text:
    A14A0702.
    J. H. HARVEY CO., LLC v. FREEMAN.
    (757 SE2d 454)
   ELLINGTON, Presiding Judge.

The State Court of Ware County denied the motion for summary judgment filed by J. H. Harvey Co., LLC (“Harvey”) in this slip and fall case filed by Ellaree Freeman. We granted Harvey’s application for an interlocutory appeal to consider whether the trial court erred in denying Harvey’s motion without hearing oral argument. The relevant facts are undisputed, and our review is de novo. The record shows that, on the same day that Harvey filed its motion for summary judgment, December 11, 2012, it also filed as a separate pleading a Request for Oral Hearing. Under Georgia law, Harvey was therefore absolutely entitled to an oral hearing before the court ruled on the motion, as Freeman concedes. Moreover, we discern no basis for finding that any conduct of Harvey waived its right to a hearing. Because the trial court denied Harvey’s motion for summary judgment without conducting a hearing as required, its ruling must be vacated and this case must be remanded for a hearing on the motion. Howard v. McFarland, 233 Ga. App. 286, 287 (503 SE2d 900) (1998).

Decided April 3, 2014.

Hall Booth Smith, M. Beth Boone, William S. Mann, Michael G. Frick, for appellant.

Farah & Farah, Kevin M. Elwell, for appellee.

Judgment vacated and case remanded.

Phipps, C. J., andMcMillian, J., concur.

        Green v. Raw Deal, 290 Ga. App. 464, 465 (659 SE2d 856) (2008).

       [O]ral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled “Request for Oral Hearing,” and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.
      Uniform Superior Court Rule 6.3.
      [A] party who files a timely written request for oral argument on a motion for summary judgment is absolutely entitled to one under Uniform Superior Court Rule 6.3. . . . And a court’s error in failing to grant a hearing can never be held harmless[, although under certain circumstances]... the failure to hold the hearing can ... be waived by a party’s conduct.
      (Punctuation and footnotes omitted.) Hunt v. Thomas, 296 Ga. App. 505, 506 (1) (675 SE2d 256) (2009). See also Fulton County Taxpayers Foundation v. Ga. Pub. Svc. Comm., 287 Ga. 876, 877 (1) (700 SE2d 554) (2010) (“[Georgia’s] appellate courts have consistently held that once a party has filed a [timely] written request for oral argument of a summary judgment motion [pursuant to Uniform Superior Court Rule 6.3], the trial court is obligated to hold an oral hearing and the failure to do so cannot be harmless.”) (citations omitted); Kelley v. First Franklin Financial Corp., 256 Ga. 622, 623 (351 SE2d 443) (1987) (“[Uniform Superior Court] Rule 6.3 insures a right to oral argument of a summary judgment motion by declaring it shall be permitted upon written request. Thus, whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. All a party need do is make a written request for oral argument and it shall be held.”) (citations, punctuation and emphasis omitted); Green v. Raw Deal, 290 Ga. App. at 465-466 (1) (accord); Howard v. McFarland, 233 Ga. App. 286, 287 (503 SE2d 900) (1998) (“[A]ppellate review of the record is no viable substitute for the opportunity to argue before the trial court. Where the trial court has not had the opportunity to consider the arguments of counsel at a timely requested hearing, appellate review of the record is premature. Indeed, oral argument may illuminate issues obscured by the record or result in admissions by counsel that affect the summary judgment analysis.”) (citation and punctuation omitted).


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge. BRANCH, Judge,

license: Public Domain

text:
    A13A1963.
    KAUTZ v. POWELL et al.
    (755 SE2d 330)
   ELLINGTON, Presiding Judge.

Kelly Kautz, in her official capacity as the Mayor of the City of Snellville, filed a complaint against the members of the city council and the city attorney, seeking, inter alia, a declaratory judgment that she, as mayor, has the sole authority to terminate the employment of the city attorney. The trial court ruled against her, concluding that, under the city’s charter, such authority is vested in the city council. Kautz appeals, and we affirm.

1. Kautz contends that the trial court erred, arguing that, because the charter expressly authorizes the mayor to hire the city attorney, the charter also implicitly gives the mayor the sole authority to terminate the city attorney’s employment. We disagree.

It is undisputed that the charter does not expressly give the mayor or any other officer sole authority to terminate the employment of any appointed city officer (which includes the city attorney). Further, Section 2.16 of the charter provides as follows: “Except as otherwise provided by law or this [cjharter, the city council shall be vested with all the powers of government of this city.” Therefore, as the trial court properly concluded, “the General Assembly expressly and comprehensively reserved all other powers [not otherwise expressly delegated] to the city council under Section 2.16[.] . . . Thus, there is no gap in the allocation of power in the [c]harter from which an implied power could arise.”

It follows that, because the charter does not expressly provide that the mayor (or any other officer) has the sole authority to terminate the city attorney’s employment, that power is vested solely in the city council under Section 2.16, and it is neither necessary nor allowable for a court to construe the unambiguous provisions of the charter as implicitly giving the mayor such authority. See Glynn County v. Waters, 268 Ga. 500, 502 (2) (491 SE2d 370) (1997) (County officials “can exercise no powers except such as are expressly given or are necessarily implied from express grant of other powers, and if there is a reasonable doubt of the existence of a particular power, this doubt is to be resolved in the negative.”) (citation and punctuation omitted; emphasis supplied). Consequently, the trial court did not err in ruling against Kautz on her petition for a declaratory judgment on this issue.

2. Kautz also contends that, during a hearing on her request for declaratory judgment and a related motion by one of the defendants, the trial court improperly limited her counsel’s efforts to present her case. This contention lacks merit.

The record shows that the city attorney filed a motion to dismiss the complaint as to him as a defendant. The trial court issued a rule nisi for a hearing to address both the motion to dismiss and Kautz’s request for a declaratory judgment on the mayor’s authority to terminate the city attorney’s employment. At the beginning of the hearing, Kautz’s counsel stated that he had just filed an amended complaint in which Kautz asserted additional claims and that he had brought several documents that the court would need to consider in ruling upon the complaint, adding that it “would probably [take] several days to get the entire case tried[.]” The court responded, “We’re not here to try the case. We’re here on some very limited issues.” After a brief discussion, the court stated that the main issue to be addressed during the hearing was the motion to dismiss and, because there was limited time that day for the hearing, “we’ll just see how far we can go, okay?” Following those statements, Kautz’s counsel did not object to proceeding with the hearing or request a continuance.

Accordingly, we conclude that Kautz acquiesced in the court’s manner of conducting the hearing and is, therefore, barred from complaining about that procedure on appeal. Davis v. Phoebe Putney Health System, 280 Ga. App. 505, 506 (1) (634 SE2d 452) (2006) (“A party cannot participate and acquiesce in a trial court’s procedure and then complain of it.”) (citation omitted).

3. Finally, the appellees’ motion to dismiss this appeal is denied.

Judgment affirmed.

Phipps, C. J., Miller and McMillian, JJ., concur. Andrews, P. J., Barnes, P. J., and Branch, J., dissent.

BRANCH, Judge,

dissenting.

The Snellville city charter grants the mayor, and not the city council, the power to hire the city attorney. Under longstanding Georgia law, the governmental official or entity granted the power to hire a public attorney for an indefinite term necessarily possesses the power to remove that attorney. I therefore dissent.

Section 3.12 of the city charter provides: “The mayor shall appoint a city attorney, together with such assistant city attorneys as may be authorized, and shall provide for the payment of such attorney or attorneys for services rendered to the city.” (Emphasis supplied.) The majority construes this command as excluding a mayor’s concomitant power to remove a city attorney. In doing so, the majority authorizes a stalemate scenario in which the city council could effectively nullify the charter’s command by removing any and all city attorneys duly appointed by the mayor. I cannot condone this result. See United Healthcare of Ga. v. Ga. Dept. of Community Health, 293 Ga. App. 84, 90 (666 SE2d 472) (2008) (“statutory construction must square with common sense and reasoning, and a statute should not he interpreted in a manner that would lead to an absurd result”) (citation and punctuation omitted).

The Supreme Court of Georgia has long held, moreover, that a person or entity possessing the authority to hire a public official for an indefinite term necessarily also possesses the authority to terminate that official’s service.

[Wjhere the tenure of [an] office is not prescribed by law, the power to remove is an incident to the power to appoint.... In such a case[, the appointee holds at the pleasure of the appointing power]. [N]o formalities such as the preferring of charges against, or the granting of a hearing to the incumbent, are necessary to the lawful exercise of the discretionary power of removal.

