered by the policy. See Chicago Title Ins. Co. v. Huntington Nat. Bank, 87 Ohio St. 3d 270, 275 (719 NE2d 955) (1999); Foothill Capital Corp. v. Commonwealth Land Title Ins. Co., 1987 U.S. Dist. LEXIS 13783, *6 (E.D. Pa., decided November 13, 1987). Cf. Balboa Life and Cas. v. Home Builders Finance, 304 Ga. App. 478, 480 (1) (697 SE2d 240) (2010) (lender entitled to recover net loss after foreclosure from fire insurance carrier).

       As one commentator has noted,
      the insurer’s liability to pay monetary compensation under the policy does not arise immediately upon the existence of a covered defect [in the title] being proved. In fact, because the “defect” or “encumbrance” at issue may arise in various contexts ..., title insurance policies commonly afford the insurer a range of options by which it may fulfill its obligations pursuant to the policy.
      Couch on Insurance 3rd Ed., § 159:9 (2012).

       We note First American’s reliance upon a federal decision concluding that an indemnity agreement encompassed attorney fees based on the phrases “any and all loss, cost, damage and expense” and “all loss, damage, and expense.” Brown v. Seaboard Coast Line R. Co., 554 F2d 1299, 1304 (III) (5th Cir. 1977). We are not persuaded by the Fifth Circuit’s interpretation, however, because it overlooked the long-standing Georgia rule that attorney fees cannot be recovered in the absence of an express contract provision and applied a federal rule interpreting indemnity agreements broadly with regard to the type of damages recoverable. See Agulnick v.

        American Hosp. Supply Corp., 507 FSupp. 135, 137 (Mass. 1981) (noting “general interpretive rule in federal court that indemnity provisions will be broadly construed once the right to indemnification [is] established”).
      In its motion for reconsideration, First American cites for the first time to our opinion in Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 776-777 (5) (503 SE2d 649) (1998), as authority authorizing its recovery of attorney fees under the indemnity agreement. In Davis, we remanded the case to the trial court for an evidentiary hearing to establish the amount of attorney fees owed under an indemnification agreement, because a portion of the fees might have been incurred in connection with claims for which no indemnity was owed. Id. We did not address whether the particular language of the indemnity agreement authorized the recovery of attorney fees, and this issue was not raised by the parties. While a portion of the indemnity agreement was quoted in the opinion, Davis did not hold and does not stand for the proposition that the phrase “all loss, cost or damage” should be construed to include attorney fees.

       Taking Stillwater’s allegations as true, Stillwater was granted a deed to secure debt on seven parcels of property. Because Doss failed to properly secure Stillwater a first position lien on all seven tracts, Stillwater was limited to foreclosing on only six tracts, and therefore, it has been damaged in some amount greater than zero.

       Section 9 (b) also allows, after any such payment, satisfaction or release, for the amount of insurance to increase by accruing interest and advances made to protect the lien, “provided in no event shall the amount of insurance be greater than the amount of insurance stated in Schedule A.” Whether or not any interest has accrued since the foreclosure or advances have been made does not impact the outcome of this appeal because it is for the parties to prove any such amounts at trial.

       As the majority concludes, the phrase “any other obligation” contained in Section 9 (b) includes interest payments. Here, the deed to secure debt in this case provides that payments towards the debt are applied first to interest and then to principal, which comports with OCGA § 7-4-17 (“When a payment is made upon any debt, it shall be applied first to the discharge of any interest due at the time, and the balance, if any, shall be applied to the reduction of the principal. . . .”). The title policy is silent with regard to the order of the application of principal and interest payments.

       The language “together with interest thereon” set forth in Section 7 (a) (ii) is not vague or ambiguous. Once the amount of “unpaid principal indebtedness” is determined, the insured can recover “interest thereon.” OCGA § 7-4-2 (a) (1) (A) sets forth the legal rate of interest as “[seven] percent per annum simple interest where the rate percent is not established by written contract.” The insurance policy in this case does not identify a specific interest rate.


author: Miller, Judge.

text:
    A13A1783.
    CLARKE v. THE STATE.
    (753 SE2d 134)
   Miller, Judge.

Following a jury trial, Oniel Warren Clarke was convicted of two counts of financial transaction card fraud (OCGA § 16-9-33 (a) (2) (D)). Clarke appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motions to strike two jurors for cause. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury verdict, the evidence shows that in October 2007, Clarke visited a Rick Case dealership to have service performed on his vehicle. Clarke was billed $1,754.30 for the service, and he paid with a MasterCard credit card issued to another individual. When the true cardholder disputed the charge on the basis that it was unauthorized, Rick Case received a statement indicating that it would be charged for the transaction amount. Rick Case never received payment for the October 2007 service.

Several months later, in March 2008, Clarke returned to Rick Case to have additional service performed on his vehicle. Clarke was billed $3,095.95 for the service, and as a partial payment against this bill, he made an unauthorized charge of $745.95 on an American Express account belonging to another individual. The matter was referred to the police for investigation, and Clarke ultimately was charged with credit card fraud.

