author: MILLER, Presiding Judge.

text:
    A12A0957.
    U. S. BANK, N.A. v. PHILLIPS.
    (734 SE2d 799)
   MILLER, Presiding Judge.

This case arises out of foreclosure proceedings instituted by U. S. Bank, N.A. against the residence owned by Otis Wayne Phillips. Phillips filed suit seeking damages and an injunction to prevent foreclosure, alleging that U. S. Bank had failed to properly evaluate his request for a loan modification under the federal Home Affordable Modification Program (“HAMP”). Specifically, Phillips’s complaint set forth claims for third-party beneficiary breach of contract; breach of the implied covenant of good faith and fair dealing; negligent implementation of HAMP; and wrongful attempted foreclosure. U. S. Bank filed a motion to dismiss Phillips’s claims, arguing that he failed to state a claim upon which relief can be granted. The trial court denied U. S. Bank’s motion.

We granted U. S. Bank’s application for interlocutory appeal to consider the propriety of the trial court’s order. The instant appeal ensued. U. S. Bank contends that dismissal of the complaint was required as a matter of law since Phillips was not a third-party beneficiary to the HAMP contract between U. S. Bank and the federal government; HAMP does not provide a private right of action to Phillips; and Phillips’s claims failed to set forth viable causes of action. For the reasons that follow, we affirm the dismissal as to the claims for third-party beneficiary breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent implementation of HAMP. We vacate the trial court’s decision as to the claim for wrongful attempted foreclosure and remand this case pending the Supreme Court of Georgia’s issuance of a decision in You v. JPMorgan Chase Bank, N.A., Case No. S13Q0040 (docketed Sept. 13, 2012). Accordingly, the trial court’s decision is reversed in part and vacated in part, and this case is remanded with direction.

Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga.App. 394, 395 (724 SE2d 401) (2012).

So viewed, the complaint alleged that in December 2007, Phillips executed a security deed pledging his residence located at 437 Barton Lane, Villa Rica, Georgia, as collateral for a loan issued by PHM Financial Incorporated d/b/a Professional Home Mortgage. The security deed listed Mortgage Electronic Registration Systems (‘MERS”) as the beneficiary. U. S. Bank later became the servicer for the mortgage loan.

Phillips subsequently was unable to make his mortgage payments and defaulted on the loan. In 2010, Phillips requested a loan modification under HAMP. U. S. Bank had signed a Servicer Participation Agreement (“SPA”) with the federal government, agreeing to participate in HAMP. The SPA incorporated a “Program Documentation,” which set forth guidelines, procedures, instructions, documentation, and directives issued by the U. S. Department of Treasury, Fannie Mae, or Freddie Mac in connection with the duties of participating servicers. The Program Documentation required participating servicers to evaluate delinquent loans for HAMP modifications and to collect the borrower’s financial information to determine whether HAMP was appropriate for the borrower. Phillips alleged that U. S. Bank failed to properly evaluate his application for a HAMP modification. U. S. Bank denied Phillips’s application and attempted to foreclose on his residence.

Phillips filed the instant complaint against U. S. Bank, alleging four causes of action: (1) third-party beneficiary breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) negligent implementation of HAMP; and (4) wrongful attempted foreclosure. We address each of Phillips’s claims in turn below.

1. Third-Party Beneficiary Breach of Contract. U. S. Bank contends that Phillips lacks standing to pursue a breach of contract claim based upon HAMP since HAMP did not create an actionable third-party beneficiary right. We agree.

Phillips does not claim that he was a party to the HAMP SPA between U. S. Bank and the federal government. Rather, Phillips claims that he is entitled to sue for enforcement of the HAMP SPA as a third-party beneficiary.

[I]n order for a third party to have standing to enforce a contract under OCGA § 9-2-20 (b), it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit incidentally from performance of the agreement is not alone sufficient. There must be a promise by the promisor to the promisee to render some performance to a third person, and it must appear that both the promisor and the promisee intended that the third person should be the beneficiary.

(Punctuation and footnote omitted.) Danjor, Inc. v. Corporate Constr., Inc., 272 Ga.App. 695, 697 (1) (613 SE2d 218) (2005). Although the Georgia state appellate courts have not previously addressed the issue as to whether HAMP created third-party beneficiary standing to enforce HAMP, the federal courts in Georgia have decided this issue and have consistently rejected this claim.