(Emphasis supplied.) Bailey v. Dobbs, 227 Ga. 838, 839 (1) (183 SE2d 461) (1972), quoting Wright v. Gamble, 136 Ga. 376, 378 (71 SE 795) (1911); see also Clark v. Head, 272 Ga. 104, 105-106 (2) (526 SE2d 859) (2000) (an assistant district attorney served “at the pleasure of the district attorney,” who, as a public officer, “[could] not be hampered in the administration of duties to the public by employee contracts”) (punctuation omitted). It is undisputed that the Snell-ville city attorney does not serve for any specified term. Accordingly, the mayor of Snellville has the power to terminate the city attorney.

Decided March 19, 2014

Reconsideration denied April 4, 2014

Akin & Tate, S. Lester Tate HI, Krevolin & Horst, Zahra S. Karinshak, Phyllis Miller, for appellant.

Kelly D. Kautz, pro se.

Webb, Tanner, Powell, Mertz & Wilson, Anthony O. L. Powell, Robert J. Wilson, Rubin Lublin, Jody C. Campbell, Drew, Eckl & Farnham, Kathryn S. Whitlock, Hawkins, Parnell, Thackston & Young, Elizabeth K McGrath, for appellees.

Both the trial court and the majority rely on Section 2.16 of the charter, which reserves unenumerated powers to the city council, to reach the conclusion that because “the General Assembly expressly and comprehensively reserved” all powers “not expressly delegated to the city council,” the mayor cannot claim any implied power to remove the city attorney. But Section 2.16 itself provides that the city council “shall be vested with all the powers of government” of the city of Snellville “[e]xcept as otherwise provided by law or this Charter[.]” The longstanding rule outlined above is precisely such law, mandating that the mayor of Snellville, having been granted the power to appoint a city attorney as a public official under the city charter, possesses the power to remove that official.

For these reasons, I respectfully dissent.

I am authorized to state that Presiding Judge Andrews and Presiding Judge Barnes join in this dissent.

       Section 3.12 of the charter provides as follows: “The mayor shall appoint a city attorney, together with such assistant city attorneys as may be authorized, and shall provide for the payment of such attorney or attorneys for services rendered to the city.”

       When reviewing a trial court’s ruling on a question of law, such as the interpretation of a statute, an ordinance, or, as in this case, a city charter that was enacted by the General Assembly, we apply the plain legal error standard of review. See Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

       See footnote 5, infra.

       Although Kautz also contends that the trial court erred in ruling that Section 5.16 of the charter, which provides for the procedures for removing an officer for cause, applied in this case, any impropriety in that ruling is moot given our conclusion that Section 2.16 of the charter is dispositive of the issue presented on appeal. See Richardson v. Phillips, 302 Ga. App. 305, 311 (2) (690 SE2d 918) (2010) (“[A] case is considered moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy, or when the specific relief sought by the plaintiff is no longer available.”) (citations and punctuation omitted); see also Schoen v. Cherokee County, 242 Ga. App. 501, 503 (3) (530 SE2d 226) (2000) (“[A] judgment right for any reason must be affirmed].]”) (citation omitted).

       The dissent takes exception to what it describes as the majority’s construction of the charter, stating that such construction would authorize the mayor to appoint a city attorney, but would exclude the mayor’s “concomitant power to remove a city attorney.” The majority, however, has not construed the charter. Instead, it has ruled that the relevant provisions of the charter are unambiguous, so that construction is both unnecessary and unauthorized. See Inagawa v. Fayette County, 291 Ga. 715, 718 (2) (732 SE2d 421) (2012) (When a statutory provision is clear and susceptible of only one meaning, “judicial construction is both unnecessary and unauthorized.”) (citation and punctuation omitted); Evans v. Employees’ Retirement System of Ga., 264 Ga. 729, 731 (1) (450 SE2d 195) (1994) (“[T]he use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction.”) (citation and punctuation omitted); see also Finney v. Dept. of Corrections, 263 Ga. 301, 302(1) (434 SE2d 45) (1993) (Even if there are policy considerations that suggest what a statute should authorize and why, “]t]he purpose of the judiciary is not... to determine what [the statute in question] should provide.”) (emphasis supplied).
      Moreover, although the dissent relies on the Supreme Court of Georgia’s opinion in Bailey v. Dobbs, 227 Ga. 838 (183 SE2d 461) (1971), for the proposition that, “where the tenure of [an] office is not prescribed by law, the power to remove is an incident to the power to appoint],]” the city charter in that case expressly authorized the city manager with both the power to appoint and to remove the administrative employees who were challenging their discharges. (Citation and punctuation omitted.) Id. at 838-839 (1) (Specifically, the city charter expressly provided that “the city manager is authorized ‘to appoint, prescribe the duties or supervise and remove all administrative employees [with certain exceptions].’ ” It also provided that all appointments of such administrators “shall continue at the pleasure of the City Manager who shall have the right and power to suspend any one of such appointees if deemed in the best interest of the city to do so.”) (punctuation omitted; emphasis supplied). It follows that, because the charter expressly delegated the city manager with the power to discharge the employees, the Court’s suggestion that he also had the implicit authority to do so by virtue of his power to appoint is mere dicta (a conclusion that is supported by the fact that the Supreme Court’s ruling in that case did not express or rely upon a consideration of whether, in fact, such implicit power existed). See id. at 839 (1). Consequently, Bailey does not require a different result in the instant case.

       The hearing transcript shows that the trial court allowed Kautz’s counsel to tender some of the documents at issue into the record during the hearing, although it ruled that the facts to be proved by the documents were not in dispute and that some of the documents were irrelevant or were too old to affect the outcome of the proceedings.
      Moreover, we note that Kautz’s notice of appeal did not designate the documents at issue to be included in the appellate record. As a result, she is unable to show that the court’s rulings regarding the purpose and length of the hearing were improper or that she was prejudiced thereby. See Kirkendall v. Decker, 271 Ga. 189, 191 (516 SE2d 73) (1999) (“In order for an appellate court to make a determination about the correctness of a judgment at issue, it is the appellant’s duty to include in the record on appeal the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment. ... In the absence of the relevant information, and there being a presumption in favor of the regularity of court proceedings, it must be assumed that the trial court’s findings are supported by sufficient competent evidence and its judgment is thus affirmed.”) (citation omitted).

       The mayor’s unambiguous control over the power to appoint the city attorney stands in stark contrast to the charter’s provision as to a city manager, for example, who “shall be nominated by the mayor with the confirmation of the city council,” and who “shall serve at the pleasure of the mayor and the city council and may be suspended and removed by a vote of four members of the city council.”

       This rule of appointment and removal does not apply to a “municipal employee, as distinguished from an officer, employed by a city under a lawful contract of employment for a fixed term,” who cannot be discharged before the end of that term in the absence of cause. Lentz v. City Council of Augusta, 48 Ga. App. 555, 556 (173 SE 406) (1934). As defendants conceded below, the position of Snellville city attorney has never been and “will never [be] one [that] can be terminated only for cause.” See Dixon v. MARTA, 242 Ga. App. 262, 264 (1) (529 SE2d 398) (2000) (“The right to continued employment may arise where there is a guarantee of employment for a fixed term, or where the employment allows termination only for cause.”) (citations omitted; emphasis supplied).


author: Ellington, Presiding Judge.

text:
    A14A0452.
    SAULS et al. v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY.
    (757 SE2d 455)
   Ellington, Presiding Judge.

Allstate Property & Casualty Insurance Company filed this declaratory judgment action in the Superior Court of Douglas County for a determination of its obligations under a homeowner’s insurance policy. The trial court granted Allstate’s motion for summary judgment in part, based on its determination that the policy provides no coverage for the claims at issue, which are asserted by the parents of a girl who died as a result of a motor vehicle accident, because the policy excludes coverage for bodily injury arising out of the use of any motor vehicle. The parents of the decedent appeal, contending that their claims are based, not on the use of a motor vehicle, but on the conduct of Allstate’s insureds before the accident in furnishing alcoholic beverages at their residence to the driver and to the decedent, who were both minors. For the reasons explained below, we affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

The record shows the following. Debbie and Eric Sauls (“the Saulses”), individually, as the representatives of their deceased daughter, Cheyenne Sauls, and (Debbie Sauls only) as the temporary administrator of Cheyenne Sauls’s estate, filed suit in the State Court of Douglas County against Todd and Justin McAllister, among other defendants. In that action for wrongful death and personal injuries, the Saulses alleged the following. On the evening of February 18, 2011, sixteen-year-old Cheyenne Sauls and seventeen-year-old Jason Lark were socializing with some friends when they visited the home of seventeen-year-old Justin McAllister. At the McAllister home, Lark and Cheyenne Sauls consumed alcoholic beverages. According to the Saulses, Justin McAllister obtained alcoholic beverages for the party, and the young people consumed the beverages with the knowledge, consent, or acquiescence of Justin McAllister’s father, Todd McAllister. After midnight, Lark left the McAllister home, driving his parents’ vehicle, and Cheyenne Sauls and some others went along as his passengers. Lark collided with a disabled moving truck that was jutting into the roadway. Cheyenne Sauls was ejected from Lark’s vehicle and sustained fatal injuries.

