author: Phipps, Chief Judge.

text:
    A13A1838.
    MACKEY v. THE STATE.
    (756 SE2d 552)
   Phipps, Chief Judge.

After a joint trial, Lee Mackey and Milton Myers were convicted of burglary. Mackey appeals from his conviction, challenging the denial of his motion to suppress, and contending that the evidence was insufficient to support the verdict. We affirm.

1. Mackey contends that the trial court erred by denying his motion to suppress evidence obtained during a search of a motel room and vehicle. He asserts that police officers obtained a search warrant based on the “plain view” doctrine, when the officers had no lawful right to be in the motel parking lot where the vehicle was parked. As Mackey concedes in his brief, this court rejected this argument in the appeal filed by his co-defendant, Myers. Mackey’s contention is without merit for the reasons set out in Myers v. State.

2. Mackey contends that the evidence was insufficient to sustain his conviction. He concedes that “the Appellee’s evidence was sufficient to convict either Milton Myers or the Appellant of the offense of burglary. However, . . . the Appellee’s evidence simply was not sufficient to convict both of them.” The evidence was sufficient to support Mackey’s conviction.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict. The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged.

Viewed in this light, the evidence showed that on March 4, 2010, at about 2:30 a.m., police officers were dispatched to respond to a burglary alarm call at a Coach Factory Outlet Store (“the store”) located in an outlet mall; the store sold purses and leather goods.

Two officers arrived at the store within minutes after receiving the call. The officers observed that the glass on the front door of the store was broken, and that there was broken glass on the ground near the door. Inside the store, on the floor about ten to twelve feet away from the door, were two large rocks or boulders with wet dirt on them. There were empty display shelves, and purses on the floor, and some purses were missing.

Approximately six hours earlier, one of the two responding officers had been driving his patrol vehicle approximately a half mile from the outlet mall when he saw a gold-colored Nissan vehicle exiting a motel parking lot. As the officer’s vehicle approached, the Nissan stopped abruptly—remaining partially in the parking lot and partially on the roadway; the maneuver aroused the officer’s suspicion because the vehicle had had sufficient time to enter the roadway. The officer did not investigate at that time, but when he was dispatched to respond to the burglary alarm call at the store hours later, he radioed for other officers to “be on the lookout” for the vehicle as possibly being connected to the alarm call.

After hearing the radio bulletin, other officers spotted in the motel parking lot a parked vehicle that matched the vehicle described in the bulletin. The vehicle was not parked within a parking space; the hood was warm (though the air outside was cold), as if the vehicle had been recently driven. The vehicle’s tag number was not readily visible because the vehicle was backed into a dirt embankment; and a piece of cardboard placed inside the vehicle’s interior covered the identification number (which number would typically be visible through the windshield). Once officers ascertained the tag number, they determined that the vehicle was registered to a person with a Miami, Florida address.

The area was illuminated by lights from an adjacent gas station, and the vehicle’s interior light was on. Looking into the vehicle from the outside, officers saw a blanket covering some items in the back seat, and they saw Coach-brand purses protruding from underneath the blanket. One officer, who had previously shopped at the store, observed that attached to the purses were store tags of the type used at the store. The officers secured the vehicle without entering it.

One of the officers asked the motel office clerk whether there were any registered guests from Miami, Florida. The clerk handed the officer a motel registration card bearing Myers’s name and signature, and the same Miami address indicated in the tag search of the vehicle. The motel registration card indicated that Myers’s room had two occupants. Myers had checked into the room on March 3, 2010.

The officer who had seen the Nissan earlier arrived at the motel parking lot and recognized the secured vehicle as the one he had seen. He looked through the vehicle’s window and saw a blanket and purses; the purses had price tags attached and were similar to the purses he had seen on the shelves and floor in the store. A manager of the store confirmed at the scene and at trial that the purses in the vehicle had been stolen from the store.

At the gas station next to the motel, officers noticed a landscaped area where some large rocks or boulders had been placed in a design in a section of dirt. The landscape boulders were located at the gas station’s exit onto the roadway on which the officer had been traveling when he encountered the Nissan hours earlier. There were two empty spaces in the landscape design where the ground was damp; according to one of the officers, “it looked like two rocks had been removed recently.” There was testimony that the rocks or boulders found inside the store resembled the ones that had been part of the landscape design at the gas station. The rocks or boulders (as well as photos of those items, the landscaping, and the burglary scene, inter alia) were admitted into evidence at trial.

Decided March 17, 2014.

Kelley A. Dial, for appellant.

Rosemary M. Greene, District Attorney, Jana W. Allen, Assistant District Attorney, for appellee.

Officers obtained a search warrant for both the Nissan and Myers’s motel room. In executing the search warrant, officers found inside the motel room Mackey and Myers, keys to the vehicle, pieces of broken glass on a dresser near the room’s entrance, two pairs of gloves, and a bandana. Mackey told officers he was from Miami, Florida. Officers found inside the vehicle 61 Coach-brand purses (with price tags attached), gloves, pieces of glass that appeared to match the broken glass at the store, and another Florida license plate.

Mackey and Myers were arrested and charged as parties to the crime of burglary. At trial, the court instructed the jury on the principle of “party to a crime.” Although circumstantial, the evidence in this case was sufficient to authorize a rational trier of fact to conclude that all reasonable hypotheses were excluded save that of Mackey’s guilt, and that Mackey was guilty as a party to the crime of burglary.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       OCGA § 16-7-1.

        Myers v. State, 321 Ga. App. 676, 678-679 (742 SE2d 494) (2013).

       Id.

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

        Gordon v. State, 294 Ga. App. 908-909 (1) (670 SE2d 533) (2008) (citations omitted).

       See Myers, supra.

       See Nangreave v. State, 318 Ga. App. 437, 439 (1) (734 SE2d 203) (2012).

       See id. at 439-440 (2).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A1876.
    SAULS v. ATCHISON et al.
    (756 SE2d 577)
   DOYLE, Presiding Judge.

William Christopher Sauls appeals from a judgment of the Baldwin County Superior Court terminating his parental rights to his daughter, S. M. S., and granting a decree of adoption to Sauls’s mother and stepfather, Vanessa V. Atchison and James H. Atchison, Jr. We affirm for the reasons that follow.

On appeal from an order terminating parental rights based on an adoption petition, we construe the evidence favorably to the trial court’s ruling and determine whether any rational trier of fact could have found by clear and convincing evidence that the biological parent’s rights to custody have been lost. We do not weigh the evidence or assess witness credibility, but defer to the trial court’s factual findings and affirm unless this standard is not met.

So viewed, the evidence shows that Sauls’s daughter, S. M. S., was born in 2005. Sauls and S. M. S.’s mother never married. The child lived with both parents in Warner Robins, Georgia, until they separated in 2006. S. M. S. lived with her mother immediately following the separation, and Sauls had weekend visitation. In 2007, at the request of the parents, the Atchisons took custody of S. M. S. on the condition that they get temporary letters of guardianship, which were issued by the Baldwin County Probate Court in February 2007. In June 2007, the mother petitioned the probate court to terminate the guardianship, but the court denied the petition after Sauls testified in favor of the Atchisons.

In 2010, the Atchisons filed a petition for adoption pursuant to OCGA § 19-8-10, seeking therein to terminate the parental rights of both parents. On August 12,2011, following a hearing, the trial court entered orders granting the adoption petition and terminating Sauls’s and the mother’s parental rights. Sauls appealed to this Court, arguing that service of process was insufficient, the trial court’s order was insufficient, and the trial court erred by terminating his parental rights and granting the adoption. We affirmed the trial court’s denial of Sauls’s motion to dismiss based on insufficient service of process, but we remanded the “case to the trial court with the direction that it enter a new decree with specific findings of fact and conclusions of law pursuant to OCGA § 19-8-18 (b).”

On August 24, 2012, following the remand, the trial court entered a detailed order, which contained specific findings of fact, terminating the parental rights of Sauls and the mother and granting the Atchisons’ adoption petition. In the order, the trial court found that (1) Sauls failed for over a year, without justifiable cause, to communicate or attempt to communicate with S. M. S. in a meaningful, supportive, or parental manner; (2) Sauls significantly failed to financially support the child despite his ability to do so; and (3) adoption by the Atchisons would be in S. M. S.’s best interest. On October 5, 2012, the trial court entered an adoption decree in favor of the Atchisons. On November 5, 2012, Sauls filed a motion for new trial with regard to both the August 2012 order and the October 2012 order; he filed an amended motion for new trial on February 7, 2013. On February 15, 2013, the trial court entered an order denying Sauls’s motion for new trial. On March 14, 2014, Sauls filed a notice of appeal.

1. As an initial matter, we address the Atchisons’ assertion that this Court lacks jurisdiction. The Atchisons contend that Sauls’s notice of appeal was untimely as to the order terminating his parental rights and that a discretionary appeal was required. We disagree.

Following the remand in this case, the trial court terminated Sauls’s parental rights by order entered on August 24, 2012. Pursuant to OCGA § 5-6-35 (a) (12), “[a]ppeals from orders terminating parental rights” require an application for appeal. OCGA § 5-6-34 (a), however, provides in relevant part that parties may directly appeal “[a]ll final judgments, that is to say, where the case is no longer pending in the court below. . . .”

Both OCGA §[§] 5-6-34 (a) and 5-6-35 (a) are involved when, as here, a trial court issues a judgment in a case covered by the direct appeal statute, but where the subject matter may also be covered under the discretionary appeal statute. Where both the direct and discretionary appeal statutes are implicated, it is always the underlying subject matter that will control whether the appeal must be brought pursuant to OCGA § 5-6-34 or OCGA § 5-6-35.