In Miller v. Chase Home Finance, LLC, 677 F3d 1113, 1115-1116 (III) (11th Cir. 2012), the federal appellate court summarized the legislative purpose for the enactment of HAMP as follows:

During the economic crisis of 2008, Congress passed the Emergency Economic Stabilization Act of 2008 (EESA), 12 U.S.C. §§ 5201-5261. EESA charges the Secretary of the United States Department of the Treasury with acting in a manner that “preserves homeownership and promotes jobs and economic growth.” Id. § 5201(2)(B). To this end, the Department of the Treasury created the Making Home Affordable Program, a program that included HAMP.
HAMP is designed to prevent avoidable home foreclosures by incentivizing loan servicers to reduce the required monthly mortgage payments for certain struggling homeowners. Servicers are obliged to abide by guidelines promulgated by the Secretary when determining a mortgagor’s eligibility for a permanent loan modification. U.S. Dept. of Treasury, Making Home Affordable Program, Handbook for Servicers of Non-GSE Mortgages at 27 (Dec. 15, 2011). To assure that servicers comply with the guidelines, the Secretary designated Freddie Mac to conduct compliance assessments of HAMP participants.

Id.

It is generally recognized that “government contracts that benefit members of the public are assumed to create incidental beneficiaries absent a clear intent to the contrary.” (Citations and punctuation omitted.) Warren v. Bank of America, No. 4:11-cv-70, 2011 U. S. Dist. LEXIS 55777, at *7 (III) (A) (1) (S.D. Ga. May 24, 2011). Notably, the federal courts have explained that EESA and HAMP were not passed for the special benefit of struggling homeowners, even though they incidentally benefit from HAMP’s incentives. See Miller, supra, 677F3dat 1116 (III); see also Hall v. Wells Fargo Bank, No. 7:11-cv-63 (HL), 2011 U. S. Dist. LEXIS 104615, at *6-7 (III) (a) (i) (M.D. Ga. Sept. 15, 2011) (ruling that HAMP “was not created with a certain plaintiff in mind; instead, the statute was created to assist homeowners and financial institutions in general”) (citation and punctuation omitted). As such, Georgia’s federal courts have held that homeowners are incidental beneficiaries of the loan servicers’ participation in HAMP, and that Congress did not intend to endow homeowners with third-party beneficiary rights to enforce HAMP. See Miller, supra, 677 F3d at 1116-1117 (III); Finch v. Bank of America, No. 3:12-cv-14 (CAR), 2012 U. S. Dist. LEXIS 49294, at *4-6 (M.D. Ga. April 9, 2012) (noting that “a third-party beneficiary status of a mortgagor within the Agreement has not been recognized by any court in the Eleventh Circuit[.]”) (citations and punctuation omitted); Jean v. American Home Mtg. Servicing, Inc., No. 1:11-cv-1101-WSD, 2012 U. S. Dist. LEXIS 45992, at *12 (II) (D) (N.D. Ga. Mar. 30, 2012) (ruling that neither HAMP nor EESA vest mortgagors with third-party beneficiary rights to enforce HAMP agreements under state law); Hall, supra, 2011 U. S. Dist. LEXIS 104615, at *8-9 (III) (a) (ii) (applying Georgia law and ruling that HAMP does not convey third-party beneficiary status to homeowners); Warren, supra, 2011 U. S. Dist. LEXIS 55777, at *6-9 (III) (A) (1) (applying Georgia law and ruling that homeowners are mere incidental beneficiaries who lack standing to enforce the HAMP Agreements on a breach of contract theory).