It is undisputed that, at the relevant time, Todd McAllister was the named insured under an Allstate Deluxe Plus Homeowners Policy. His son, Justin McAllister, was another insured person under the policy, because he was a resident of the insured property who was Todd McAllister’s “relative” and/or a “dependent person in [his] care.” The Family Liability Protection section of the policy provides that, “[s]ubject to the terms, conditions and limitations of [the] policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which [the] policy applies, and is covered by this part of the policy.” An “[occurrence” is defined simply as “an accident . . . resulting in bodily injury or property damage.”

In addition, in the Guest Medical Protection section, the policy provides that

Allstate will pay the reasonable expenses incurred for [specified medical expenses where the]... expenses [are] incurred and the services performed within three years from the date of an occurrence causing bodily injury to which [the] policy applies, and is covered by this part of the policy. Each person who sustains bodily injury is entitled to [Guest Medical Protection] when that person is: 1. on the insured premises with the permission of an insured person; or 2. off the insured premises, if the bodily injury ... is caused by the activities of an insured person [.]

Both the Family Liability Protection section and the Guest Medical Protection section provide that Allstate does not cover bodily injury “arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer.” The trial court determined that all of the Saulses’ claims were for their daughter’s fatal injuries, that her injuries arose out of the use of a motor vehicle, and, therefore, that the Saulses’ claims are excluded from the policy’s coverage.

The Saulses contend that the McAllisters injured Cheyenne Sauls at their residence by facilitating the consumption of alcoholic beverages by the minors gathered there, which placed her in a “situation of jeopardy.” They contend that Cheyenne Sauls would not have been subjected to the dangerous situation that ultimately resulted in her death but for the McAllisters’ conduct. They argue that, although she was fatally injured in the car accident, her death merely added to the injuries she previously sustained at the McAllisters’ home. In addition, they contend that her presence in Lark’s car was merely incidental to the underlying liability of the McAllisters for placing her in a position of jeopardy. As a result, they argue, the trial court erred in ruling that their claims arose out of the use of a motor vehicle. Finally, they argue that the exclusion for injuries arising out of the use of a motor vehicle applies only when an insured exercises control over the subject vehicle and that, because the McAllisters exercised no control over Lark’s vehicle, the policy provides coverage.

Under Georgia law, “[a]n insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.” (Punctuation and footnote omitted.) Manning v. USF&G Ins. Co., 264 Ga. App. 102, 103 (589 SE2d 687) (2003). Although exclusions to coverage

are strictly construed against the insurer, one that is plain and unambiguous binds the parties to its terms and must be given effect, even if beneficial to the insurer and detrimental to the insured. We will not strain to extend coverage where none was contracted or intended.

(Punctuation and footnotes omitted.) Id.

The case of Manning v. USF&G Ins. Co. involved similar facts to this case. The plaintiff was injured in a car accident and filed suit against the underaged driver of the car in which she was a passenger and against the driver’s mother, alleging that the mother negligently entrusted her vehicle to her son after serving him alcoholic beverages. 264 Ga. App. at 102-103. We held that a homeowner’s insurance policy issued to the driver’s mother by USF&G did not cover the plaintiff’s claims because the policy excluded coverage for bodily injury or property damage arising out of the ownership or use of motor vehicles. Id. at 107. We rejected the plaintiff’s argument that the claims were not excluded because the mother’s negligent act of providing alcohol to her minor son was alleged to be a concurrent cause of the plaintiff’s injuries. Id. at 106-107.

As in Manning v. USF&G Ins. Co., the question in this case is whether the policy at issue protects the insured against the type of harm that occurred. 264 Ga. App. at 107. Under the Allstate homeowner’s insurance policy at issue, quoted above, Todd McAllister insured himself, and relatives and dependents who lived with him, against having to pay damages which they might become legally obligated to pay because of bodily injury arising from an accident but not damages which they might become legally obligated to pay because of bodily injury arising out of the use of a motor vehicle. Allstate also agreed to pay certain medical expenses incurred by Todd McAllister’s guests, but not for bodily injury arising out of the use of a motor vehicle. As we have explained,

[w]hen the phrase “arising out of” is found in an exclusionary clause of an insurance policy, we apply the “but for” test traditionally used to determine cause-in-fact for tort liability. Notwithstanding tort liability theories, the underlying facts and circumstances of the claims asserted determine whether or not a policy exclusion applies, because the exclusionary clause is focused solely upon the genesis of the underlying plaintiff’s claims — if those claims arose out of the excluded acts then coverage need not be provided. Claims arise out of the excluded conduct when[,] “but for” that conduct, there could be no claim against the insured.

(Citations and punctuation omitted.) Hays v. Ga. Farm Bureau Mut. Ins. Co., 314 Ga. App. 110, 114 (2) (722 SE2d 923) (2012). Whatever the Saulses’ theory of the McAllisters’ liability, the claims they have asserted against the McAllisters for Cheyenne Sauls’ fatal injuries would not exist but for Lark’s use of a motor vehicle.

Human activities, of course, do not occur in the abstract; when there is an action, there is necessarily an actor (or actors). The motor vehicle exclusion at issue does not specify whether coverage is excluded for bodily injury “arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer” by any person or only for bodily injury arising out of such conduct by an insured (or other limited class of actors). The Saulses suggest that

this Court should adopt a rule, or re-emphasize, that ownership, control, and/or possession ofthe subject motorvehicle is key to finding the Motor Vehicle Exclusion applicable; otherwise, no matter how substantial or tangential the involvement of any motor vehicle, coverage can always be denied.

The Saulses contend that it is reasonable for the holder of a homeowner’s policy to expect that the automobile exclusion precludes coverage only for bodily injury arising out of an insured’s use of a motor vehicle because such liabilities would be covered by his or her automobile insurance, which is understood to complement liability coverage in a homeowner’s policy, citing Allstate Ins. Co. v. Keillor, 537 NW2d 589, 597 (Mich. 1995) (Levin, J., dissenting). But such an expectation will not override the express terms of a policy. See Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 500 (2) (707 SE2d 885) (2011) (As with other types of contracts, when the terms of an insurance contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent.). The homeowner’s policy at issue contains many definitions, exclusions, and other provisions where conduct is specified. In many provisions, the policy expressly limits the specified conduct to certain actors, frequently to an insured or someone who, in the context of the specified conduct, acts for or under the control of the insured. In many other provisions, on the other hand, the policy does not modify the conduct with an express limitation as to the actor. As to those provisions, any reasonable reader would understand that the identity of the actor was not relevant. We find no basis for concluding, therefore, that “by an insured” is an implied modifier in the motor vehicle exclusion.

Decided April 4, 2014

Because the Saulses seek medical expenses and other damages for their daughter’s bodily injury that arose out of the use of a motor vehicle, there is no coverage under either the policy’s Family Liability Protection or Guest Medical Protection. Hays v. Ga. Farm Bureau Mut. Ins. Co., 314 Ga. App. 110, 114 (2) (722 SE2d 923) (2012); Manning v. USF&G Ins. Co., 264 Ga. App. at 106-107. This does not mean, of course, that the McAllisters are not liable for Cheyenne Sauls’s injuries. See Manning v. USF&G Ins. Co., 264 Ga. App. at 107 (“We emphasize . . . that the question on appeal is not whether [the insured] is liable for [the injured party’s] injuries, but whether [the insured’s] homeowner’s insurance protects her against the type of harm that occurred.”) (citation omitted). The trial court did not err in granting summary judgment in part in Allstate’s favor on these issues.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

Jerry Mac Pilgrim, for appellants.

Carlock, Copeland & Stair, Frederick M. Valz III, Erica L. Parsons, Megan E. Boyd, for appellee.

       We note that the trial court denied Allstate’s motion for summary judgment in part, on the issue of whether an exclusion for intentional and criminal acts applies. See footnote 4, infra. Because Allstate did not file a cross-appeal, this ruling is not before this Court.

       See also Continental Cas. Co. v. H. S. I. Financial Svcs., 266 Ga. 260, 262 (466 SE2d 4) (1996) (By its plain terms, an exclusion in a law firm’s professional liability policy for any claim arising out of any dishonest, fraudulent, or criminal act by any of the firm’s partners or employees was focused on the genesis of a particular claim. Thus, if a claim arose out of a partner’s culpable conduct, then the claim was not covered. Where a former client alleged that two partners in the firm were liable for negligently supervising another lawyer in the firm, who misappropriated funds held in escrow for the plaintiff, there would be no claim against the defendants ‘but for” the dishonest and criminal acts of their partner. Regardless whether the defendants’ alleged negligence was a concurrent cause of the harm at issue, the plaintiff’s claim arose out of the partner’s culpable conduct, which brought the plaintiff’s claim within the scope of the exclusion.).