Here, Sauls’s brief contains enumerations of error addressing the order terminating his parental rights and the final decree of adoption. Under these circumstances, Sauls was not required to file a discretionary application.

We further conclude that Sauls’s motion for new trial was timely. Pursuant to OCGA § 5-5-40 (a), “[a]ll motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.” Here, the final decree of adoption was entered on Monday, October 5,2012, and therefore, his subsequent motion for new trial filed on November 5, 2012, was timely.

2. Sauls argues that the trial court erred by terminating his parental rights. We disagree.

Pursuant to OCGA § 19-8-10 (b), a grandparent’s adoption may be granted without a biological parent’s consent

if that parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed: (1) [t]o communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or (2) [t]o provide for the care and support of that child as required by law or judicial decree, and the court is of the opinion that the adoption is for the best interests of that child.

(a) Sauls argues that the trial court erred by terminating his parental rights on the basis that he failed for over a year, without justifiable cause, to significantly communicate or attempt to communicate with S. M. S. in a meaningful, supportive, parental manner. This enumeration is without merit.

At the hearing, Vanessa Atchison testified that after the probate court issued the letters of guardianship, Sauls initially traveled from Warner Robins to Milledgeville every weekend to visit S. M. S., although he never exercised his right to overnight visitation. After the probate court denied the mother’s request to terminate the guardianship in August 2007, Sauls’s visitation became less frequent. Sauls did not contact his daughter at Christmas in 2007,2008, or 2009, and he failed to contact her on her third, fourth, and fifth birthdays. Sauls saw S. M. S. once in 2008 at the Atchisons’ June anniversary party. In 2009, he saw his daughter in the spring when he attended her preschool graduation ceremony and the dinner afterward, and he went to the Atchisons’ home the day after S. M. S.’s ballet recital, although he declined to attend the recital.

On appeal, Sauls argues that his mother, Vanessa, “thwarted” his numerous attempts to contact S. M. S., relying on his cell phone bills from May 2009, June 2009, and June 2010. The records, however, only cover three months out of the approximate two-and-a-half year period between the petition and the hearing, and they do not require reversal, given Vanessa’s testimony that she offered him numerous opportunities to visit with S. M. S., but he failed to do so unless the Atchisons brought her to Macon, citing work conflicts. The trial court specifically stated in its order that it found incredible Sauls’s testimony that the Atchisons turned on him after he testified in their favor, and it found credible Vanessa’s testimony that Sauls became angry at her and her family over a loss of inheritance. The trial court also indicated that Sauls’s testimony was impeached by evidence that he filed in Houston County a petition for legitimation and custody of S. M. S., falsely swearing that the child was a resident of Houston County at the time and indicating therein that he had provided financial support for her and spent quality time with her. The court also noted that Sauls failed to inform the Houston County court that S. M. S. had been living with the Atchisons under letters of guardianship.

“ [I] t was for the trial court, and not for the appellate court, to assess the credibility of the witnesses and resolve contested factual issues.” “The trial court... is vested with significant discretion in making the determination as to whether the parent’s [failure to communicate with the child] is excusable.” In light of the evidence in the record to support the trial court’s finding that Sauls failed for over a year, without justifiable cause, to significantly communicate or attempt to communicate with S. M. S. in a meaningful, supportive, parental manner, we find no error in the trial court’s order terminating Sauls’s parental rights.

(b) OCGA § 19-8-10 (b) provides two alternative bases for granting an adoption petition without parental consent, and “we may affirm based on the evidence supporting a finding under one subsection, even if the trial court made findings under both.” Given our decision in Division 2 (a), therefore, “we need not address whether [Sauls] significantly failed, without justifiable cause, to support [S. M. S.] for more than one year.”

Decided March 18, 2014.

M. Katherine Durant, for appellant.

Shane M. Geeter, for appellees.

3. Sauls also argues that the trial court erred by granting the Atchisons’ adoption petition because they failed to meet their burden of showing that the termination was warranted. Given our holding in Division 1 (a) that the trial court did not err by terminating Sauls’s parental rights, this enumeration is without merit.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       (Punctuation omitted.) Dell v. Dell, 324 Ga. App. 297 (748 SE2d 703) (2013).

       Sauls signed papers acknowledging paternity on the day S. M. S. was born.

       The mother did not appeal the trial court’s orders.

       See Sauls v. Atchison, 316 Ga. App. 792, 793 (1) (730 SE2d 459) (2012).

       Id. at 795-796 (2). “We . . . [did] not reach Sauls’[s] contentions with regard to the termination and adoption, and we express [ed] no opinion upon the merits of those contentions.” Id. at 796 (2).

       The order was filed August 24, 2012, but was signed on August 13, 2012, “nunc pro tunc July 26, 2011.”

       In the amended motion, Sauls withdrew his constitutional arguments.

       (Punctuation omitted.) Numanovic v. Jones, 321 Ga. App. 763, 764 (743 SE2d 450) (2013), quoting Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 256-257 (1) (564 SE2d 715) (2002).

       Compare Numanovic, 321 Ga. App. at 764 (father, who sought to appeal the trial court’s order denying legitimation and terminating his parental rights, was required to follow the discretionary appeal procedures set forth in OCGA § 5-6-35 (a) because although the trial court also granted the petitioners’ adoption petition, the father did not enumerate as error the adoption).

       The Atchisons did bring S. M. S. to Macon to see her father on multiple occasions.

       (Punctuation omitted.) Johnson v. Taylor, 292 Ga. App. 354, 357 (1) (665 SE2d 49) (2008).

       (Punctuation omitted.) Id.

       See id.

       Id. at 358 (2).

       Id.

       Sauls does not argue that adoption is not in S. M. S.’s best interest.


author: McMlLLIAN, Judge.

text:
    A13A1906.
    RATLIFF v. McDONALD et al.
    (756 SE2d 569)
   McMlLLIAN, Judge.

Sarah Kyle Ratliff appeals the trial court’s order granting summary judgment to Cobb County Sheriff Neil Warren and six of his deputies in Ratliff’s suit for personal injuries arising out of an incident at the Cobb County Adult Detention Center (the “ADC”). We affirm for the reasons set forth below.

[O]n appeal from a grant of a motion for summary judgment, we review the evidence de novo in the light most favorable to the nonmovant to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law.

(Citation omitted.) Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 898 (714 SE2d 606) (2011).

Viewed in the light most favorable to Ratliff, the evidence shows that on April 2, 2009, Ratliff went to the ADC with her friend, Tansy Collor, to pick up Collor’s boyfriend, Yusef Umrani, who was being released from custody. At the same time, Willie Marie McDonald, Umrani’s ex-girlfriend and the mother of his children, also arrived at the ADC to pick up Umrani.

McDonald had begun making phone calls and sending text messages to Collor after Umrani went to jail. In these calls and text messages, McDonald threatened both Ratliff and Collor and admonished that they were “sticking [their noses] in the wrong business” and that they would “get what’s coming [to them].” McDonald told Collor that she would send Umrani to jail before she let Collor have him and that she would kill Collor. As a result, Ratliff and Collor were concerned about what McDonald might do that day when they saw her at the ADC.

Ratliff and Collor went inside one of the ADC’s buildings (the “First Building”) to determine where in the ADC complex Umrani would be released, and they asked two deputies for help, explaining that the mother of Umrani’s children was outside and that they had previous problems with her. The deputies told the women that they could not help, but directed them to the visitor’s center, where the deputies said Umrani would be released. Ratliff and Collor passed McDonald on the way out the door, without speaking.

Collor walked up to the visitor’s center, while Ratliff drove there. Inside, Ratliff and Collor asked Sergeant Alvin Sutherland and Deputy Chester Coachman if Umrani would be released there, but the officers told them that Umrani would be released in the First Building. Ratliff and Collor also told Sutherland and Coachman that they needed help because McDonald was in the parking lot and they did not feel safe. According to Ratliff, the officers said that they were familiar with McDonald and that she was “crazy.” The officers told the women that they would follow them back down to the First Building to make sure nothing happened.

Ratliff and Collor left the visitor’s center and drove back down to the First Building, while the two deputies drove over in their car. Ratliff parked, and the two women got out of the car, while the deputies were paused at a stop sign. Meanwhile, McDonald had backed her diesel truck out of a parking space and was sitting between Ratliff’s and the deputies’ cars. Four other deputies were standing nearby. Ratliff said that she screamed at Sutherland and Coachman that they needed to stop McDonald, but the deputies standing in the area told the women that McDonald was not going to do anything and the women could go ahead and cross over the parking lot to the First Building. As Ratliff and Collor began walking toward the building, however, Ratliff heard McDonald yell something about “killing,” and a deputy heard her yell, “Bitch, if you go down there, I’ll run your ass over.” As Ratliff and Collor crossed toward the building, McDonald “gunned it,” striking both women. Ratliff stated that all of these events — from Ratliff and Collor leaving the visitor’s center to the collision — happened within seconds.

Approximately two years later, Ratliff filed suit asserting claims for assault and battery against McDonald and claims for negligence and recklessness against Warren and the Deputies. At some point, she apparently refined her claims against the Deputies to base them on theories of premises liability, recklessness and the public duty doctrine and to base her claim against Warren on respondeat superior. Warren and the Deputies subsequently filed a motion for summary judgment, which the trial court granted. The trial court found that the claims against the Sheriff were barred under the doctrine of sovereign immunity. The trial court also found that Ratliff failed to establish elements of her claims for premises liability and recklessness. Accordingly, the trial court found that Ratliff’s claims for respondeat superior against the Sheriff also failed. Finally, the trial court concluded that Ratliff’s claims under the public duty doctrine were barred under the doctrine of sovereign immunity.