Moreover, in enacting EESA and HAMP, the legislature gave the Secretary of the Treasury the right to initiate a cause of action under the Administrative Procedure Act, 12 USC § 5229 (a) (1). See Miller, supra, 677 F3d at 1116 (III); Warren, supra, 2011 U. S. Dist. LEXIS 55777, at *11 (III) (A) (2) (“Legislative history indicates that the right to initiate a cause of action [under HAMP] lies with the Secretary via the Administrative Procedure Act.”) (citation and punctuation omitted). In this regard, the Secretary of the Treasury has designated Freddie Mac as the compliance officer to ensure that the HAMP guidelines were followed by the loan servicer participants. Miller, supra, 677 F3d at 1116 (HI); see also Warren, supra, 2011 U. S. Dist. LEXIS 55777, at *8 (III) (A) (2) (recognizing that “Congress delegated enforcement authority to Freddie Mac”) (citations and punctuation omitted.). In light of this statutory scheme and provisions for administrative remedies, the federal courts in Georgia have consistently held that homeowners do not have a private right of action to pursue alleged violations of HAMP. See Miller, supra, 677 F3d at 1116-1117 (III); see also Finch, supra, 2012 U. S. Dist. LEXIS 49294, at *4-6 (dismissing borrower’s claim for a HAMP loan modification since “[t]he Eleventh Circuit has explicitly held that nothing express or implied in HAMP gives borrowers a private right to action”) (citations and punctuation omitted); Kabir v. Statebridge Co., LLC, No. 1:11-cv-2747-WSD, 2011 U. S. Dist. LEXIS 109778, at *27-28 (II) (B) (6) (N.D. Ga. Sept. 27, 2011) (noting that other federal courts have likewise found that HAMP and EESA do not expressly or impliedly create a cause of action to borrowers for enforcement of HAMP agreements); Hall, supra, 2011 U. S. Dist. LEXIS 104615, at *5-7 (III) (a) (i) (ruling that there is no private cause of action under HAMP, and expressing that the legislative scheme would not be furthered by an implied private right of action since such would expose servicers to significant litigation expenses and discourage servicers from participating in the program); Warren, supra, 2011 U. S. Dist. LEXIS 55777, at *8-12 (III) (A) (2) (ruling that there is no express or implied cause of action to homeowners under HAMP).

We find that the aforementioned federal court decisions are highly persuasive. As an initial matter, “[f]ederal law controls the interpretation of contracts where the United States is a party to the contract.” (Citations and punctuation omitted.) Rivera v. Bank of America Home Loans, No. 09-cv-2450 (LB), 2011 U. S. Dist. LEXIS 43138, at *11 (II) (E.D.N.Y. Apr. 21, 2011). Moreover, in resolving the third-party beneficiary issue, the federal courts have correctly applied Georgia state law and have properly concluded that HAMP was not intended to create a right of enforcement by homeowners as third-party beneficiaries. See Finch, supra, 2012 U. S. Dist. LEXIS 49294, at *4-5; Hall, supra, 2011 U. S. Dist. LEXIS 104615, at *8-9 (III) (a) (ii); Warren, supra, 2011U. S. Dist. LEXIS 55777, at *6-8 (III) (A) (1). Since Phillips did not have a private right of action to enforce HAMP against U. S. Bank, his third-party breach of contract claim should have been dismissed.

2. Breach of the Implied Covenant of Good Faith and Fair Dealing. U. S. Bank also argues that Phillips cannot circumvent his lack of a private right of action by alleging a breach of the implied covenant of good faith and fair dealing. Again, we agree that Phillips’s claim fails as a matter of law.

It is true that

[e]very contract implies a covenant of good faith and fair dealing in the contract’s performance and enforcement. The implied covenant modifies and becomes a part of the provisions of the contract, but the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability.

(Citations and punctuation omitted; emphasis supplied.) Myung Sung Presbyterian Church, Inc. v. North American Assn. &c. Ministries, 291 Ga. App. 808, 810 (2) (662 SE2d 745) (2008); see also WirelessMD v. Healthcare.com Corp., 271 Ga.App. 461, 468 (2) (610 SE2d 352) (2005). Here, Phillips alleged that U. S. Bank breached an implied covenant of good faith and fair dealing by failing to properly determine his eligibility for a HAMP loan modification. Phillips has not set forth any breach of contract claim that was independent of U. S. Bank’s obligations under HAMP. As stated in Division 1 above, Phillips’s breach of contract claim under HAMP was not a viable cause of action. It thus follows that Phillips could not maintain a claim for breach of the covenant as an independent basis for liability. See Miller, supra, 677 F3d at 1117 (III) (applying Georgia law and ruling that a borrower lacked standing to pursue his claim for breach of an implied duty of good faith and fair dealing, which was premised upon his non-viable claim regarding the bank’s HAMP obligations); Edwards v. Aurora Loan Svcs., LLC, 791 FSupp.2d 144, 152 (IV) (C) (2) (D. C. Cir. 2011) (dismissing the borrowers’ claim for breach of the covenant of good faith and fair dealing premised upon a HAMP violation since the borrowers were neither parties to the SPA nor intended beneficiaries thereunder). The trial court’s failure to dismiss this claim was erroneous.

3. Negligent Implementation of HAMP. U. S. Bank argues that Phillips’s claim for negligent implementation of HAMP also fails as a matter of law.