       See Lisa A. Zakolski, 16 Ga. Jurisprudence Insurance, § 3:27 (updated March 2014).

       For Coverage A (Dwelling Protection), Coverage B (Other Structures Protection), and Coverage C (Personal Property Protection), Allstate does not cover loss to covered property caused by “[t]he failure by any insured person to take all reasonable steps to preserve property when the property is endangered by a [covered] cause of loss”; “[a]ny substantial change or increase in hazard, if changed or increased by any means within the control or knowledge of an insured person”; or “[i]ntentional or criminal acts of or at the direction of any insured person.” For Coverage C, Allstate will cover “sudden and accidental direct physical loss to covered property caused by actions of civil authority to prevent the spread of fire”; for Coverage C, Allstate will not cover “theft or attempted theft committed by an insured person.” For Coverage X (Family Liability Protection) and Coverage Y (Guest Medical Protection), Allstate will not cover bodily injury or property damage “intended by, or which may reasonably be expected to result from the intentional act or acts or omissions of, any insured person, which are crimes pursuant to the Georgia Criminal Code”; “arising out of the rendering of, or failure to render, professional services by an insured person”; or “arising out of the past or present business activities of an insured person.”

       For Coverage A (Dwelling Protection) and Coverage B (Other Structures Protection), Allstate does not cover loss to covered property caused by “[w] ar or warlike acts, including[,] but not limited to, insurrection, rebellion or revolution”; “theft”; or “vandalism.” For Coverage C (Personal Property Protection), Allstate will cover “sudden and accidental direct physical loss” to covered property caused by “[rjiot or [cjivil [cjommotion, including pillage and looting during, and at the site of, the riot or civil commotion,” or “[vandalism and [mjalicious [mjischief.” For Coverage C, Allstate will not cover “theft in or from the residence premises while under construction... until the dwelling is completed and occupied.” For Coverage X (Family Liability Protection) and Coverage Y (Guest Medical Protection), Allstate will not cover bodily injury or property damage “arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of aircraft” or of specified types of “watercraft away from an insured premises.”

       Cf. Hays v. Ga. Farm Bureau Mut. Ins. Co., 314 Ga. App. 110, 111 (722 SE2d 923) (2012) (homeowner’s insurance policy provided that coverage “did not apply to bodily injury arising out of the ownership, maintenance, use, loading or unloading of motor vehicles owned or operated by or rented or loaned to [the insured]”) (punctuation omitted).


author: Ray, Judge.

text:
    A13A1956.
    BHARADIA v. THE STATE.
    (755 SE2d 273)
   Ray, Judge.

In 2003, a jury convicted Sandeep Bharadia of burglary, aggravated sodomy, and aggravated sexual battery. He was sentenced to life without parole for the aggravated sodomy offense and received concurrent 20-year sentences for the other two crimes. In an earlier appeal before this Court, we affirmed the trial court’s denial of Bharadia’s motion for a new trial. Bharadia v. State, 282 Ga.App. 556 (639 SE2d 545) (2006) (“Bharadia I”).

In the instant case, Bharadia appeals from the trial court’s denial of his extraordinary motion for a new trial. In a single enumeration of error, he argues that the court below erred in not finding that he met all six requirements for an extraordinary motion for new trial through what he contends is newly available DNA identification evidence taken from gloves allegedly used during the crimes. For the reasons that follow, we affirm.

The following facts are relevant to the instant appeal. Bharadia and Sterling Flint were indicted together. Bharadia pled not guilty and proceeded to trial before a jury, while Flint negotiated a guilty plea and testified against Bharadia. Bharadia I at 556. We adopt the statement of facts set forth in our prior opinion, as necessary, below.

At trial, the victim testified that on Sunday, November 18, 2001, she returned from church to her apartment in the town of Thunderbolt. As she walked in the door, a man she did not know was standing inside the apartment. The man forced the victim to take off all her clothes, put a blindfold on her, tied her to a chair, moved her to a bed where he bound her wrists to the bedposts and her ankles to the footboard, threatened to kill her with a knife, placed his mouth on her vagina, inserted his fingers and a Q-tip cotton swab into her vagina, and masturbated until he ejaculated on her stomach. During the assault, the man told the victim that he had a partner outside, and at some point the victim thought she heard the man talking to someone in her living room. After the assault, the man left the victim’s apartment, taking her computer, suitcase, camera, jewelry, and compact discs with him. The victim subsequently contacted her parents, who in turn contacted the police. Several days later, Savannah police found the items stolen from the victim’s apartment, along with the knife and gloves used by the attacker, in a house. The owner of the house was Flint’s girlfriend and she told police that Flint had brought the items to the house. Flint was subsequently arrested, and he told the police that he had received all of the items from Bharadia. Police showed the victim a photographic lineup including a picture of Flint, but she could not positively identify Flint as her attacker. Police later showed the victim another photographic lineup including a picture of Bharadia, and she identified him as the man who had assaulted her. She testified at trial that she has no doubt Bharadia is the man who attacked her.

(Emphasis supplied.) Id. at 556-557.

The victim further testified that she saw Bharadia, whose face was uncovered, at close range while he forced her into a walk-in closet in her bedroom and made her remove her clothing. When he tied her to a chair with a telephone cord, he covered her face and threatened to kill her with a knife. She testified that when she tilted her head, she could still see him, and she described what he was wearing. She also testified that he spoke with a Middle Eastern accent, claimed to be with A1 Qaeda, and talked at one point in a language she could not understand. She testified that she heard Bharadia speak to a second person and heard that person laugh, but never actually saw anyone else. She also testified that when her blindfold shifted, she could see that Bharadia was wearing “blue and white golf gloves.” Bharadia offered an alibi defense, claiming that he was in Atlanta when the crimes were committed in Thunderbolt. Bharadia I at 557.

Prior to trial, the Georgia Bureau of Investigation tested towels from the victim’s home, but they did not show the presence of semen. The gloves that the victim mentioned at trial were not tested for DNA evidence until 2004, the year after the trial. The test showed only that the DNA did not match Bharadia’s DNA. The test did not identify the donor of the DNA. In 2012, about eight years after the first DNA test, Bharadia filed an extraordinary motion for a new trial and also sought post-conviction DNA testing of the gloves. On April 18, 2012, the trial court granted Bharadia’s motion for a comprehensive CODIS database search using the DNA profile created from the initial 2004 DNA test of the gloves. After the CODIS search, the Georgia Bureau of Investigation issued a report showing that the DNA on the gloves matched that of Flint, Bharadia’s co-defendant.

However, the trial court denied Bharadia’s extraordinary motion for a new trial, finding that he failed to satisfy the requirements of Timberlake v. State, 246 Ga. 488 (271 SE2d 792) (1980). Timberlake provides that:

It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

(Citations and punctuation omitted.) Id. at 491 (1).

In contrast to a motion for new trial made within 30 days of a judgment, an extraordinary motion for new trial “is not favored; consequently, a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground.” (Citation and punctuation omitted.) Drane v. State, 291 Ga. 298, 300-301 (2) (728 SE2d 679) (2012). We will not reverse a trial court’s ruling on an extraordinary motion for new trial “unless it affirmatively appears that the [trial] court abused its discretion.” (Citation and punctuation omitted.) Id. at 300 (2).

Although the trial court found that Bharadia had met the third through sixth prongs of the Timberlake test, it also found that he failed to satisfy the first two prongs. The trial court reasoned that because the gloves were available to the defense for testing at the time of trial, they were not “newly discovered” evidence and that trial counsel failed to exercise due diligence because he did not get the gloves tested.

1. In his sole enumeration, Bharadia contends that because he satisfied all six Timberlake factors, the trial court erred in not granting his extraordinary motion for a new trial.

Among other arguments, Bharadia contends that, although the gloves were available at trial, the DNA evidence on them must be considered as separate, newly discovered evidence revealed only by the 2012 CODIS test showing that the DNA belonged to Flint. He asserts that the delay in acquiring this evidence from CODIS did not result from a lack of due diligence.

“The statutes which control extraordinary motions for new trial based on newly discovered evidence require a defendant to act without delay in bringing such a motion. OCGA §§ 5-5-23 and 5-5-41.” (Citation omitted.) Drane, supra at 304 (3) (b). As stated in Timber - lake, a defendant must show that he has been diligent in presenting his extraordinary motion for a new trial and that he did not fail to acquire the evidence sooner as a result of a lack of diligence. Timberlake, supra at 491 (1). Accord Drane, supra at 304 (3) (b).