1. Before considering the merits of Ratliff’s claims, we first address the issue of whether Warren and the Deputies are protected by immunity. See Cameron v. Lang, 274 Ga. 122, 124 (1), 126 (3) (549 SE2d 341) (2001) (issues of sovereign and official immunity are generally threshold issues to be decided before addressing the merits of a plaintiff’s claims), citing Mitchell v. Forsyth, 472 U.S. 511, 526 (105 SCt 2806, 86 LE2d 411) (1985) (official immunity is an “entitlement not to stand trial” rather than “a mere defense to liability”) (citations omitted); McCobb v. Clayton County, 309 Ga. App. 217, 217-218 (1) (a) (710 SE2d 207) (2011) (“Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue.”) (citations omitted).

Ratliff brought suit against Warren only in his official capacity as the Sheriff of Cobb County, asserting liability under the doctrine of respondeat superior. And “[sovereign immunity is the immunity provided to governmental entities and to public employees sued in their official capacities.” Stone v. Taylor, 233 Ga. App. 886, 887-888 (1) (506 SE2d 161) (1998).

The doctrine of sovereign immunity, which the Sheriff has raised as a defense, bars any claims against him in his official capacity. Under the Georgia Constitution, as amended in 1991, “sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” [Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).] Sovereign immunity has been extended to counties and thus protects county employees who are sued in their official capacities, unless sovereign immunity has been waived.

(Citations omitted.) Butler v. Carlisle, 299 Ga. App. 815, 818 (1) (683 SE2d 882) (2009). And “[any] waiver of sovereign immunity must be established by the party seeking to benefit from that waiver.” (Citation and punctuation omitted.) McCobb, 309 Ga. App. at 218 (1) (a). Ratliff failed to carry this burden, however, as she does not argue on appeal, nor did she establish below, that the General Assembly has waived sovereign immunity for the claims raised in this case.

Thus, Ratliff’s claim against Warren for respondeat superior is barred by sovereign immunity.

A county may be liable for a county employee’s negligence in performing an official function [only] to the extent the county has waived sovereign immunity. Because in this case, there is no evidence that the county has waived its sovereign immunity, the grant of summary judgment on the respondeat superior claim was appropriate.

(Citation and punctuation omitted.) Russell v. Barrett, 296 Ga. App. 114, 120 (2) (673 SE2d 623) (2009). See also Robinson v. DeKalb County, 261 Ga. App. 163, 165 (2) (582 SE2d 156) (2003) (same); Anderson v. Cobb, 258 Ga. App. 159, 160 (1) (573 SE2d 417) (2002) (same).

Similarly, to the extent that Ratliff asserts claims against the Deputies in their official capacities, those claims, too, are barred by sovereign immunity in the absence of a waiver. Coffey v. Brooks County, 231 Ga. App. 886, 889 (2) (a) (500 SE2d 341) (1998), rev’d in part on other grounds sub nom., Rowe v. Coffey, 270 Ga. 715, 716 (515 SE2d 375) (1999) (deputy entitled to sovereign immunity for claims asserted against him in his official capacity); Hicks v. McGee, 283 Ga. App. 678, 681 (3) (642 SE2d 379) (2007) (same for clerks of courts). And as no waiver exists in this case, any such claims would be barred.

Moreover, contrary to Ratliff’s argument, the public duty doctrine does not create a separate exception to sovereign immunity; rather, it is an additional restriction on governmental liability:

The public duty doctrine does not act as a judicially created exception to the state’s sovereign immunity. Indeed, because sovereign immunity has constitutional status, it cannot be abrogated by the judiciary. Rather, the public duty doctrine simply defines the scope of a governmental entity’s duty to provide police protection to individual citizens, and provides that liability generally can exist only where there is a special relationship between the injured party and the alleged governmental tortfeasor. Thus, the [public duty] doctrine serves to restrict the liability of governmental entities in those situations where sovereign immunity has otherwise been waived or is inapplicable (e.g., where a municipality has purchased liability insurance) — it does not act as an exception to sovereign immunity where such immunity has not been waived.

(Citations omitted.) Dept. of Human Resources v. Coley, 247 Ga. App. 392, 394 (1), n. 9 (544 SE2d 165) (2000), disapproved of on other grounds by Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 266 (1) (674 SE2d 914) (2009). See also Rowe, 270 Ga. at 723 (Carley, J., dissenting) (“The incorporation of the public duty doctrine into Georgia’s tort jurisprudence has resulted in a limitation on liability which is in addition to that provided by constitutional governmental immunity”) (emphasis in original). Accordingly, the doctrine creates a potential defense for a governmental defendant, not a separate claim on which a plaintiff may assert liability. Because we have found that sovereign immunity applies, we need not address the applicability of the public duty doctrine to the claims against Warren or any claims against the Deputies in their official capacity.

Accordingly, we affirm the trial court’s grant of summary judgment to Warren and to the Deputies in their official capacities.

2. Ratliff further seeks to recover from the Deputies, individually, based on her allegations that they failed to protect her from McDonald’s assault.

We note the Deputies may also have had a potential immunity defense to those claims.

The doctrine of official immunity, also known as qualified immunity, affords limited protection to public officers and employees for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. A public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Citations and punctuation omitted.) Burroughs v. Mitchell County, 313 Ga. App. 8, 10 (1) (720 SE2d 335) (2011). If the Deputies’ actions could be considered discretionary, Ratliff would only be entitled to recover against them if she established that they acted with actual malice or with the intent to injure. Adams v. Hazelwood, 271 Ga. 414, 414-415 (2) (520 SE2d 896) (1999) (“Actual malice” in context of official immunity requires “a deliberate intention to do wrong” and “denotes express malice or malice in fact”) (citation and punctuation omitted).

However, the Deputies did not assert official immunity in the motion for summary judgment, and thus we cannot decide this appeal on that basis. See Maxwell v. Mayor & Aldermen of the City of Savannah, 226 Ga. App. 705, 711 (4) (487 SE2d 478) (1997). Accordingly, we must address the merits of Ratliff’s claims because those issues were raised on the Deputies’ behalf in the motion for summary judgment and addressed by the trial court in its summary judgment order.

(a) Ratliff asserts that the Deputies are liable under OCGA § 51-3-1 for negligence “in their unofficial role of keeping and maintaining the grounds of the [ADC].” However, we agree with the trial court’s conclusion that Ratliff failed to present evidence in support of each of the elements of her premises liability claim, entitling the Deputies to summary judgment.

“[A] property owner is not an insurer of an invitee’s safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable.” (Citations and punctuation omitted.) Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 803 (2) (748 SE2d 281) (2013).

In order to be reasonably foreseeable, the criminal act must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers against the risk posed by that type of activity.

(Citation and punctuation omitted.) Drayton v. Kroger Co., 297 Ga. App. 484, 485 (677 SE2d 316) (2009).

In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the [owner or occupier’s] attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.

(Citations and punctuation omitted.) Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997).

Here, Ratliff presented no evidence of any prior similar incidents at the ADC. Moreover, the evidence reflects that any prior threats by McDonald toward Ratliff appear to be generalized in nature, and the description of these threats provided by Ratliff and Collor to Sutherland and Coachman were similarly vague. Certainly, Ratliff presented no evidence of any specific, immediate threat of harm (e.g., the women passed each other in a doorway that day without incident), nor did she present any evidence of any prior acts of violence by McDonald that were known to either Ratliff or the Deputies. In fact, both Sutherland and Coachman averred that they had no prior knowledge that McDonald had ever harmed anyone. Accordingly, we find that Ratliff failed to establish that it was reasonably foreseeable to the Deputies that McDonald would strike Ratliff with her truck in the ADC’s parking lot directly in front of four or more deputies. See Agnes Scott College, Inc. v. Clark, 273 Ga. App. 619, 621-623 (1) (616 SE2d 468) (2005) (without evidence of prior similar crimes committed in the area, kidnapping of plaintiff in broad daylight in busy college parking lot not reasonably foreseeable).

“But even if an intervening criminal act may have been reasonably foreseeable, the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citations and punctuation omitted; emphasis supplied.) Whitfield, 323 Ga. App. at 803 (2). Therefore, even if Ratliff had informed at least two of the Deputies that she had had prior threats from McDonald, Ratliff herself had direct knowledge of the threats. And both the deputy and Ratliff heard McDonald shouting threats at the same time on the day of the incident. Accordingly, Ratliff had at least an equal, if not a superior, knowledge of the nature and degree of the threat posed by McDonald and consequently had an equal or greater degree of foreseeability. See id. (proprietor lacked superior knowledge of threat posed by drunk customer where neither knew of perpetrator’s propensity for violence and both knew that customer was drunk and cursing and harassing customers); Johnson v. Atlanta Housing Auth., 243 Ga. App. 157, 160 (2) (532 SE2d 701) (2000) (where plaintiff knew of dangers in sitting on a bench at night in front of public housing where prior shootings had occurred on the block, his knowledge of the danger was at least equal to that of housing authority, precluding recovery); Griffin v. AAA Auto Club South, Inc., 221 Ga. App. 1, 2-3 (1) (470 SE2d 474) (1996) (holding as a matter of law that employer could not reasonably foresee employee’s boyfriend’s actions in shooting her even though employee had informed employer two days earlier that he posed a threat). Thus, Ratliff cannot establish superior knowledge, which is the sine qua non of her premises liability claim, and the trial court properly granted the Deputies’ motion for summary judgment on this claim.