“[I]t is well settled that violating statutes and regulations does not automatically give rise to a civil cause of action by an individual claiming to have been injured from a violation thereof.” (Punctuation and footnote omitted.) Govea v. City of Norcross, 271 Ga. App. 36, 41 (1) (608 SE2d 677) (2004). As explained in Division 1 above, the statutory scheme and provisions of HAMP do not provide a private cause of action for homeowners. The exclusive regulatory remedy is vested in the Secretary of the Treasury and Freddie Mac. Consequently, Phillips cannot recover damages based upon this negligence claim. Cf. id.

Phillips nevertheless points to OCGA § 51-1-6 in support of his claim that Georgia law authorizes a negligence claim notwithstanding the fact that no cause of action is given in express terms. OCGA § 51-1-6 provides:

When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.

This statutory provision does not apply here.

While homeowners incidentally benefit from HAMP’s incentives, homeowners are not intended third-party beneficiaries to whom servicers owe a legal duty under HAMP. See Miller, supra, 677 F3d at 1116 (III); see also Hall, supra, 2011 U. S. Dist. LEXIS 104615, at *6-7 (III) (a) (i). Compare Jenkins v. Wachovia Bank, N.A., 314 Ga. App. 257, 259 (1) (a) (724 SE2d 1) (2012) (where the plain language of the Gramm-Leach-Bliley Act stated that financial institutions have a legal duty to protect certain information for their customers). The provisions of HAMP do not plainly impose a legal duty intended to benefit homeowners, so as to authorize a private negligence cause of action. See Miller, supra, 677 F3d at 1116 (III); Warren, supra, 2011 U. S. Dist. LEXIS 55777, at *8 (III) (A) (2). Dismissal of Phillips’s negligence claim under HAMP was therefore required.

4. Wrongful Attempted Foreclosure. U. S. Bank also challenges the trial court’s failure to dismiss Phillips’s wrongful attempted foreclosure. Phillips’s wrongful attempted foreclosure claim sought an injunction to prevent U. S. Bank from proceeding with a foreclosure of his residence. As the basis for his claim, Phillips alleged that U. S. Bank was not the true holder of the note and security deed, and therefore, it lacked the requisite authority to institute foreclosure proceedings.

Notably, Phillips’s claim appears to raise the same question posed in You v. JP Morgan Chase Bank, N.A., No. 1:12-cv-202-JECAJB, 2012 U. S. Dist. LEXIS 127461, at *17 (III) (C) (N.D. Ga. Sept. 7, 2012), inquiring “whether a [security] deed holder who does not also hold the note, or have an interest in the underlying debt obligation, can validly institute foreclosure proceedings.” Recognizing that there are no clear controlling precedents deciding this issue, the federal court certified the question to the Supreme Court of Georgia. Id. The Supreme Court of Georgia’s decision in You v. JP Morgan Chase Bank, N.A., Case No. S13Q0040 (docketed Sept. 13, 2012) will be dispositive of the question of whether Phillips’s complaint asserts a viable claim for relief against U. S. Bank. Accordingly, the trial court’s order as to the wrongful attempted foreclosure claim is vacated, and this case is remanded. Any further proceedings in this matter should be stayed until the Supreme Court of Georgia has rendered its decision in You, supra.

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

Doyle, P. J., and Boggs, J., concur.

Decided November 28, 2012.

Swift, Currie, McGhee & Hiers, Douglas L. Clayton, for appellant.

Peter C. Ensign, for appellee.

       We note that the majority of other federal courts have likewise held that borrowers are not third-party beneficiaries under HAMP. See Edwards v. Aurora Loan Svcs., LLC, 791 FSupp.2d 144, 152 (TV) (C) (1) (D. C. Cir. 2011) (citing cases which hold that borrowers do not have standing to enforce the terms of HAMP SPAs as third-party beneficiaries); Rivera v. Bank

        of America Home Loans, No. 09-cv-2450 (LB), 2011 U. S. Dist. LEXIS 43138, at *18 (II) (B) (E.D.N.Y. Apr. 21, 2011) (citing a lengthy list of cases and noting that “[w]ith very few exceptions, almost all federal courts [that] have addressed this precise issue have rejected borrowers’ claims to enforce the [SPAs] as third[-]party beneficiaries.”) (citations and punctuation omitted).