Bharadia presents several arguments on this issue. The first is that “nothing in the record . . . shows that trial counsel knew that DNA testing of the gloves was even a possibility.” Clearly, counsel in a criminal case should have been aware of the possibility of testing evidentiary items for DNA. See generally Garnto v. State, 247 Ga. 22, 24 (273 SE2d 608) (1981) (finding a lack of diligence where defendant and his attorney knew or should have known about defendant’s alleged memory loss, history of alcoholism, and alcohol consumption on the night in question). Bharadia also argues that his indigence hindered his ability to find counsel for the present appeal, and that the Georgia Innocence Project accepted his case shortly after his initial appeal was decided in 2006. He contends that because he did not get a court order until 2012, and neither he nor his counsel could get the DNA evidence tested via the CODIS database without that court order, there was no lack of diligence.

However, this argument begs the question; that is, why didn’t Bharadia file a motion to conduct DNA testing on the gloves prior to trial? Had he done so, he certainly would have learned that his DNA was nowhere to be found thereon, and had he asked the trial court for a comparison against the CODIS database, he also would have learned that the DNA matched that of his co-defendant, Flint. Further, the gloves were tested for DNA evidence the year after the trial, in 2004, and the results showed that the DNA did not match Bharadia’s. In 2005, according to Bharadia’s motion for new trial, an expert with Forensic Science Associates recommended at an in-chambers conference that reference samples be taken from Flint to see if his DNA matched the unidentified male DNA on the gloves. However, Bharadia points us to no evidence in the record, nor do we find any, showing his efforts to obtain DNA testing targeted at identifying a specific individual through CODIS either before trial, or, as required by the first Timberlake factor, supra, after the trial —• for example, after the first DNAtest in 2004 put him on notice that his DNA was not on the gloves, or after his initial appeal was denied in 2006 and he had retained new counsel. The record only shows that he first sought CODIS testing in February 2012. See Llewellyn v. State, 252 Ga. 426, 428-429 (1), (2) (314 SE2d 227) (1984) (holding that post-trial delay in obtaining and presenting allegedly exculpatory deposition evidence equated to a lack of required diligence where the record showed no effort by defendant to obtain evidence during four-year period between trial and witness’s deposition, and a further two-year delay following that deposition before he filed an extraordinary motion for new trial); Boatright v. State, 155 Ga. App. 109, 109 (270 SE2d 321) (1980) (diligence lacking where there was no showing of what efforts, if any, were made to obtain the evidence at issue).

In Garnto, supra, we examined a situation similar to that of the instant case regarding a defendant’s diligence, or lack thereof, related to his allegations of newly discovered evidence. In Garnto, the defendant filed an extraordinary motion for new trial arguing that a doctor’s affidavit obtained post-trial stating that defendant was suffering from a form of psychosis and was not criminally responsible at the time of his offense amounted to newly discovered evidence. Garnto, supra at 23. However, that same doctor had evaluated the defendant three years earlier and stated that defendant was competent to stand trial; the earlier report did not address the defendant’s criminal responsibility at the time of the crime. Id. Our Supreme Court found that the defendant’s

acceptance of the doctor’s [first] report, which was silent as to the defendant’s criminal responsibility at the time of the offense, without inquiry or interview, shows that it was owing to lack of diligence that the doctor’s opinion as to the defendant’s criminal responsibility was not acquired sooner.

(Citation and footnote omitted.) Id. at 24.

Bharadia supports his argument that, because of his indigence and difficulty finding counsel, he did exercise ordinary diligence, by citing Britten v. State, 173 Ga. App. 840 (328 SE2d 556) (1985), but that case is physical precedent only. Britten involved a putative father in a child abandonment case who was legally required to pay for his own blood test to assess paternity and who did not get tested until six years after pleading guilty. Id. at 840-841. However, in Britten, unlike in the instant case, the indigent defendant made some showing about his efforts to obtain money to pay for the post-trial blood test that he alleged was newly discovered evidence. Id. at 841-842 (2). Our appellate court in Britten also considered the fact that there was a change in the law finding it unconstitutional to require the putative father to pay for paternity blood testing, and a change in medical science between the time of the plea and the time of testing that resulted in more reliable test results. Id. at 842-843 (2). Bharadia makes no argument related to a change in the law or in science related to his case.

Bharadia has not shown that the delay in obtaining the evidence was not caused by a lack of due diligence, and such a showing is an essential requirement in an extraordinary motion for new trial. Llewellyn, supra.

2. Bharadia also contends, as to the first prong of the Timberlake test, that the trial court erred in determining that the gloves, which were available at trial, were not newly acquired evidence. Rather, he argues that the DNA itself, rather than the gloves on which the DNA resided, was the newly discovered evidence. However, we have determined that Bharadia has failed to show that the delay in acquiring that DNA evidence was not owing to a want of due diligence. See id. “Failure to show one requirement [of the test] is sufficient to deny a motion for a new trial.” (Citation omitted; emphasis supplied.) Timberlake, supra at 491 (1). Thus, “[w]e need not reach the issue of whether the trial court erred in the rationale it used to deny the [extraordinary] motion for new trial. We will affirm under the right for any reason rule so long as the ultimate judgment is correct.” (Citation omitted.) Foster v. State, 318 Ga. App. 124, 128, n. 12 (733 SE2d 423) (2012).

3. Bharadia, as part of the same enumeration, also argues that because the trial court earlier determined that Bharadia’s trial counsel was not ineffective, it cannot also render the later, inconsistent opinion that trial counsel failed to exercise due diligence in testing the gloves. In making this argument on appeal, Bharadia overlooks the fact that the test for ineffective assistance of counsel differs from the Timberlake due diligence test.

The trial court found that trial counsel’s failure to seek DNA testing because of “problems with the investigation” amounted to trial strategy. The only problems with the investigation that trial counsel testified about at the motion for new trial hearing related to DNA evidence found on a Coke can, not the gloves. It is true that “there is a strong presumption that trial counsel’s performance is not deficient but falls within the wide range of reasonable trial strategy, in which unwise tactics do not amount to ineffective assistance of counsel.” (Citation omitted.) Williams v. State, 319 Ga. App. 888, 892 (3) (739 SE2d 4) (2013). It is also true that “[a]bsent testimony explaining trial counsel’s rationale for declining to present certain evidence, we presume that his decision was a strategic one.” (Footnote omitted.) Dukes v. State, 285 Ga. App. 172, 175 (2) (645 SE2d 664) (2007). No such presumptions adhere to the Timberlake test, which requires that the defendant prove that he did not lack diligence in failing to acquire the evidence sooner. Timberlake, supra at 491 (1). Specifically,

Decided March 10, 2014

Reconsideration denied April 7, 2014

Aimee R. Maxwell, Alissa L. Jones, Steven L. Sparger, for appellant.

Meg E. Heap, District Attorney, Stacey M. Goad, Nancy Grey R. Brimberry, Shalena C. Jones, Assistant District Attorneys, Samuel S. Olens, Attorney General, for appellee.

whether diligence used was ordinary, or less than ordinary, must be determined in each case by comparing the conduct under consideration with that of the ordinary man under similar circumstances. Ordinary diligence is affected by one’s surroundings and attendant circumstances.

(Citation and punctuation omitted.) Britten, supra at 841 (2). Given Bharadia’s failure to have the gloves tested either before trial or to show what, if any, efforts he made to acquire the DNA evidence in the nine intervening years between trial and his motion seeking the CODIS test, we cannot say that the trial court abused its discretion in denying his extraordinary motion for a new trial.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Since Bharadia claims innocence and that he was not even there, then logic dictates that he would have known his DNA was not on the gloves.


author: DOYLE, Presiding Judge.

text:
    A13A1996.
    MCG HEALTH, INC. v. PERRY et al.
    (755 SE2d 341)
   DOYLE, Presiding Judge.

MCG Health, Inc. (“MCG”), appeals from the certification of a class action suit filed by Donna Perry and Manuel Weisman to challenge MCG’s practice of filing hospital liens upon injured patients’ causes of action against the tortfeasors who allegedly caused their injuries. MCG contends that the trial court erred (1) by concluding that the class action requirements of OCGA § 9-11-23 were met, and (2) by denying its motion for summary judgment as to Perry and Weisman’s individual claims. For the reasons that follow, we reverse the trial court’s class action certification and remand the case for reconsideration of the summary judgment motion.

Plaintiffs Perry and Weisman “have the burden of establishing their right to class certification in the trial court, and we review the trial court’s decision in certifying a class action for abuse of discretion.”

MCG operates the MCG Medical Health Center, and the complaint alleges that in 2006, Perry was injured in a car wreck and treated for her injuries at the Center. After Perry was discharged, MCG filed a notice of lien in the amount of $8,076.54. Perry’s healthcare insurer had paid MCG the negotiated rate for Perry’s hospital costs, and a balance of $150 remained, representing the co-pay for which Perry was responsible. Perry paid this amount from the settlement of her tort case, but MCG did not thereafter cancel the lien.