(b) Ratliff asserts that the trial court erred in granting summary judgment on her recklessness claim. Ratliff asserted this claim in support of her prayer for punitive damages, citing OCGA § 51-12-5.1 (b). A claim for punitive damages is derivative in nature and “will not lie in the absence of a finding of compensatory damages on an underlying claim.” D. G. Jenkins Homes, Inc. v. Wood, 261 Ga. App. 322, 325 (3) (582 SE2d 478) (2003). Because Ratliff’s premises liability claim fails, her claim for punitive damages also fails.

(c) We also find no need to address the public duty doctrine with regard to the claims against the Deputies in their individual capacities. As discussed in Division 1, above, that doctrine does not create a separate cause of action but rather acts only to limit governmental liability. Because we have found that Ratliff’s other causes of action fail on the merits, we find no need to consider this defense as to the claims against the Deputies personally.

Accordingly, we affirm the trial court’s order granting summary judgment to the Deputies.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

Decided March 18, 2014.

Greer, Klosik & Daugherty, Thomas R. Mondelli, for appellant.

Lauren S. Bruce, Deborah L. Dance, for appellees.

       Ratliff named six John Doe deputies as defendants in her complaint, but later appeared to identify at least some of these “John Does” in her deposition. Those individuals apparently were not named as defendants in the lawsuit, but counsel has made an appearance, moved for summary judgment and submitted a responsive brief on appeal on the deputies’ behalf. Moreover, Ratliff designated only portions of the trial court record for inclusion on appeal, so we do not have a complete picture of the proceedings below. Accordingly, we will treat the deputies as parties for purposes of this appeal, and for ease of reference, we will refer to them collectively as the “Deputies.”

       Sutherland and Coachman denied any prior knowledge of or experience with McDonald. They also denied that Ratliff and Collor told them that McDonald had threatened them, only that there might be a problem. They also said that they instructed Ratliff and Collor to wait at the visitor’s center while they retrieved Umrani so they could avoid contact with McDonald.

       Coachman said that he never saw or heard Ratliff and Collor wave, point, or yell at them; nor did he hear McDonald threaten the two women.

       McDonald is not a party to this appeal.

       Although Ratliff’s complaint alleged that governmental immunity had been waived under the Georgia Tort Claims Act (the “GTCA”), OCGA § 50-21-23, “[t]he waiver of sovereign immunity contained in [the GTCA] does not apply to counties. OCGA § 50-21-22 (5).” Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 188 (674 SE2d 894) (2009). And under the GTCA, sheriffs and their employees are treated as county officers or employees. Nichols v. Prather, 286 Ga. App. 889, 893 (1) (650 SE2d 380) (2007).

       Additionally, we note the Supreme Court of Georgia has applied sovereign immunity to bar negligence claims arising from injuries incurred on county premises. See also Wilmoth v. Henry County, 251 Ga. 643, 643-644 (1) (309 SE2d 126) (1983) (county’s sovereign immunity barred claims in action for slip and fall at courthouse); Revels v. Tift County, 235 Ga. 333, 335 (5) (219 SE2d 445) (1975) (same).

       “[A] grant of summary judgment must be affirmed if right for any reason, whether stated or unstated.” (Citation and punctuation omitted.) Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94, 99-100 (1) (b) (735 SE2d 166) (2012).

       Because appellant designated only portions of the record for inclusion on appeal, it is unclear whether the Deputies ever asserted the bar of official immunity.

       Moreover, it appears that McDonald made such threats primarily in her communications with Collor, rather than directly to Ratliff.

       Moreover,
      [t]his was not a random stranger attack but rather grew out of a specific private relationship which had no connection with [the ADC] whatsoever. The place chosen by [McDonald] for the attack just happened to be [the ADC’s] parking lot. [The D eputies and the AD C] did not create or allow to exist an environment which placed [Ratliff] at risk any more than if she had been at home or on the street.
      (Emphasis omitted.) Griffin, 221 Ga. App. at 3 (1).

       The case of Clarke v. Freeman, 302 Ga. App. 831, 836 (1) (692 SE2d 80) (2010), upon which Ratliff relies is procedurally and factually inapposite. In that case, the plaintiffs asserted claims for infliction of emotional distress, not premises liability, and this Court found that the allegations in support of the claims were sufficient to withstand a motion to dismiss where the complaint alleged that the defendants were aware of a specific threat against plaintiffs based on the perpetrator’s statements, that a weapon had been confiscated from the perpetrator earlier that day, and that the defendant courthouse guards failed to provide adequate security.


text:
    A13A1913.
    DRISCOLL et al. v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (757 SE2d 138)
   DOYLE, Presiding Judge.

John Driscoll, individually and as administrator of the estate of Deborah Driscoll, appeals the dismissal of his tort claims against the Board of Regents of the University System of Georgia (“the Board”), contending that the trial court erred by ruling that his ante litem notice failed to state the amount of loss claimed as required by the Georgia Tort Claims Act (“GTCA”) at OCGA § 50-21-26 (a) (5) (E). For the reasons that follow, we affirm.

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.”

The relevant record is undisputed and shows that on March 4, 2010, Deborah Driscoll was killed on Interstate 285 when a wheel from an oncoming Georgia State University van came off, crossed the median wall, and struck the windshield of Deborah’s vehicle. Deborah was pronounced dead at the scene.

On February 8, 2011, counsel for Deborah’s estate sent an ante litem notice via certified mail to the Risk Management Division of the Georgia Department of Administrative Services (“DOAS”). The notice stated that “[t]his letter shall provide notice to the State of Georgia of a claim for damages in accordance with OCGA § 50-21-26. Deborah Driscoll died after a car crash on March 4th, 2010.” The letter listed the following details:

Our Client: Estate of Deborah Driscoll
Date of Incident: 3/4/2010
Location: 1-285 W.B.
Injury: Loss of Life
State Entity Involved: Georgia State University

The letter requested an “amicable resolution” but gave no other details other than to briefly summarize the events of the van losing a wheel and striking Deborah’s vehicle.

In July 2011, Driscoll’s counsel sent a demand letter to DOAS seeking the limits of the insured’s policy and listing dollar amounts for damages including human life value, funeral expenses, funeral related expenses, and death expenses. After a settlement did not occur, on February 29,2012, Driscoll filed suit as an individual and on behalf of Deborah’s estate, seeking damages for injuries arising from the car crash. In April 2012, the Board answered, asserting sovereign immunity, and moved to dismiss the complaint for failure to follow the ante litem notice requirements of OCGA § 50-21-26. Following a hearing, the trial court in a well-reasoned order, granted the Board’s motion, giving rise to this appeal.

The GTCA provides the avenue by which a party injured by the State may avoid the State’s traditional sovereign immunity and pursue a claim against the State. “The stated intent of the [GTCA] is to balance strict application of the doctrine of sovereign immunity, which may produce ‘inherently unfair and inequitable results,’ against the need for limited ‘exposure of the state treasury to tort liability.’ ” Among the prerequisites to filing suit under the GTCA is that the party give written notice of a claim to the State “within 12 months of the date the loss was discovered or should have been discovered.” Under OCGA § 50-21-26 (a) (5) (E), the notice of claim “shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances . . . the amount of the loss claimed,” as well as other information.

[Sjtrict compliance with the notice provisions is a prerequisite to filing suit under the GTCA, and substantial compliance therewith is insufficient. This is because the GTCA represents a limited waiver of the State’s sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts. The Supreme Court has clarified, however, “that the rule of strict compliance does not demand a hyper-technical construction that would not measurably advance the purpose of the GTCA’s notice provisions.” In other words, the Court has declined to reach a needlessly harsh result when that result was not mandated by the GTCA. The purpose of the ante litem notice requirements is to ensure that the State receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit.

Here, despite the GTCA’s requirement to state the amount of loss claimed to the best of Driscoll’s knowledge and belief, Driscoll’s ante litem notice failed to state any amount of loss whatsoever. This was not a situation where, for example, the extent of the injuries was unknown, or the notice was merely imprecise, or the claimant made a good faith mistake. Driscoll’s ante litem letter made no mention of any amount of loss claimed even though his losses were completed, and there was nothing about the circumstances that prevented him from assigning values to his losses to the best of his knowledge and belief within the statutory deadline. Accordingly, based on the facts of this case, we hold that Driscoll’s ante litem notice failed to satisfy the notice requirement of OCGA § 50-21-26 (a) (5) (E).

Anytime a life is lost, the inadequacy of the law’s remedial power is thrown into sharp relief. But as exemplified by Driscoll’s demand letter, sent 16 months after the accident and listing specific dollar amounts for human life value and certain death-related expenses, an amount of loss eventually must be determined if a party seeks monetary compensation. Even though the prejudice to the State was arguably minimal in the present case, the legislature plainly listed the required elements of an ante litem notice, and this Court is not authorized to ignore an element that is wholly absent from an ante litem notice. The legislature was certainly aware that certain losses in tort claims will always be difficult to value and are ultimately subject to an impartial jury’s enlightened conscience, but the statutory scheme nevertheless requires some statement of the amount of loss claimed “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” Driscoll correctly asserts that the result in this case is harsh, but it is a result mandated by the GTCAin the absence of any statement regarding the amount of loss. The courts of this State are not free to ignore this mandate; accordingly, the trial court did not err by granting the Board’s motion to dismiss.

Decided March 18, 2014

M. Katherine Durant, for appellants.

Further, we note that Driscoll’s counsel’s argument at the hearing reflected a reluctance to be “bound” by an amount of loss claimed in the statutory ante litem notice. But an ante litem notice, which must meet certain substantive requirements and deadlines, is a statutory obligation to provide

a statement of loss “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” Thus, the GTCA’s ante litem notice provisions clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of her claim at the time her notice is submitted.