On appeal, Clarke contends that the trial court erred in denying his motions to strike two jurors who expressed bias and partiality. We disagree.

Whether to strike a juror for cause is within the sound discretion of the trial court, and we will not reverse a trial court’s exercise of that discretion absent a manifest abuse of discretion. Poole v. State, 291 Ga. 848, 851 (3) (734 SE2d 1) (2012). Jurors are presumed to be impartial, and the challenger bears the burden of proving the juror’s partiality. Id. at 852 (3). Before a potential juror can be disqualified for cause on the ground that his or her ability to be fair and impartial is substantially impaired, the challenger must show that a potential juror’s opinion “is so fixed and definite that the juror will not be able to set it aside and decide the case on the evidence or the court’s charge on the evidence.” (Citation omitted.) Id. A juror’s opinion of his qualification to serve is not determinative of the issue of his ability to be fair and impartial. Id. at 851 (3). Where there is some hint that a juror’s ability to be fair and impartial is impaired, the trial court abuses its discretion by limiting inquiry into any potential bias. Doss v. State, 264 Ga. App. 205, 210 (4) (590 SE2d 208) (2003). The parties and the trial court are permitted to ask questions that might rehabilitate a juror, but it is improper to “browbeat the juror into affirmative answers to rehabilitative questions by using multiple, leading questions.” (Footnote omitted.) Id. at 210-211 (4).

(a) Clarke first asserts that the trial court erred in failing to grant his motion to strike Juror 9. During voir dire, Juror 9 stated that three retail stores that he owned had experienced credit card fraud and other theft, and that his personal credit card and his wife’s financial information had also been compromised. When the prosecutor asked Juror 9 whether he could be impartial and fair based on those experiences, Juror 9 responded, “Do you think so?,” and then, “No.” The prosecutor then asked the following questions:

What you’re saying is: If you had to sit and hear all of the witnesses testify and hear what they have to say, and then were given the law by the judge, do you think you could apply that law to the testimony you hear and come to a legal decision in this case, being fair to both the defendant and the State? Do you think you can do that?

Juror 9 responded in the affirmative. Clarke also asked Juror 9 whether he could reach a verdict based solely on the evidence and law and not on his personal experiences. Juror 9 responded that he could.

Clarke moved to strike Juror 9 for cause, arguing that his “Do you think so?” comment revealed a clear bias and inability to be impartial. The trial court noted that Juror 9’s initial response did not allay concerns about his impartiality. Nevertheless, the trial court found that Juror 9’s subsequent statements revealed that he could be fair and impartial and, as a result, the trial court denied Clarke’s motion to strike.

Although Juror 9 initially expressed doubt about his ability to be fair and impartial, he ultimately confirmed that he could be fair and impartial in reaching a verdict and that he would not let his past experiences affect his ability to reach a verdict. Additionally, while Juror 9, as a business owner, was the victim of credit card fraud, there is no per se rule excluding the victims of crime, even if the crime charged in the indictment is similar to the crime of which the potential juror was a victim. See Doss, supra, 264 Ga. App. at 211 (4). Contrary to Clarke’s arguments, the prosecutor did not incessantly interrogate Juror 9 in an attempt to rehabilitate him. The prosecutor asked only two follow-up questions, which were similar to the questions asked by Clarke. There is no evidence that the trial court limited inquiry or allowed the prosecutor to “browbeat” Juror 9. Additionally, Juror 9’s answers to the prosecutor and to Clarke show that his opinion was not so fixed and definite that it could not be set aside to decide the case upon the evidence and the law. Under these facts, there was no manifest abuse of the trial court’s discretion in not excusing Juror 9. See Clarke v. State, 292 Ga. 305, 308 (2) (737 SE2d 575) (2013) (although juror initially expressed some doubts about her impartiality, she ultimately confirmed that she was a fair person and did not want to let emotions affect her judgment).

(b) Clarke also challenges the denial of his motion to strike Juror 23, who stated that she was the victim of identity theft. Juror 23 stated that, as a result of the identity theft, she almost lost her house and had to go through “a lot of rigmarole.” Juror 23 then expressed reservations about her impartiality, stating she hoped she would be alright. Although indicating doubts about her ability to remain impartial, Juror 23 stated that she was not leaning toward the defense or the State and that she believed she could limit her consideration to the law and the trial evidence.

Decided December 13, 2013.

Clegg & Petrey, John H. Petrey, for appellant.

Daniel J. Porter, District Attorney, Justin D. Unger, Assistant District Attorney, for appellee.

Notwithstanding Juror 23’s professed doubts about her ability to be impartial, her doubt did not demand as a matter of law that she be excused for cause. Ellis v. State, 292 Ga. 276, 284 (4) (b) (736 SE2d 412) (2013). Where, as here, the juror states that she will try to decide the case based on the evidence and law, excusing the juror for cause is not mandated. Id. Furthermore, the voir dire transcript does not reveal that Juror 23 was coercively rehabilitated or that she professed to have a fixed and definite opinion as to Clarke’s guilt. Accordingly, the trial court did not abuse its discretion in denying Clarke’s motion to strike Juror 23.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       See Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).


text:
    A13A1867.
    THORNTON v. THE STATE.
    (753 SE2d 139)
   Miller, Judge.