Weisman was also treated by the Center for injuries from a separate automobile wreck, and despite being paid by Weisman’s health insurance carrier at the agreed-upon rates, MCG filed a lien in the amount of $17,043 for payment on his account. Weisman’s account status was paid in full, but MCG likewise did not cancel the lien at that time.

With the liens still pending, Perry and Weisman filed the present case in February 2009 asserting, inter alia, claims for breach of contract and fraud, and seeking injunctive relief, damages, and class certification. One year later, in February 2010, MCG cancelled its liens for both plaintiffs’ accounts. In March 2010, the plaintiffs moved for class action certification, and in April 2010, MCG moved for summary judgment as to the plaintiffs’ individual claims. Following a hearing, the trial court granted the class certification and denied MCG’s summary judgment motion, giving rise to this appeal.

1. MCG contends that the trial court abused its discretion by ruling that the plaintiffs’ case meets the statutory criteria for class action certification. We agree.

OCGA § 9-11-23 authorizes a plaintiff to sue as a class representative, and provides as follows, in relevant part:

(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if:
(1) The class is so numerous that joinder of all members is impracticable;
(2) There are questions of law or fact common to the class;
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) The representative parties will fairly and adequately protect the interests of the class.

If these prerequisites are met, a plaintiff must also demonstrate one of the following criteria: separate actions would risk inconsistent adjudications or impede other plaintiffs’ interests, the party opposing the motion has acted on grounds generally applicable to the class, or that common questions predominate any individual questions and class resolution is superior to other methods.

In determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits [,] but whether the requirements of OCGA § 9-11-23 (a) have been met----[T]he U. S. Supreme Court has recognized that the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.

MCG argues that the commonality requirement of OCGA § 9-11-23 (a) (2) has not been met. The plaintiffs’ appellate brief asserts that the common questions arise from one “central and predominating issue in this case: Should a hospital that agrees to provide health services for a negotiated price stand by its word?”

[But] any competently crafted class complaint literally raises common questions.... What matters to class certification is not the raising of common questions — even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.
[S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of [OCGA § 9-11-23 (a)] have been satisfied. Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.

Here, an examination of the plaintiffs’ claims reveals a variety of factual and legal issues resulting in numerous individualized inquiries and answers. There are two main relationships that bear on the issues in this case: the relationship between MCG and the insurance providers it contracts with, and the relationship between the patients and their insurance providers. Each of these relationships is governed by a contract. It is undisputed that MCG treats insured patients pursuant to at least 35 different contracts with 35 different insurance carriers. And each of these providers issues contracts for insurance to its insureds. Thus, the claims of the putative class require analysis of each pair of contracts for each of the 35 insurance providers.

Further, resolution of the various issues raised by this litigation will depend on analysis of multiple contractual provisions within this universe of contracts. For example, because the plaintiffs claim that all hospital payments are limited to those specified in contracts between the insurance providers and MCG, MCG has raised the issue of whether the individual patients can be considered third-party beneficiaries of those contracts. Therefore, each contract — the class member’s insurance policy and the contract between MCG and the insurance provider — must be analyzed to determine how it might affect whether the class member can be considered a third-party beneficiary of the agreement between MCG and the insurance provider.

Also, MCG below and on appeal raised the issue of whether certain class members who negotiated with MCG to resolve its liens engaged in a voluntary payment to settle the liens, which settlement could bar refund for that individual in this case. Determining the applicability of the voluntary payment doctrine to each plaintiff would require individualized analysis under the facts of each lien resolution:

Pursuant to the voluntary payment doctrine embodied in [OCGA § 13-1-13], the party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth.

Other differences become evident when considering the need to analyze the contracts between MCG and the insurance carriers to determine whether MCG’s practice breached those contracts. For example, MCG points to language in certain of its contracts stating that “[n]othing herein shall be construed to preclude Contract Hospital from seeking and obtaining payment from sources of payment other than [the insurance provider] and [the insured].” Indeed, in MCG Health, Inc. v. Eight, decided after the ruling and briefing in this case, this Court held that MCG was entitled to assert a lien under OCGA § 44-14-470 (b) for reasonable hospital charges that exceeded the agreed-on amounts authorized by a Blue Cross Blue Shield contract. This is because, as a matter of tort law, an injured plaintiff’s

cause of action against [a] tortfeasor for injuries and economic damages . . . [is] not limited to seeking economic damages represented by the discounted amounts paid on the [h]ospital’s billed charges under the contract with [the insurance provider]. Rather, [a plaintiff is] entitled to recover medical expenses arising from his injuries, including hospital charges, that [are] “reasonable and necessary.”

Thus, every insurance provider’s contract implicated in each plaintiff’s case would have to be analyzed, along with any coordination of benefits language in individual plaintiff’s policies that may bear on this question.

Another question to be resolved under the various contracts is whether there is contractual language (absent in Right) that would prevent such a recovery by the hospital, such as a “no recourse” waiver. The existence, variety, or changes in such language over time for various class members’ claims further militates against class resolution.

Finally, the trial court’s order itself identified a litany of other questions raised by the complaint:

whether [MCG] informed class members of the material facts and relevant terms of contracts; whether class members knew, could have known, or should have known of the facts concerning the existence and the terms of hospital service contracts; factual issues relating to [MCG’s] conduct and activities in filing hospital liens and collecting sums in excess of the payments submitted by the healthcare providers; whether [MCG] engaged in deceptive acts and practices by filing hospital liens to collect more than amounts specified in the hospital service contracts; whether [MCG] acted willfully, knowingly, or recklessly in engaging in the acts and conduct alleged; the liability of [MCG]; the appropriate measure of damages and the appropriate remedies; [MCG’s] affirmative defenses; ....

The trial court’s order in one sentence concluded that “[t]he presence of these common questions satisfies the commonality requirement.” But, as noted above, it is not the presence of common questions that makes a case suitable for class resolution; it is “the capacity of a classwide proceeding to generate common answers” that governs the analysis. The trial court’s conclusion ignores the fact that these questions encompass factual and contractual contexts that necessarily vary across the class. For example, answers to these questions could differ according to MCG’s communications with individual plaintiffs, or particular explanations of benefits received by individual plaintiffs, or disclosures from employers about insurance plans.

Decided March 20, 2014

Reconsideration denied April 7, 2014.

Hull Barrett, David E. Hudson, Christopher A. Cosper, Robert L. Allgood, for appellant.

Bell & Brigham, John C. Bell, Jr., Nicholson Revell, Sam G. Nicholson, Harry D. Revell, David B. Bell, Pamela S. James, for appellees.

For all of the reasons above, Perry and Weisman have failed to demonstrate that their claims satisfy the commonality requirement of OCGA § 9-11-23 (a) (2). Accordingly, the trial court abused its discretion by certifying the class.

2. MCG also contends that the trial court erred by denying its motion for summary judgment as to Perry and Weisman’s individual claims. As noted above, this Court’s recent decision in Right addressed MCG’s lien practice in a similar case, but with potentially differing contractual, insurance, and coordination of benefit language. In the present case, the trial court ruled on the summary judgment question without the benefit of Right, nor have the parties briefed that issue in this Court. We therefore remand the case for consideration of the summary judgment question in light of Right and with respect to the contractual language remaining at issue in this case.

Judgment reversed in part and case remanded.

McFadden and Boggs, JJ., concur.

        Doctors Hosp. Surgery Center, L.P. v. Webb, 307 Ga. App. 44, 45 (704 SE2d 185) (2010).

       See OCGA § 9-11-23 (b).

       (Citations and punctuation omitted.) McGarry v. Cingular Wireless, LLC, 267 Ga. App. 23, 25 (1) (599 SE2d 34) (2004). See Amchem Products, Inc. v. Windsor, 521 U. S. 591, 622 (TV) (A) (117 SCt 2231, 138 LE2d 689) (1997).

       (Punctuation omitted; emphasis supplied.) Wal-Mart Stores, Inc. v. Dukes,_U. S._ (II) (A) (131 SCt 2541, 180 LE2d 374) (2011). See also American Debt Foundation, Inc. v. Hodzic,
        312 Ga. App. 806, 808 (720 SE2d 283) (2011) (“[I]t is appropriate that we look to federal cases interpreting Rule 23 of the Federal Rules of Procedure, the rule upon which OCGA § 9-11-23 was based, for guidance.”) (punctuation omitted).

       (Punctuation and emphasis omitted.) Rite Aid of Ga., Inc. v. Peacock, 315 Ga. App. 573, 574-575 (726 SE2d 577) (2012), quoting Dukes,_U. S. at_(II) (A).