The function of the ante litem notice is not to “bind” a plaintiff to a certain amount, but to provide notice to the State of the magnitude of the claim, as practicable and to the extent of the claimant’s knowledge and belief. But for the GTCA, the State would be immune to even the most compelling tort claim. Thus, claimants under the Act must proceed according to its requirements. In the case before us, Driscoll failed to do so.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

Samuel S. Olens, Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Sharon P. Horne, Assistant Attorney General, for appellees.

       (Punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 509 (3) (672 SE2d 471) (2009).

       See OCGA § 50-21-26 (a) (“No person, firm, or corporation having a tort claim against the [S]tate under this article shall bring any action against the [S]tate upon such claim without first giving notice of the claim .. . .”)•

       (Punctuation and footnote omitted.) Norris v. Dept. of Transp., 268 Ga. 192 (486 SE2d 826) (1997).

       OCGA § 50-21-26 (a) (1).

       (Emphasis supplied.)

       (Punctuation and footnotes omitted; emphasis supplied.) Myers v. Bd. of Regents of the Univ. System of Ga., 324 Ga. App. 685, 687 (751 SE2d 490) (2013), quoting Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 SE2d 729) (2007).

       Compare Myers, 324 Ga. App. at 687.

       See Ga. Dept. of Transp. v. Griggs, 322 Ga. App. 519, 522 (745 SE2d 749) (2013) (claimant identified the portion of Interstate 285 on which the accident occurred to the extent that she knew it).

       See Cummings, 282 Ga. at 826 (claimant misidentified the responsible agency).

       Compare Myers, 324 Ga. App. at 687 (incomplete statement of loss was sufficient because the claimant notified the State that she was still incurring losses and did not yet know the full extent of her injury).

       See Perdue v. Athens Technical College, 283 Ga. App. 404, 408 (641 SE2d 631) (2007).

       See generally City of Atlanta v. City of College Park, 292 Ga. 741, 744 (741 SE2d 147) (2013) (legislature is presumed to act with full knowledge of the existing condition of the law); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 735 (2) (a) (691 SE2d 218) (2010) (“As with all torts, the determination of damages rests ‘peculiarly within the province of the jury.’ ”), citing Western & Atlantic R. v. Abbott, 74 Ga. 851 (3) (1885) (pain and suffering damages to be measured according to enlightened conscience of impartial jurors).

       OCGA § 50-21-26 (a) (5).

       (Punctuation omitted; emphasis supplied.) Myers, 324 Ga. App. at 688, citing Cummings, 282 Ga. at 825.


author: ANDREWS, Presiding Judge.

text:
    A13A1974.
    PAYTON v. JACKSON.
    (756 SE2d 555)
   ANDREWS, Presiding Judge.

Audrey Payton, a Fulton County employee with a salary grievance, filed an application for discretionary appeal of a superior court order that vacated an arbitration award in her favor. Because there is nothing in the trial court’s order that allows us to determine on what grounds the trial court granted the petition to vacate the arbitration award, we vacate the order and remand the case to the trial court for proper consideration of Payton’s petition to confirm the award.

The record shows that Payton worked as a deputy sergeant in the internal affairs division of the Fulton County Sheriff’s Office. Her base salary was approximately $46,000 per year, and she also received $8,866 per year in parity pay. Parity pay, implemented by the County in 2001, is meant to ensure that law enforcement employees working in jobs with similar responsibility and/or risk levels in different agencies receive the same pay.

In April 2010, the sheriff reassigned ten employees, including Payton, to different divisions. Payton was assigned to work in the courthouse, a position that does not include parity pay. Neither her rank nor her salary changed, but she no longer received parity pay in that position.

Payton filed a grievance with her supervisor in accordance with the County’s grievance procedure for handling job-related complaints. She sought reinstatement of her parity pay, as well as back pay, interest, and attorney fees. Payton’s grievance was denied, and she appealed her case to an arbitrator.

At the arbitration hearing, Payton testified that her supervisor told her that she was selected for reassignment due to “negative information” about her. Payton tried to discover the nature of this information so she could address it, but her supervisor never responded to her inquiries.

Before the arbitration hearing began, Fulton County argued that Payton’s transfer could not be classified as a demotion because it did not result in any reduction of her base salary, grade, or classification. The arbitrator accepted this argument and phrased the issue before him as whether the County acted arbitrarily and capriciously in transferring Payton to a position that did not include parity pay. At the end of the hearing, the arbitrator concluded that the transfer was “an adverse action without good and sufficient reasons” and was inconsistent with Fulton County policy. The arbitrator found that telling Payton that her move to internal affairs was based on “negative information” and then not providing that information so that she could address the issue was a violation of policy. Accordingly, the arbitrator found that the only appropriate remedy was to return her to her former position in internal affairs.

Payton filed a petition to confirm the award, and the sheriff filed a petition to vacate the award. The trial court granted the sheriff’s petition to vacate. This appeal followed.

OCGA § 9-9-13 lists five grounds for vacating arbitration awards:

(b) The award shall be vacated on the application of a party who ... participated in the arbitration ... if the court finds that the rights of that party were prejudiced by:
(1) Corruption, fraud, or misconduct in procuring the award;
(2) Partiality of an arbitrator appointed as a neutral;
(3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made;
(4) A failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection; or
(5) The arbitrator’s manifest disregard of the law.
(d) The fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

The law is that the Arbitration Code

places strict limits on the scope of a trial court’s review of an arbitrator’s award and on any subsequent review by an appellate court. [In fact, the] Code requires courts to give extraordinary deference to arbitration awards and commands that a trial court shall confirm an award upon application of a party made within one year after its delivery to the party, unless the award is vacated or modified by the court as provided in the Arbitration Code.

Brookfield Country Club v. St. James-Brookfield, LLC, 299 Ga. App. 614, 617 (683 SE2d 40) (2009).

In this case, the sheriff has consistently argued that the transfer of Payton was not a demotion. After the arbitrator rendered his decision, the sheriff argued in his petition to vacate the award that the arbitrator must have considered this a demotion and only the personnel board had the authority to order Payton returned to her previous position because only the personnel board can hear issues involving demotion.

[C]ourts cannot inquire into the merits of an arbitrable controversy; arbitrators are free to award on the basis of broad principles of fairness and equity; and an arbitrator need not make findings or state the reasons in support of the award. Indeed, so as not to frustrate the very purpose of arbitration (which is to avoid litigation), a trial court’s role is severely curtailed.

(Citations, punctuation and footnotes omitted.) Barron Reed Constr. v. 430, LLC, 275 Ga. App. 884, 887 (2) (622 SE2d 83) (2005).

Further, when a motion to vacate or confirm an arbitration award is before the court, the court may not inquire into the merits of the dispute or consider the sufficiency of the evidence. Doman v. Stapleton, 272 Ga. App. 114, 117 (611 SE2d 673) (2005).

The burden of proof is on the one seeking to set aside an award. This showing is an extremely difficult one to make, especially in light of the fact that an arbitrator is not required to make findings of fact or state his or her rationale in reaching decisions. ABCO Builders [v. Progressive Plumbing, 282 Ga. 308, 309 (647 SE2d 574) (2007)].

(Citation and punctuation omitted.) Patterson v. Long, 321 Ga. App. 157, 160 (741 SE2d 242) (2013).

It follows that, when a trial court vacates an arbitration award, the order must specifically set out the grounds supporting the vacatur and the reasoning behind it in order for this Court to determine whether the order was issued in accordance with the stringent requirements set out above. Here, the trial court’s order vacates the award without specifying the grounds or providing any explanation. Although the order states that it is adopting the findings of fact and conclusions of law submitted by the sheriff, the sheriff’s filing more closely resembles a brief than it does an order and is insufficient to serve as the entire order of the court. We therefore decline to analyze it for error and will not affirm it.

Decided March 18, 2014.

Derek H. Jones, for appellant.

Terry Grandison, for appellee.

Judgment vacated and case remanded.

Dillard and McMillian, JJ., concur.

       We note that the sheriff’s appellate brief fails to provide us with any meaningful citations to the record. Many of the citations are to vast portions of the record which is the equivalent of failing to provide any record cites at all, and is a violation of the rules of this Court.


author: BARNES, Presiding Judge.

text:
    A13A2086.
    OLDE TOWNE TYRONE, LLC et al. v. MULTIBANK 2009-1 CRE VENTURE, LLC.
    (756 SE2d 558)
   BARNES, Presiding Judge.

This appeal arises out of a dispute over a commercial promissory note éxecuted by Appellant Olde Towne Tyrone, LLC (“Olde Towne”) in favor of Integrity Bank and personally guaranteed by Appellant Jeffery V. Curtis. Following execution of the note and guaranty, Integrity failed, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver. The FDIC then assigned and transferred the loan documents to Appellee Multibank 2009-1 CRE Venture, LLC (“Multibank”). Contending that Olde Towne had defaulted on its loan obligations, Multibank filed the present action against the Appellants for breach of the note and guaranty. The trial court subsequently granted summary judgment in favor of Multibank, concluding that Appellants’ affirmative defenses and proposed counterclaims were subject to dismissal under the administrative exhaustion provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub. L. No. 101-73, 103 Stat. 183 (codified as amended in scattered sections of 12 USC). For the reasons discussed below, we affirm.

Summary judgment is proper where the pleadings and evidence demonstrate “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). We review a trial court’s grant of summary judgment de novo and construe all inferences in the light most favorable to the nonmoving party. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The record reflects that on January 5, 2007, Appellant Olde Towne entered into a commercial loan agreement with Integrity Bank to fund the purchase and development of approximately 54.6 acres of land in Fayette County, Georgia. Under the terms of the agreement, Integrity agreed to loan Olde Towne a total of $6,140,000,. with $5,969,085 to be disbursed at the closing of the loan and the remaining $1,645,915 to be advanced in the future to fund the development.