       Based upon the EESA provisions and the HAMP guidelines, homeowners are not without recourse in challenging a HAMP participant’s noncompliance with HAMP’s obligations. A homeowner may report alleged instances of noncompliance to Freddie Mac, which is charged with the duty to conduct compliance assessments, or to the Secretary of the Treasury, who may initiate a cause of action. See, e.g., 12 USC § 5229 (a) (1); Miller, supra, 677 F3d at 1116 (III); Warren, supra, 2011 U. S. Dist. LEXIS 55777, at *8 (III) (A) (2).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A0980.
    AMERICAN MANAGEMENT SERVICES EAST, INC. et al. v. FORT BENNING FAMILY COMMUNITIES, LLC et al.
    (734 SE2d 833)
   BARNES, Presiding Judge.

American Management Services East, Inc. and American Management Services, LLC (collectively “Pinnacle”) appeal from the order of the trial court lifting the restriction in an earlier injunction that had prohibited Fort Belvoir Residential Communities (hereinafter “FBRC”) from removing Pinnacle as the property manager at the Fort Belvoir facility. On appeal, Pinnacle contends that the trial court deprived it of its due process rights by denying it a meaningful opportunity to be heard, abused its discretion in dissolving the restriction despite evidence showing that Pinnacle would suffer irreparable harm, and erred in accepting an erroneous construction of the Belvoir Property Management Agreement (“PMA”). Upon our review, we affirm.

The facts relevant to this appeal demonstrate that Pinnacle is the property manager for privatized military housing in Fort Belvoir, Virginia and Fort Benning, Georgia. FBRC owns the Fort Belvoir property, and Fort Benning Family Communities, LLC (hereinafter “FBFC”), owns the Fort Benning property. Pinnacle entered into property management agreements with FBRC and FBFC. On May 20, 2010, FBRC and FBFC filed a complaint in Muscogee County Superior Court seeking a declaratory judgment that Pinnacle’s property management agreements with FBRC and FBFC had automatically terminated for cause because of Pinnacle’s alleged misconduct at the Fort Benning property. The complaint also alleged breach of fiduciary duty, fraud, conspiracy to commit fraud, and unjust enrichment, and sought an accounting. The plaintiffs later amended the complaint to allege additional acts of fraud and other misconduct at Fort Benning as well.

On June 14,2010, FBRC filed a motion for a temporary restraining order and interlocutory injunction to prevent Pinnacle from interfering with certain audit rights it had under the PMA. The trial court granted the TRO on June 25, 2010 and enjoined Pinnacle “from interfering with FBRC’s audit of the Belvoir project,” and directed it to, among other things, provide the materials requested by the auditing firm, grant access to Pinnacle employees for interviews, and not communicate with its employees about the audit interviews. The order further provided that Pinnacle could have its own auditor and lawyer present during the interviews with Pinnacle employees.

A short time later, on July 9,2010, FBRC filed another motion for a TRO requesting that the trial court direct Pinnacle to transfer the asset and property management database at Fort Belvoir to a Yardi System-hosted server instead of a Pinnacle-hosted server, and to grant FBRC full access to the database. The trial court granted the motion on August 31, 2010 and further directed that FBRC could not “unilaterally remove [Pinnacle] from the Fort Belvoir project until such time as the Court has heard and decided the declaratory judgment action ... or until further order of this Court.”

On July 12, 2011, FBRC filed a motion to lift the restriction on removal of Pinnacle as the property manager at Fort Belvoir. FBRC alleged that as a result of an audit, it had uncovered instances of fiscal misconduct by Pinnacle at Fort Belvoir, including payoffs from vendors to Pinnacle employees, duplicate and “phantom” charges, overcharging by vendors, and falsifications of work orders. On October 14, 2011, after an extensive three-day hearing, the trial court granted FBRC’s motion to lift the restriction on removing Pinnacle from the Fort Belvoir facility. The October 2011 order modified the August 2010 order by removing the paragraph containing the restriction, and provided that “the remainder of the August... Temporary Restraining Order shall remain in full force and effect until further order of this Court.” Pinnacle appeals from this order.

1. FBRC has moved to dismiss the appeal, contending that this Court lacks jurisdiction because Pinnacle failed to file an application for interlocutory review as required by OCGA § 5-6-34 (b). FBRC essentially argues that orders modifying TRO’s or interlocutory injunctions are not directly appealable.