       See, e.g., Watts v. Promina Gwinnett Health System, 242 Ga. App. 377, 380 (1) (530 SE2d 14) (2000).

       (Citation and punctuation omitted.) Id.

       MCG also points to contractual language in a different contract, contending that it requires MCG to seek reimbursement from tortfeasors before seeking payment from the insured:
      When a party other than [an insurance provider] is identified as having primary responsibility for payment of or reimbursement for Covered Services under the Coordination of Benefits provision of a Member’s Health Benefits Plan, Hospital will bill and make all reasonable efforts to collect from such party for the value of Covered Services.

       325 Ga. App. 349 (750 SE2d 813) (2013).

       See id. at 354 (1).

       (Punctuation omitted.) Id. at 353 (1), quoting Allen v. Spiker, 301 Ga. App. 893, 896 (689 SE2d 326) (2009) (“The law requires proof that the medical expenses arose from the injury sustained, and that they are reasonable and necessary before they are recoverable.”) (punctuation omitted).

       See Right, 325 Ga. App. at 358 (Barnes, J., concurring fully and specially).

       (Emphasis in original and supplied.) Dukes,_U. S._(II) (A).

       See Doctors Hospital Surgery Center, L.P., 307 Ga. App. at 49 (2) (“[B]ecause many individual suits would be necessary in this case even if the one or two common issues were resolved class-wide, we are constrained to conclude that the trial court abused its discretion in granting [the] motion for class certification.”) (punctuation omitted); Rollins, Inc. v. Warren, 288 Ga. App. 184, 190 (1) (653 SE2d 794) (2007) (In a pest control re-inspection case, “[e]ven assuming that the generalized evidence demonstrates that Orkin has a widespread problem with reinspection abuse, it does not follow that this evidence can establish that Orkin breached its duty to adequately reinspect the property of any given proposed member of the class.”).

       See Rite Aid of Ga., Inc., 315 Ga. App. at 576-578 (1) (a) (i) & (ii); Rollins, Inc., 288 Ga. App. at 190 (1).


author: Branch, Judge.

text:
    A13A1893.
    McLEOD v. CLEMENTS.
    (755 SE2d 346)
   Branch, Judge.

R. Jerry McLeod appeals the grant of partial summary judgment in favor of Stan Clements in this long-standing dispute concerning McLeod’s claim that he is entitled, at no cost, to water from a well located on Clements’s property. We affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). The case has a long procedural history, most of which is set forth in the most recent of four previous appeals. See McLeod v. Clements, 310 Ga. App. 235 (712 SE2d 627) (2011).

For the purposes of this appeal, the relevant facts concern two “water agreements” between neighboring property owners and a dispute about the effect of a lengthy delay in recording the first of these agreements.

Construed in favor of Jerry McLeod, the record shows that McLeod is the successor-in-interest of property previously owned by H. E. McLeod, Sr., and that Clements is the successor-in-interest of property previously owned by H. E. McLeod, Jr.; a well is located on this latter property (the “well property”). McLeod, Sr., originally owned both properties, but at some point, McLeod, Sr., transferred the well property to McLeod, Jr., with an agreement that a well, designed to supply water to both properties, would be drilled on the transferred property. McLeod, Sr., paid for the installation of the pipes from the well to his property. On September 29,1971, sometime after the transfer, McLeod, Jr., entered into a written agreement (the “1971 water agreement”) whereby he granted to Mr. and Mrs. McLeod, Sr., Mike McLeod, and Jerry McLeod the right to maintain the water line and the right to water from the well “free from all charges” while any of the grantees lived on the property:

[H. E. McLeod, Jr.] ... does hereby give and grant unto [the grantees] the right to maintain a water line at its present location from the well on the land of [H. E. McLeod, Jr.] to the edge of the property of [H. E. McLeod, Jr.] and to use water from said well free from all charges. This right shall first be in Mr. and Mrs. H. E. McLeod, Sr. jointly for and during their joint lives and then to the survivor and then to Mike and Jerry McLeod, or the survivor of them as long as they live on the property now occupied by Mr. & Mrs. H. E. McLeod, Sr. as a home.

This agreement was not recorded until sometime in 1996. The pipes and water line connection have been visible at the well site and marked by a post since 1971.

Meanwhile, apparently in 1992, McLeod, Jr., transferred the well property to Michael and Sally McLeod who, in turn, transferred it to Ryan and Melissa Reeves on August 28, 1996. The Reeves’ warranty deed, which was recorded on September 27,1996, contains a “Special Agreement” (the “1996 water agreement”) in which the Reeves agreed to provide water to McLeod but that McLeod was required to pay electricity and maintenance costs:

The Buyers by the acceptance of this deed agree to furnish water to the house occupied by Jerry McLeod and Mrs. H. E. McLeod, Sr., for as long as Jerry McLeod and Mrs. H. E. McLeod, Sr., occupy the house adjoining the property herein described, provided Jerry McLeod and Mrs. H. E. McLeod, Sr., pay the [Reeves] a reasonable monthly fee for electricity and any well maintenance cost that are necessary to maintain the well in operating condition.

The Reeves’ deed does not reference the 1971 water agreement. Finally, McLeod admits that the 1971 water agreement was recorded while the Reeves had title to the property.

The well property changed hands several times thereafter, and, on August 9, 2007, Clements purchased it pursuant to a “Special Warranty Deed.” This deed provided in part that it was “subject to that certain Special Agreement executed in a deed from Michael R. McLeod and Sally I. McLeod to Ryan Reeves and Melissa Reeves, dated August 28, 1996.” Clements denies that he was aware of the 1971 water agreement at the time he purchased the well property. He obviously admits, however, that he was aware of the 1996 water agreement and that he was required to provide water to McLeod pursuant to that agreement. Clements also asserts that McLeod has failed to reimburse him for payments for electricity and maintenance as required by the 1996 water agreement.

McLeod filed suit alleging that Clements has wilfully refused to supply water pursuant to the 1971 water agreement. Clements answered and counterclaimed for a declaratory judgment ordering that he be relieved from the obligation of providing water service to McLeod or, in the alternative, that Clements and his successors-in-interest be permanently relieved from paying all of McLeod’s maintenance and electrical costs associated with McLeod’s use of the well. Clements moved for summary judgment on his declaratory claims. He argued that the 1971 water agreement is not enforceable against him because it was not recorded within his chain of title and that the 1996 water agreement is not enforceable against him because Mrs. H. E. McLeod is deceased and therefore no longer occupies the house benefitting from the agreement and because McLeod has failed to reimburse him for electricity and maintenance of the well pursuant to the 1996 water agreement. McLeod moved for partial summary judgment on Clements’s obligation to provide water pursuant to the 1971 water agreement. McLeod further argued that the 1996 agreement is not binding on him because it conflicts with the 1971 agreement and because he never agreed to the cost provisions contained therein. On September 7, 2012, following an earlier hearing, the trial court granted partial summary judgment in favor of Clements on the 1971 water agreement but denied Clements’s motion for summary judgment on the 1996 water agreement. McLeod appeals. Clements has not cross-appealed.

1. McLeod first contends the trial court erred by refusing to issue written findings of fact and conclusions of law in response to McLeod’s request to do so in compliance with OCGA § 9-11-52. But OCGA § 9-11-52 (b) plainly states that this Code section does not apply to motions except as provided in OCGA § 9-11-41 (b), which relates to involuntary dismissals and is not applicable here; thus, it does not apply to motions for summary judgment. See Kuruvila v. Mulcahy, 264 Ga. App. 626 (1) (591 SE2d 491) (2003) (“Findings of fact and conclusions of law . . . are not required when motions for summary judgment are ruled upon, and so the trial court did not err in omitting them.”) (citations, punctuation and footnotes omitted); Karsman v. Portman, 173 Ga. App. 108, 109 (3) (325 SE2d 608) (1984) (“[T]he judgment entered in this case is the grant of a motion for summary judgment and is expressly excluded from the operation of OCGA § 9-11-52 by the clear language of the section”) (citation omitted).

2. McLeod primarily contends the trial court erred as a matter of law by concluding that Clements is not bound by the 1971 water agreement and, specifically, by its requirement that Clements provide water free from all cost. McLeod is incorrect. As shown below, even for a covenant running with the land, a bona fide purchaser for value is not bound by such a covenant recorded outside of his chain of title unless he has either actual or constructive notice of the covenant.