Olde Towne executed a commercial promissory note for the loan. The note was set to mature on January 5,2009, when the outstanding principal balance would become due. Before the maturity date, Olde Towne was required to make monthly interest payments on the note. The note was secured by a security deed on the property, and Appellant Curtis, a member and investor in Olde Towne, executed a guaranty for the indebtedness.

Olde Towne ceased making interest payments on the note beginning in January 2008. To date, Olde Towne has not paid the amounts owed on the note that have accrued since January 2008, including interest, late charges, and the outstanding principal balance. Nor has Curtis, the guarantor, paid the outstanding amounts owed on the note.

On August 29, 2008, Integrity was closed by the Georgia Department of Banking and Finance, and the FDIC was appointed as receiver. In January 2010, the FDIC, in its capacity as receiver, assigned and transferred a portfolio of loans of failed banks, including Integrity, to Multibank pursuant to a “Loan Contribution and Sale Agreement” (the “Loan Agreement”). The Olde Towne loan was among the loans of Integrity that were assigned and transferred to Multibank.

On May 11, 2011, Multibank filed the instant action against Appellants, contending that Olde Towne had breached the promissory note and that Curtis had breached the guaranty. Multibank sought damages representing the current outstanding balance due on the note of $7,290,550.64, which included unpaid principal, accrued interest, and late charges. Multibank also sought attorney fees under OCGA §§ 13-1-11 and 13-6-11.

Appellants thereafter filed their original answer, denying that they were obligated to pay the outstanding balance due on the note. After retaining new counsel, Appellants filed an amended answer that added multiple defenses, including anticipatory repudiation of contract, breach of a condition precedent, and breach of the duty of good faith and fair dealing, all of which were predicated on alleged wrongdoing by Integrity rather than Multibank. According to Appellants, in early 2008, Integrity had ceased providing the advances of loan proceeds to Olde Towne as required by the commercial loan agreement. Appellants alleged that as a result of Integrity’s failure to make the advances, Olde Towne was entitled to suspend its performance under the note, including further note payments, beginning in January 2008. In addition to filing the amended answer with added defenses, Appellants filed a motion to add counterclaims and to withdraw admissions that had not been answered by previous counsel.

Multibank moved for summary judgment on its claims for breach of the promissory note and guaranty. Multibank also opposed Appellants’ motion to add counterclaims and to withdraw admissions. Multibank argued that it had established its prima facie right to recover under the note and guaranty and that all of the Appellants’ affirmative defenses and proposed counterclaims failed as a matter of law for several reasons. Among other things, Multibank argued that all of Appellants’ affirmative defenses and proposed counterclaims arose from the activities of Integrity and thus should have been asserted in the administrative claims process established under FIRREA after Integrity was closed and the FDIC was appointed as receiver. Consequently, Multibank argued that Appellants’ affirmative defenses and proposed counterclaims were barred under the administrative exhaustion provision of FIRREA, 12 USC § 1821 (d) (13) (D).

Appellants responded that the administrative exhaustion provision did not apply to bar their affirmative defenses and proposed counterclaims because the FDIC never provided them with proper notice of the administrative claims process relating to Integrity. Appellants further responded that Multibank was prohibited from invoking the administrative exhaustion provision under the terms of the Loan Agreement between the FDIC and Multibank. As such, Appellants asserted that they were entitled to assert their affirmative defenses and proposed counterclaims in the instant litigation and that genuine issues of material fact existed as to whether Multibank was entitled to judgment on the note and guaranty.

The trial court thereafter entered its order denying Appellants’ motion to add counterclaims and withdraw admissions and granting Multibank’s motion for summary judgment. The trial court ruled that Multibank had established a prima facie right to recover under the note and guaranty, and that all of Appellants’ affirmative defenses and proposed counterclaims arose out of actions by Integrity and were barred by FIRREA’s administrative exhaustion provision. The trial court further ruled that even if the administrative exhaustion provision did not apply, all of Appellants’ affirmative defenses failed as a matter of law “for either want of any evidence or argument presented in support thereof.” Appellants now appeal the trial court’s ruling.

1. Appellants contend that the trial court erred in concluding that their affirmative defenses and proposed counterclaims were barred by the administrative exhaustion provision of FIRREA, 12 USC § 1821 (d) (13) (D). We disagree.

We recently discussed FIRREA’s administrative exhaustion provision in Bobick v. Community & Southern Bank, 321 Ga. App. 855 (743 SE2d 518) (2013). As we explained in Bobick, Congress, in enacting FIRREA, established an administrative review process for claims against failed banks for which the FDIC had been appointed as receiver. Id. at 861 (3). Furthermore, Congress “anticipated that, as a receiver for failed lending entities, the FDIC would face numerous claims from various parties,” and, as a result, “established limits on judicial review of such claims.” (Citations and punctuation omitted.) Id. Specifically, Congress enacted 12 USC § 1821 (d) (13) (D), which provides:

Except as otherwise provided in this subsection, no court shall have jurisdiction over —
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the [FDIC] has been appointed receiver, including assets which the [FDIC] may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or the [FDIC] as receiver.

We concluded in Bobick that the limitation on judicial review imposed by 12 USC § 1821 (d) (13) (D) should be construed as an administrative exhaustion requirement such that if a claim falls within its provisions, “courts are divested of subject matter jurisdiction if the claimant failed to exhaust her administrative remedies before the FDIC.” Bobick, 321 Ga. App. at 863 (3). We further concluded that “an entity such as [Multibank] that purchases a failed lending institution’s assets from the FDIC acquires the administrative review protections afforded by section 1821 (d) and is entitled to seek dismissal of a claim for failure to exhaust administrative remedies.” (Citation and punctuation omitted.) Id. at 864 (3) (a).

Against this backdrop, we turn to whether FIRREA’s administrative exhaustion provision should be applied in the present case. In the trial court, Appellants raised two arguments for why the provision should not apply: (a) the FDIC never provided them with proper notice of the administrative claims process relating to Integrity; and (b) Multibank was prohibited from invoking the administrative exhaustion provision under the terms of the Loan Agreement. We will address these two arguments in turn.

(a) Appellants contend that they should be exempted from the administrative exhaustion requirement because they did not receive proper notice of the administrative claims process under 12 USC § 1821 (d) (3) (C). We disagree because the uncontroverted evidence shows that Appellants were on notice of the appointment of the FDIC as receiver in time to file claims in the administrative claims process relating to Integrity.

FIRREA requires the FDIC as receiver to provide notice of the administrative claims process to creditors of the failed bank in accordance with 12 USC § 1821 (d) (3) (B) and (C). Those provisions state:

(B) Notice requirements. The receiver, in any case involving the liquidation or winding up of the affairs of a closed depository institution, shall —
(i) promptly publish a notice to the depository institution’s creditors to present their claims, together with proof, to the receiver by a date specified in the notice which shall be not less than 90 days after the publication of such notice; and
(ii) republish such notice approximately 1 month and 2 months, respectively, after the publication under clause (i).
(C) Mailing required. The receiver shall mail a notice similar to the notice published under subparagraph (B) (i) at the time of such publication to any creditor shown on the institution’s books —
(i) at the creditor’s last address appearing in such books; or
(ii) upon discovery of the name and address of a claimant not appearing on the institution’s books within 30 days after the discovery of such name and address.

12 USC § 1821 (d) (3) (B), (C).

Notably, however, as we explained in Bobick,

[t]he FDIC’s failure to provide proper notice does not relieve the claimant of the obligation to exhaust administrative remedies, because FIRREA does not provide for a waiver or exception under those circumstances. The only exception to the strict requirement of exhaustion of remedies is where the claimant does not receive notice of the appointment of the receiver in time to file his claim.

(Citations and punctuation omitted; emphasis supplied.) Bobick, 321 Ga. App. at 865 (3) (c). See 12 USC § 1821 (d) (5) (C) (ii).

We conclude that Appellants received notice of the appointment of the FDIC as receiver in time to file a claim in the administrative claims process relating to Integrity. The FDIC was appointed as receiver of Integrity on August 29, 2008, and the uncontroverted evidence shows that Appellant Curtis, a principal of Appellant Olde Towne, received a default notice from the FDIC dated October 1,2008 in which the FDIC expressly referred to itself as “Receiver of Integrity Bank.” The letter was also shared with Seymour, another principal of Olde Towne. Furthermore, Appellants do not contend that the bar date for filing claims in the administrative claims process had expired by October 2008. Nor could they make such a contention, given that the bar date can be no less than 90 days after the first publication of notice of receivership to creditors, and here the first publication of notice could have been no earlier than August 29, 2008 when the FDIC was first appointed receiver. See 12 USC § 1821 (d) (3) (B) (i). Consequently, Appellants’ argument that they were not required to comply with the administrative exhaustion provision because of lack of proper notice from the FDIC is without merit. See Bobick, 321 Ga. App. at 865-866 (3) (c).

(b) Appellants contend that they were not required to comply with the administrative exhaustion provision because Multibank was prohibited from invoking the provision under Section 4.15 of the Loan Agreement between Multibank and the FDIC. That section provides:

Section 4.15. Use of the FDIC’s Name and Reservation of Statutory Powers. The Company [i.e., Multibank] shall not use or permit the use by its agents, successors or assigns of any name or combination of letters that is similar to “FDIC” or “Federal Deposit Insurance Corporation.” The Company will not represent or imply that it is affiliated with, authorized by or in any way related to the FDIC .... The Company shall be entitled to assert (and claim the benefit of) the statute of limitations established under 12 USC § 1821(d)(14).TheCompanyacknowledgesandagrees, however, that the assignment of any Loan or Underlying Collateral Document pursuant to the terms of this Agreement shall not constitute the assignment of any other rights, powers or privileges granted to the Initial Member [i.e., the FDIC as receiver] pursuant to the provisions [of] the Federal Deposit Insurance Act, including those granted pursuant to 12 USC § 1821 (d), 12 USC § 1823 (e) and 12 USC § 1825, all such rights and powers being expressly reserved by the Initial Member; nor shall the Company assert or attempt to assert any such right, power or privilege in any pending or future litigation involving any Loan transferred or purchased hereunder.