“It is incumbent upon this Court to inquire into its own jurisdiction.” Jenkins v. State, 284 Ga. 642, 643 (1) (670 SE2d 425) (2008). OCGA § 5-6-34 (a) (4) provides that appeals may be taken from “[a]ll judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions.” The October 2011 order at issue in this case deleted from the August 2010 order the restriction against the unilateral removal of Pinnacle as property manager, but the order left in effect the remainder of the earlier injunctive order. Accordingly, the October 2011 order was itself an interlocutory injunction that modified the August 2010 interlocutory injunction, and was thus directly appealable pursuant to OCGA § 5-6-34 (a) (4).

Although FBRC cites Clark v. Atlanta Independent School System, 311 Ga. App. 255 (715 SE2d 668) (2011), for the proposition that orders that merely amend previous grants of injunctive relief are not directly appealable, in that case, the appellants sought to appeal an order that addressed multiple orders. Id. at 256. It ruled on two discovery motions, denied a motion to dismiss, denied a request for injunctive relief, and amended a prior order in which the court had granted an interlocutory injunction. Id. at 256-257. However, the

appellants [did] not enumerate error upon the trial court’s denial of injunctive relief and instead [sought] to invoke this Court’s jurisdiction upon the basis that the order, in substance, granted partial summary judgment to the appellees and [was] therefore directly appealable.

Id. at 255. The case did not address the issue of whether the appellants could have directly appealed the portion of the order denying injunctive relief or amending the prior order in which the court had granted an interlocutory injunction. Id.

Thus, as the October 2011 order was an interlocutory injunction it was directly appealable pursuant to OCGA § 5-6-34 (a) (4), and FBRC’s motion to dismiss is denied.

2. Pinnacle first contends that the October 2011 order lifting the provision that restricted FBRC from removing Pinnacle as the property manager at the Fort Belvoir facility violated its due process rights. Pinnacle maintains several arguments within the context of its due process claim, including that entry of the June 2010 TRO prevented a full and meaningful presentation of the merits of the case, that the October 2011 order was based entirely on hearsay testimony, and that Pinnacle was improperly limited in its discovery.

The constitution of this state guarantees to all persons due process of law and unfettered access to the courts of this state. These fundamental constitutional rights require that every party to a lawsuit be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. Integral to these rights is the ability to present witnesses and other lawful evidence; thus, limitations imposed by a trial judge that prevent a full and meaningful presentation of the merits of the case mandate reversal.

(Citations and punctuation omitted.) Cousins v. Macedonia Baptist Church, 283 Ga. 570, 573-574 (1) (662 SE2d 533) (2008).

We first note that to the extent it asserts any arguments based on the provisions in the June 2010 TRO regarding FBRC’s audit rights and access to its employee’s audit interviews, the entry of that order has not been enumerated as error, and “[a] party cannot expand [its] enumerations of error through argument or citation in [its] brief.” (Citation and punctuation omitted.) Robertson v. State, 277 Ga.App. 231, 233 (1), n. 5 (626 SE2d 206) (2006). Pinnacle’s

argument pertaining to [the June 2010] order, under this particular enumeration, cannot be considered as one cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold; statements in appellate briefs cannot expand the scope of review to include issues not reasonably contained within the enumeration under consideration.

Jabaley v. Jabaley, 208 Ga.App. 179, 180 (2) (430 SE2d 119) (1993).

Pinnacle also maintains that its due process rights were violated because the trial court considered the hearsay testimony of Louis Dudney, a certified public accountant, and the supervising forensic auditor for the auditing company conducting the audit of the Fort Belvoir facility. Dudney’s affidavit was filed on July 19, 2011, and he also testified at the hearings on the motion to lift the restriction which were held on September 1, 2, and 12, 2011. Dudney testified extensively about the various allegations of misconduct the auditing firm uncovered during the forensic audit, and recounted the auditing steps he undertook based on the allegations.

Pretermitting whether Dudney’s testimony contained instances of hearsay, we note that “[i]n hearings on interlocutory injunction, the rules of evidence are not in all respects as rigidly enforced as on final trials. In such cases the admission of some secondary, hearsay, or opinion evidence will not necessarily require a reversal.” (Citations and punctuation omitted.) Kniepkamp v. Richards, 192 Ga. 509, 521 (9) (16 SE2d 24) (1941). Likewise, when the trial court, sitting as the trier of fact, hears both admissible and inadmissible evidence, “it is presumed that he separates the wheat from the chaff.” (Punctuation and footnote omitted.) In the Interest of R. G., 249 Ga.App. 91, 96 (3) (547 SE2d 729) (2001). There is no indication here that the trial court did otherwise. In its order lifting the restriction, the trial court indicated that it had “considered all pleadings and supporting affidavits and exhibits.” And, indeed, the trial court had before it numerous independently admissible business records and sworn depositions upon which it could have based its opinion.