“A bona fide purchaser for value is protected against outstanding interests in land of which the purchaser has no notice.” (Citations omitted.) Farris v. Nationsbanc Mtg. Corp., 268 Ga. 769, 771 (2) (493 SE2d 143) (1997) (unrecorded deed not enforceable against bona fide purchaser without notice of deed); Brock v. Yale Mtg. Corp., 287 Ga. 849, 852 (2) (700 SE2d 583) (2010) (quoting rule as stated in Farris). See also OCGA §§ 44-2-1 (“a prior unrecorded deed loses its priority over a subsequent recorded deed from the same vendor when the purchaser takes such deed without notice of the existence of the prior deed”); 23-1-19 (“If one with notice sells to one without notice, the latter shall be protected.”). Compare OCGA § 23-1-16 (“He who takes with notice of an equity takes subject to that equity.”); Timberstone Homeowner’s Assn. v. Summerlin, 266 Ga. 322, 323 (467 SE2d 330) (1996) (restrictive covenant enforceable against a purchaser with notice). “Indeed, there is a presumption of good faith which attaches to a purchaser for value and which remains until overcome by proof.” Montgomery v. Barrow, 286 Ga. 896, 897 (1) (692 SE2d 351) (2010) (citation and punctuation omitted). Covenants that run with the land fall within the law set forth above and, accordingly, are enforceable against only those with actual or constructive notice. Hopkins v. Virginia Highland Assocs., 247 Ga. App. 243, 245-246 (1) (541 SE2d 386) (2000) (recorded but mis-indexed easement running with the land effective against subsequent purchasers only if purchaser “took with notice of the agreement”) (citations and punctuation omitted).

In the face of the well-developed law set forth above, we decline to follow Wardlaw v. Southern R. Co., 199 Ga. 97, 98 (1) (33 SE2d 304) (1945), for its statement that covenants running with the land bind subsequent owners thereof “with or without notice.” Moreover, as noted by a federal court, Wardlaw

has been questioned... by certain authorities, as it is based on a questionable distinction between negative covenants running with the land and restrictive agreements. 2 G. Pindar, Georgia Real Estate Law and Procedure Section 22-10, at 403 (3d ed. 1986). [And,] Wardlaw cites Rosen v. Wolff, supra, 152 Ga. 578 ... as authority for this rule, but in Rosen the party against whom enforcement of the covenant was sought, was chargeable with inquiry notice of his lessor’s rights in the property subleased to him. See Rosen, 152 Ga. at 586.

In re Jenkins, 74 BR 440, 448, n. 1 (Bankr. N.D. Ga. 1987).

Here, Clements has sworn that when he purchased the well property, he had no actual notice of the 1971 water agreement. And although the well and pipes were plainly apparent when he purchased his property, their existence was completely consistent with the 1996 water agreement of which Clements admits knowledge. McLeod’s remaining argument is that Clements had constructive knowledge of the 1971 agreement because it was recorded in 1996, years before he purchased the well property. This argument fails because the 1971 agreement was recorded outside Clements’s chain of title, and a purchaser of land is only charged with constructive notice of the contents of instruments recorded within the purchaser’s chain of title. Virginia Highland Civic Assn. v. Paces Properties, 250 Ga. App. 72, 74 (550 SE2d 128) (2001); 3 Daniel F. Hinkel, Pindar’s Georgia Real Estate Law and Procedure § 26:5, at 40-41 (6th ed.) (“Once the chain has been put together, it is then necessary to [‘] grantor [’] or ‘check out’ each name in the chain to find any adverse instruments such as mortgages, liens, judgments, and sell-offs.”) (emphasis supplied); Revised State Bar of Georgia Title Standards, § 2.2 (“In examining a title, the examiner is required to search only for properly indexed and recorded instruments in the chain of title.”) (emphasis supplied). See also OCGA § 44-2-1 (“a prior unrecorded deed loses its priority over a subsequent recorded deed from the same vendor when the purchaser takes such deed without notice of the existence of the prior deed”). Finally, as explained in the State Bar Title Standards,

the following instrument is outside the chain of title: (A) An instrument from a person in the chain of title filed for record after the date of filing for record of another instrument from the same person purported to part with the same interest.

Revised State Bar of Georgia Title Standards, § 2.2.

Here, although the 1971 water agreement that bound McLeod, Jr., was recorded in 1996, McLeod, Jr., transferred his property in 1992 to Michael McLeod, who, in turn, transferred the property again in 1996 without mentioning the 1971 agreement; and McLeod admits that both transfers occurred before the 1971 water agreement was recorded. Accordingly, even if the 1971 water agreement is considered a covenant running with the well property, there is no evidence in the record that Clements had actual or constructive knowledge of that agreement at the time he purchased the property. The trial court therefore correctly held that the 1971 water agreement cannot be enforced against Clements.

McLeod’s argument that the grantor deed index entry for the 1971 water agreement was on the same page as the entry for the Michael McLeod/Reeves transfer and thereby should have given Clements notice is not supported by admissible evidence. The document was filed in the case subsequent to the grant of summary judgment and therefore was not before the trial court at the time of its decision. Similarly, McLeod’s arguments based on the affidavit of Michael McLeod are without merit because that document was not before the trial court at the time of its decision. McLeod’s argument that his long-standing use of the well, pipes, and water creates a quasi-easement in accordance with the terms of the 1971 water agreement is not well-founded given that the apparent pipes and well were consistent with the 1996 water agreement found in Clements’s chain of title and that knowledge of an existing use of the property is necessary to support such a claim. Cf. Merlino v. City of Atlanta, 283 Ga. 186, 188 (1) (657 SE2d 859) (2008) (“[A] bona fide purchaser without knowledge or constructive notice of the existence of [a hidden storm-water] easement takes title free from the easement, and he may assume that there is no easement except as shown of record or by open and visible indications on the land itself.”) (citations and punctuation omitted).

Decided March 20, 2014

Reconsideration denied April 8, 2014

R. Jerry McLeod, pro se.

Stephen R. Sullivan, for appellee.

3. Finally, McLeod contends the trial court erred because its order imposes on him new financial obligations in that the 1996 water agreement requires him to pay “a reasonable monthly fee for electricity and any well maintenance cost that are necessary to maintain the well in operating condition.” This issue, however, is not before us. The trial court did not rule on the enforceability of the 1996 water agreement; it only ruled that Clements was not bound by the 1971 agreement. McLeod remains at liberty to argue that the 1996 agreement is not in effect and to seek a remedy based on equitable principles alone.

Judgment affirmed.

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

       The deed for the 1992 transaction is not in the record.

       Mrs. H. E. McLeod, Sr., is now deceased.

       Because the court issued its decision prior to January 1, 2013, the new rules of evidence were not in effect. See Ga. L. 2011, p. 99, § 101 (The provisions of Georgia’s new Evidence Code apply “to any motion made or hearing or trial commenced on or after [January 1, 2013].”). Accordingly, this opinion is based on the applicable rules of evidence in effect at the time of the hearing below.

       As the Supreme Court of Georgia explained over 90 years ago, covenants that run with the land, as well as restrictive agreements concerning land or its use that do not run with the land, are enforceable only with notice:
      There is a growing tendency to incorporate equitable doctrines with common-law rules, and, in equity, covenants relating to land, or its mode of use or enjoyment, are frequently enforced against subsequent grantees with notice, whether named in the instrument or not, and though there is no privity of estate. It is immaterial in such cases whether the covenant runs with the land or not, the general rule being that it will be enforced according to the intention of the parties. It is only necessary that the covenant concern the land or its use, and that the subsequent grantee has notice of it. Covenants are so enforced on the principle of preventing a party having knowledge of the just rights of another from defeating such rights.

        Rosen v. Wolff, 152 Ga. 578, 585-586 (2) (110 SE 877) (1922) (citation omitted). See also Lowry v. Norris Lake Shores Dev. Corp., 231 Ga. 549, 551 (203 SE2d 171) (1974) (quoting Rosen); Hayes v. Lakeside Village Owners Assn., 282 Ga. App. 866, 867 (1) (640 SE2d 373) (2006) (same).

        Wardlaw has only been cited for this statement twice, in dicta in Ricketson v. Bankers First Savings Bank, FSB, 233 Ga. App. 11, 12-13 (1) (503 SE2d 297) (1998), and O’Neill v. Myers, 148 Ga. App. 749, 750 (2) (252 SE2d 638) (1979).

       McLeod misinterprets the following quotation from VATACS Group v. HomeSide Lending, 276 Ga. App. 386, 391 (2) (623 SE2d 534) (2005) aff’d, 281 Ga. 50 (635 SE2d 758) (2006): “Chain of title includes all recorded instruments pertaining to the property that are executed by an entity holding a recorded interest in the property at the time of the execution of the instrument.” (Footnote omitted.) McLeod contends the quotation means that so long as a person is the record title holder of the relevant property at the time that he enters into a related restrictive covenant, that covenant is considered a part of the chain of title even if the covenant is recorded after the title holder no longer holds title to the relevant property. That McLeod misreads VATACS is clear because the relevant issue in that case turned on the fact that the title holder both executed and recorded a subordination agreement during the time that it held title to the relevant property. Id. at 391-392 (2).