According to Appellants, because the FDIC in Section 4.15 chose not to assign to Multibank its “other rights, powers or privileges” under 12 USC § 1821 (d), Multibank cannot invoke the administrative exhaustion provision of FIRREA, 12 USC § 1821 (d) (13) (D). We are unpersuaded because the administrative exhaustion provision is a jurisdictional prerequisite binding on the courts, not a “right, power or privilege” granted to the FDIC that it can then choose whether to assign to other institutions such as Multibank.

As previously explained, 12 USC § 1821 (d) (13) (D) imposes a restriction on judicial review by the courts; if a claim falls within its ambit, “courts are divested of subject matter jurisdiction if the claimant failed to exhaust her administrative remedies before the FDIC.” Bobick, 321 Ga. App. at 863 (3). The subject matter jurisdiction of the courts is a matter granted by law that “cannot be waived or conferred on a court by agreement.” Brine v. Shipp, 291 Ga. 376, 377 (1) (729 SE2d 393) (2012). See OCGA § 15-1-2; Latin American Property & Cas. Ins. Co. v. Hi-Lift Marina, Inc., 887 F2d 1477, 1479 (11th Cir. 1989). Thus, because 12 USC § 1821 (d) (13) (D) controls the subject matter jurisdiction of the courts, it is not a “right, power or privilege” that can be waived or conferred on a court by agreement of the FDIC and other institutions. It follows that the reservation of certain “rights, powers or privileges” to the FDIC in Section 4.15 of the Loan Agreement has no bearing on the application of FIRREA’s administrative exhaustion provision.

Furthermore, we explained in Bobick that the broad language of 12 USC § 1821 (d) (13) (D) does not create a special right in favor of the FDIC in actions brought against it by a private party; “[r] ather, by its plain language, 12 USC § 1821 (d) (13) (D) refers to ‘any’ claim or action and does not make its application contingent upon whom the claim is against.” (Citation and punctuation omitted; emphasis in original.) Bobick, 321 Ga. App. at 864 (3) (a). It follows that compliance with 12 USC § 1821 (d) (13) (D) is not a special “right, power or privilege” granted specially to the FDIC that it can then decide whether to assign to others; instead, it is a jurisdictional prerequisite to the hearing of a claim by the courts. For this additional reason, Section 4.15 of the Loan Agreement does not preclude the application of the administrative exhaustion provision in this case.

Our conclusion that 12 USC § 1821 (d) (13) (D) is a jurisdictional prerequisite, rather than a “right, power or privilege” reserved exclusively to the FDIC by Section 4.15 of the Loan Agreement, does not render any of the language of that contractual provision meaningless. See Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 435 (1) (718 SE2d 343) (2011) (noting that a contract “should not be construed in a manner that would render any of its provisions meaningless or mere surplusage”). 12 USC § 1821 (d) contains multiple subsections, many of which do in fact confer “rights, powers or privileges” upon the FDIC as receiver, such as certain rule-making powers and subpoena powers. See, e.g., 12 USC § 1821 (d) (1), (2) (I). Hence, the language in Section 4.15 reserving to the FDIC the “rights, powers or privileges” granted to it “pursuant to 12 USC § 1821 (d)” is not rendered meaningless simply because that language has no bearing on a particular subsection, 12 USC § 1821 (d) (13) (D).

For these combined reasons, we conclude that Section 4.15 of the Loan Agreement between Multibank and the FDIC does not preclude the application of FIRREA’s administrative exhaustion provision in this case. The trial court therefore did not err in concluding that Appellants’ affirmative defenses and proposed counterclaims were barred by that provision, and thus in granting Multibank’s motion for summary judgment and denying Appellants’ motion to add counterclaims.

Decided March 18, 2014.

Rosenzweig, Jones, Horne & Griffis, George C. Rosenzweig, for appellants.

Morris, Manning & Martin, John P. MacNaughton, Robert W. Hoskyn, for appellee.

2. In light of our decision in Division 1, we need not address Appellants’ remaining enumeration of error.

Judgment affirmed.

Miller and Ray, JJ., concur.

       During the pendency of this appeal, George C. Rosenzweig, Jeffery Curtis’s legal representative, filed a suggestion of Curtis’s death and moved to voluntarily substitute himself as a party to this appeal under Court of Appeals Rule 43 (b). Rosenzweig’s motion is hereby granted, and he is substituted as a party to this appeal. However, for ease of reference, we will continue to refer to Curtis as an appellant throughout this opinion.

       Charles Scott Seymour, another member and investor in Olde Towne, also executed a personal guaranty for Olde Towne’s indebtedness. Seymour was named as a defendant in Multibank’s complaint, and the trial court granted summary judgment in favor of Multibank on its claims against him. Although Seymour originally was named as an Appellant, we dismissed him as a party to this appeal because the record shows that he has filed a petition for bankruptcy, and, as a result, all proceedings involving him have been stayed pursuant to 11 USC § 362 of the Bankruptcy Code. As our dismissal order makes clear, Seymour may re-file his appeal within 30 days following the date that the bankruptcy court terminates the automatic stay, grants appropriate relief from the automatic stay, or otherwise determines that the provisions of the automatic stay do not apply to the issues involved in this appeal.

       For the first time on appeal, Appellants argue that their affirmative defenses should not be construed as “claim[s] . . . for payment from” Integrity or “elaim[s] relating to any act or omission” of Integrity or the FDIC as receiver, and, therefore, should not he subject to the administrative exhaustion provision. See Bobick, 321 Ga. App. at 867 (3) (e). We will not consider legal arguments that were neither raised below nor ruled upon by the trial court. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) (573 SE2d 389) (2002); Nash v. Studdard, 294 Ga. App. 845, 849 (2) (670 SE2d 508) (2008).

       The record does not indicate when the first publication of notice of receivership to creditors was actually issued by the FDIC, but the publication obviously had to be after the FDIC was appointed as receiver for Integrity on August 29, 2008.


text:
    A13A2177.
    COMMUNITY MAGAZINE, LLC et al. v. COLOR XPRESS.
    (756 SE2d 564)
   DOYLE, Presiding Judge.

Color Xpress filed the instant suit on an account against Community Magazine LLC and Ed Chapman, alleging that Community Magazine owed Color Xpress $89,842.33 in principal plus interest on an open account for printing services provided by Color Xpress. Color Xpress also alleged that Chapman signed a personal guaranty for the debts of Community Magazine and was therefore liable for the same. The trial court entered an order granting Color Xpress’s motion for summary judgment, and this appeal followed. For the reasons that follow, we affirm in part and reverse in part.

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. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Color Xpress filed an action on an open account, claiming that it provided printing services to Community Magazine for which the defendants owed an outstanding balance of $89,842.33. Attached to the complaint were seven pages of a statement issued by Color Xpress to Community Magazine for services beginning on June 25, 2008, with a beginning balance of $0, to December 31, 2010, on which date the balance owed including finance charges was $103,020.56. The address for Color Xpress listed on the statement was“132J etplex Lane, Madison, AL.” Also attached to the complaint was a one-page document executed in August 2010 by Ed Chapman that included an “Authorization to Obtain Bank Credit Information,” and a “Personal Guaranty]” of the debts of Community Magazine.

The Authorization to Obtain Bank Credit Information stated, “I authorize the bank(s) listed as reference(s) on reverse side to release information for consideration of open account privileges for COLOR EXPRESS.” Over the line “(address) (city) (state)” appears “132 Jetplex Lane[,] Madison, Alabama.” Next, above the line “(signature) (title) (date)” appears “Ed Chapman Owner 8/13/10.”

Next, a paragraph entitled “Personal Guaranty]” states the following:

To induce ColorXPress to approve this Credit Application and in consideration of its so doing, we (or I), the undersigned, do hereby jointly, severally and personally guarantee the above purchaser’s full performance of its obligations and hereby agree to indemnify ColorXPress against any and all damage, loss, expense (including attorney’s fees) and/or liability sustained by ColorXPress by reason of or related to, the above purchaser’s failure to perform or to pay when due, charges incurred in accordance with the above agreement____

No other pages of an alleged credit application appear in the record.

Color Xpress thereafter filed a motion for summary judgment, attaching the affidavit of Harold Motter, who stated that he was the owner of Color Xpress, and he claimed that Community Magazine owed an outstanding balance of $89,842.33 in principal plus interest. Ed Chapman filed a pro se response to the motion for summary judgment, contending that Color Xpress had failed to show that he or Community Magazine agreed to establish a credit account or a personal guaranty, and any amount due was undetermined. Chapman attached an affidavit supporting his response, but did not provide specific figures supporting his argument that Community Magazine did not owe a debt to Color Xpress. It is unclear whether a hearing on the motion for summary judgment was held, but the trial court entered an order granting Color Xpress’s motion on May 15, 2013.

1. Chapman contends that the trial court erred by granting summary judgment to Color Xpress because the personal guaranty fails to satisfy the Statute of Frauds.