Latoya Thornton was charged by accusation with the offense of simple battery. Thornton filed a general demurrer and motion to quash the accusation on the ground that the accusation was fatally defective since it charged “Latoia Jordan,” a person not known to Thornton. The trial court denied Thornton’s motion, concluding the accusation was not rendered defective due to a fatal variance because it charged her as the perpetrator by use of an alias, which constituted a permissible misnomer. This Court granted Thornton’s application for interlocutory appeal. On appeal, Thornton contends the accusation should have been quashed because it charged her with a name by which she is not known. For the reasons that follow, we affirm.

The record shows that in February 2006, Thornton was arrested on the charge of simple battery and transported to the Fulton County Jail, where she was booked under the name “Latoia Jordan.” Thornton admitted that between 2005 and 2012, she had been arrested and transported to the Fulton County Jail at least three times, and each time she was processed under the name Latoia Jordan. Thornton stated that her date of birth was February 7,1974, and this matched the information on the booking sheet for Latoia Jordan. Following her arrest, Thornton was released on bond.

The State charged Thornton by accusation in January 2008. The accusation — Case No. 08CR329759 — listed the name Latoia Jordan. In August 2008, the trial court forfeited Latoia Jordan’s bond due to her failure to appear and ordered an execution hearing. The trial court subsequently entered an order relieving the surety of liability, and in its order, the trial court specifically listed Latoia Jordan’s alias as Latoya Thornton.

In September 2012, Thornton signed a waiver for formal arraignment in this case — the January 2008 accusation filed against Latoia Jordan. She then filed a general demurrer and motion to quash the accusation on the ground that it charged a person not known to Thornton. The trial court denied her motion, and this appeal ensued.

Thornton contends that the accusation is fatally defective because it charged by a name by which she is not known. We disagree.

Although styled as a general demurrer and motion to quash accusation, Thornton’s motion in substance was a plea of misnomer. See Miller v. State, 264 Ga. App. 801, 803 (b) (592 SE2d 450) (2003) (noting that in reviewing filings, we look to substance over nomenclature). In a plea of misnomer, the defendant generally claims that she is not the person named in the indictment or accusation, and that she is not known or called by the name of the accused. See OCGA § 17-7-112. “However, a defendant may be indicted [or charged by accusation] properly under a name by which [s]he is generally known and called, whether this be [her] true name or not.” (Punctuation and footnote omitted.) Vanorsdall v. State, 241 Ga. App. 871, 876 (2) (d) (528 SE2d 312) (2000). Consequently, to sustain a plea of misnomer, the accused must show that she was never known under the name used in the accusation. See Walker v. State, 113 Ga. App. 526, 527 (1) (149 SE2d 153) (1966).

In this case, the record supports the trial court’s decision that the accusation properly charged Thornton. Notably, Thornton admitted that she had been previously arrested and booked into jail under the name Latoia Jordan, and Jordan’s listed date of birth matched that of Thornton. Additionally, Thornton signed a waiver of formal arraignment in this case, which specifically listed her name as Jordan a/k/a “Thornton.” Consequently, contrary to Thornton’s claims, the evidence clearly shows that Jordan was another name by which Thornton was known.

In support of her argument, Thornton cites to Culpepper v. State, 173 Ga. 799 (161 SE 623) (1931) and Noeske v. State, 181 Ga. App. 778 (353 SE2d 635) (1987), but those cases are inapposite. Although

Decided December 13, 2013.

Jonathan M. Kester, Jackie G. Patterson, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Culpepper stated that omission of the defendant’s surname constituted a fatal variance, the fatal defect in the accusation was that it did not designate the defendant by his own proper name or misnomer as the perpetrator of the offense charged. Culpepper, supra, 173 Ga. at 800. In Noeske, the accusation was fatally defective because it clearly charged someone other than the defendant. See Noeske, supra, 181 Ga. App. at 779-780 (2). The reason the accusations in Culpepper and Noeske were fatal was that they designated a distinct and separate person as the perpetrator of the offense. In this case, however, Thornton does not make a claim that she was not the person charged with simple battery for the underlying incident. Indeed, she admits to having been arrested for the offense and that she would be able to defend herself against the pending charges. Rather, her claim is that she was accused under the wrong name, but this is insufficient to carry her burden to sustain a plea of misnomer because the evidence shows that she was known by Latoia Jordan. See Walker, supra, 113 Ga. App. at 527 (1). Moreover, notice provided by use of an alias or other name by which a defendant is known is constitutionally sufficient. State v. Grube, 293 Ga. 257, 261 (2) (744 SE2d 1) (2013). Accordingly, we affirm the trial court’s denial of Thornton’s general demurrer and motion to quash accusation.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.