As the Supreme Court explained, under the Statute of Frauds and cases applying the Statute, a promise to answer for another’s debt is only enforceable against the promisor if it identifies the debt, the principal debtor, the promisor, and the promisee. It is well settled that a guaranty must identify the principal debtor by name. [If] a guaranty omits the name of the principal debtor, of the promisee, or of the promisor, the guaranty is unenforceable as a matter of law. Even where the intent of the parties is manifestly obvious, where any of these names is omitted from the document, the agreement is not enforceable because it fails to satisfy the Statute of Frauds. Moreover, a court must strictly construe an alleged guaranty contract in favor of the guarantor. The guarantor’s liability may not be extended by implication or interpretation. And parol evidence is not admissible to supply any missing essential elements of a contract required to be in writing by our Statute of Frauds. Thus, this Court is not authorized to determine the identity of the principal debtor, of the promisee, or of the promisor by inference as this would entail consideration of impermissible parol evidence.

Color Xpress failed to establish facts supporting the trial court’s determination that Chapman had executed a valid personal guaranty. The only evidence presented to satisfy the requirements under the Statute of Frauds consisted of the one-page document titled “Authorization to Obtain Bank Credit Information.” The document does not identify who the principal debtor is, and the only statement of liability by Chapman was for the “above purchaser,” which could only mean Color Xpress (not Community Magazine) based on the information listed in the document. Moreover, while the purported guaranty referenced a “Credit Application” and “above agreement,” the only agreement contained in the record was one authorizing Color Xpress to obtain bank credit information. Accordingly, the trial court erred by granting summary judgment to Color Xpress against Chapman based on the record evidence, and the judgment is reversed as to Chapman.

2. Community Magazine contends that the trial court erred by granting summary judgment against it because there is a material issue of fact as to the appropriate balance due. We disagree.

A suit on open account is available as a simplified procedure to the provider of goods and services where the price of such goods or services has been agreed upon and where it appears that the plaintiff has fully performed its part of the agreement and nothing remains to be done except for the other party to make payment.

Color Xpress presented Motter’s affidavit and the supporting documents for its allegation that Community Magazine owed Color Xpress $89,842.33 not including finance charges. Community Magazine’s answer was not verified, and it failed to provide specific evidence or legal argument challenging the amount of the debt owed. Accordingly, Color Xpress established a prima facie case, and the trial court did not err by granting its motion for summary judgment.

3. The defendants contend that the trial court erred by granting summary judgment to Color Xpress because no such entity exists. In this case, the defendants failed to raise before the trial court the issue of Color Xpress’s existence as a legal entity capable of bringing suit, but in its brief on appeal, Color Xpress admits that it is the trade name of a sole proprietorship.

Relying on Brand v. Southern Employment Svc., Russell v. O’Donnell, and Western & Atlantic R. Co. v. Dalton Marble Works, addressing the issue of whether a suit effectuated under a trade name is a “nullity,” the defendants contend that we should reverse the trial court’s order granting summary judgment and direct the court to dismiss the nonexistent action.

Pursuant to OCGA § 9-11-10 (a), “[i]n the complaint the title of the action shall include the names of all the parties . . ..” Nevertheless, “[i]t is not necessary to aver the capacity of a party to bring or defend an action, the authority of a party to bring or defend an action in a representative capacity, or the legal existence of an organized association of persons that is made a party.”

In Johnson & Johnson Constr. Co. v. Pioneer Neon Supply Co., this Court explained that “[a] petition brought in the trade[ jname of an individual may be amended by stating the real or true name of the person who purports to carry on the business to which the allegations of the petition relate; and the amendment does not state a new cause of action, or introduce a new party[,]” despite oft-cited general language from Dalton Marble Works that

[i]f the suit is brought in a name which is neither that of a natural person, a corporation, nor a partnership, it is a mere nullity. A natural person may bring a suit in his name for himself, or for the use of any other person when he holds the legal title and such other person the equitable title. A corporation may bring suit in its own name, and, if it fails fully to describe its legal entity, may amend by alleging that it is a corporation. A partnership may do likewise.

This language has been used in later cases to hold that actions filed under a trade name were mere nullities and therefore subject to dismissal unless the trade name appeared on its face to be a corporate entity even if the trade name was used by a sole proprietor doing business under the apparently corporate name.

After the passage of the Civil Practice Act in 1966, the Supreme Court of Georgia revisited this issue in Block v. Voyager Life Ins. Co. In that case, the Court addressed the issue of “whether under the Civil Practice Act,... the pleadings may be amended to substitute a named party plaintiff when suit is filed in the name of a party which is not a legal entity.” The Supreme Court noted that prior case law held that such suits were “mere nullit[ies] .” Implicitly disapproving this language, the Court in Block held that if

the party plaintiff named in a complaint is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer may be corrected by amendment. Additionally, a mere misnomer of a party in the pleadings is a defect which may be waived where the misnamed party is in fact the legally cognizable proper party in interest.

In this case, “Color Xpress” is the trade name utilized by a sole proprietorship, and the name is used in the documents between the parties. The sole proprietor is the legally cognizable proper party in interest and could have been substituted as the named plaintiff had the defendants properly raised this issue below. In addition to meeting the “liberal policies” of the Civil Practice Act, this bolding is also in harmony with the principle regarding trade names that “if one undertakes an obligation in a fictitious or trade name, the obligation is his own individually.” To the extent that Brand would appear to suggest an alternative holding, we note in that case, the defendant objected before the trial court based on the plaintiff’s incorrect name, which did not occur in this case.

Decided March 18, 2014.

Bryan S. Kaplan, for appellants.

Gonzalez, Saggio & Harlan, Alexander Yusupov, James W. Hays, Bernard E. Potter, for appellee.

Accordingly, this enumeration does not require reversal.

4. Based on our holding in Division 1 of this opinion, we need not address Chapman’s remaining enumeration.

Judgment affirmed in part and reversed in part.

McFadden and Boggs, JJ., concur.

       (Citations omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Color Xpress also submitted an e-mail between Motter and Chapman that contained reference to a past due balance of $89,972.08, which is referenced in Motter’s affidavit.

       The notice of appeal filed by Chapman and Community Magazine asked for inclusion of the transcript of the proceedings; however, no such transcript was filed with this Court, and the trial court’s order does not reference a hearing.

         (Citations and punctuation omitted.) Legacy Communities Group v. Branch Banking & Trust Co., 316 Ga. App. 496, 497-498 (729 SE2d 612) (2012), quoting Dabbs v. Key Equip. Finance, 303 Ga. App. 570, 572-573 (694 SE2d 161) (2010).

       See Legacy Communications Group, 316 Ga. App. at 498.

       Color Xpress relies on R.J. Griffin & Co. v. Continental Ins. Co., 230 Ga. App. 822, 823 (497 SE2d 586) (1998), for the legal premise that “no construction of a surety’s bond is ‘required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation.’ ” But this does not change our determination as the plain language of the document establishes no enforceable personal guaranty on the part of Chapman for any debts of Community Magazine.

       (Punctuation omitted.) Five Star Steel Constr. v. Klockner Namasco Corp., 240 Ga. App. 736, 738-739 (1) (c) (524 SE2d 783) (1999).

       See Traditional Properties, Inc. v. Performance Food Group of Ga., 291 Ga. App. 442, 443 (662 SE2d 250) (2008).

       247 Ga. App. 638, 638-639 (545 SE2d 67) (2001).

       132 Ga. App. 294, 296 (2) (208 SE2d 107) (1974).

       122 Ga. 774 (50 SE 978) (1905).

       OCGA § 9-11-9 (a).

       96 Ga. App. 867 (101 SE2d 918) (1958).

       (Punctuation omitted.) Id. at 868, quoting Hudgins Contracting Co. v. Redmond, 178 Ga. 317 (2) (173 SE 135) (1934).

       122 Ga. at 775.

       See Brand, 247 Ga. App. at 639 (holding that “Southern Employment Service” did not import a legal entity when true party was a “proprietorship owned by Millard Burke”); Cook v.

        Computer Listings, 137 Ga. App. 526 (224 SE2d 501) (1976) (holding that “Computer Listings” did not import a legal entity when true party was “Paul Boland, Partner in Computer Listings”); Russell, 132 Ga. App. at 294 (holding that “Ansley Forest Apartments” did not import a legal entity when true party was “J. W. O’Donnell d/b/a Ansley Forest”). But see Powell v. Ferguson Tile & Terrazzo Co., 125 Ga. App. 683 (188 SE2d 901) (1972) (holding that “Ferguson Tile & Terrazzo Company” did import a legal entity, even though that true party was not a corporation, but rather “Robert H. Ferguson, d/b/a Ferguson Tile & Terrazzo Company”); Johnson & Johnson Constr. Co., 96 Ga. App. at 868 (2) (holding that “Pioneer Neon Supply Company” did import a legal entity, even though the true party was not a corporation, but rather a sole proprietorship operating under the trade name).

       251 Ga. 162 (1) (303 SE2d 742) (1983).

       Id. at 162.

       Id. at 162 (1).

       Id. at 163 (1). See also OCGA § 9-11-9 (a) (“When a party desires to raise an issue as to the legal existence of any party, the capacity of any party to bring or defend an action, or the authority of a party to bring or defend an action in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.”).

       See Block, 251 Ga. at 163 (1); Haynes v. Armour Fertilizer Works, 146 Ga. 832, 834-835 (92 SE 648) (1917); Clark Brothers v. Wyche, 126 Ga. 24, 26 (54 SE 909) (1906).

       See Block, 251 Ga. App. at 163 (1).

        Galindo v. Lanier Worldwide, 241 Ga. App. 78, 84 (3) (526 SE2d 141) (1999). (“The use of a trade name does not create a separate legal entity, and if one undertakes an obligation in a fictitious or trade name, the obligation is his own individually.”).

       247 Ga. App. at 639 (relying on pre-Block cases). See also OCGA § 9-11-10 (a).