Furthermore, although Pinnacle alleges on appeal that the trial court “overruled more than two dozen specific objections,” it then fails to argue with any particularity the basis for its contention that the trial court erred in overruling any one of those specific objections. Our review of the record leads us to conclude that many of the trial court’s rulings were based on FBRC’s assertion that the testimony was provided to show the steps of the auditing process rather than the truth of the matter asserted. See OCGA § 24-3-14 (b). We will not presume that the trial court considered the testimony for any other purpose in rendering its ruling on the interlocutory injunction, where, as here, there is nothing in the record to suggest otherwise.

Pinnacle also appears to contend that its due process rights were violated because it was denied timely access to certain discovery, and because the trial court denied its motion for a continuance. Pinnacle’s very general allegations regarding this error provide no basis for reversal. The evidence in the 26-volume record belies Pinnacle’s contention that it was denied access to “basic discovery.” The trial court has “broad discretion in controlling discovery, . . . and [this Court] will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” Amaechi v. Somsino, 259 Ga. App. 346, 347 (577 SE2d 48) (2003). Pinnacle has not demonstrated such abuse.

Likewise, to the extent that Pinnacle argues that the trial court erred in denying its motion for a continuance because it received certain documents “just weeks or days” before the hearing,

[a] motion for continuance of a trial is properly addressed to the sound legal discretion of a trial judge, who is in control of the management of the case in court. The exercise of that discretion will not be disturbed by the appellate courts unless the discretion is manifestly abused. In all cases, the party making an application for a continuance must show that he has used due diligence.

(Citations and punctuation omitted.) In re Estate of Jackson, 241 Ga. App. 392, 393-394 (1) (526 SE2d 884) (1999). See also OCGA §§ 9-10-166; 9-10-167.

Moreover, Pinnacle has the burden to show error affirmatively by the record, and this burden cannot be discharged by merely reciting error in the brief. Speir v. Krieger, 235 Ga. App. 392, 394-395 (509 SE2d 684) (1998). Pinnacle’s failure to fully support this enumeration with more than just a very generalized argument or citations to the record limits our ability to address it. Court of Appeals Rule 25 (c) (2).

3. Pinnacle also contends that the trial court erred in “dissolving” the August 2010 injunction. It contends that it will suffer irreparable harm if PBRC is permitted to terminate the Belvoir PMA before the trial. Specifically, Pinnacle asserts that the October 2011 order will moot the pending declaratory judgment action, will result in it being denied certain “variable” benefits under the PMA, and will jeopardize its equitable rights in Clark Pinnacle Belvoir, an affiliate company. We do not agree.

Trial courts have broad discretion in deciding whether to grant an interlocutory injunction, but “the power to do so shall be prudently and cautiously exercised.” (Citations and punctuation omitted.) Meinhardt v. Christianson, 289 Ga. App. 238, 240 (2) (656 SE2d 568) (2008). We will not reverse the trial court’s exercise of its discretion “unless a manifest abuse of that discretion is shown or unless there was no evidence on which to base the ruling.” Id. at 241 (2). A trial court

may issue an interlocutory injunction to maintain the status quo until the final hearing if, by balancing the relative conveniences of the parties, it determines that they favor the party seeking the injunction. That is because an interlocutory injunction is a device to keep the parties in order to prevent one from hurting the other whilst their respective rights are under adjudication. There must be some vital necessity for the injunction so that one of the parties will not be damaged and left without adequate remedy.

(Citations and punctuation omitted.) Hampton Island Founders v. Liberty Capital, 283 Ga. 289, 293 (1) (b) (658 SE2d 619) (2008).

In this case, Pinnacle has not shown irreparable harm, and while it argues that the October 2011 order removing the restriction threatens to moot the pending declaratory judgment action, and that it will be deprived of the financial and ancillary benefits of the remainder of the PMA’s terms, the trial court’s order makes no specific findings regarding Pinnacle’s rights under the PMA. Pinnacle is not foreclosed from receiving money damages related to any wrongful termination of the PMA should the trial court ultimately hold that the contract was wrongfully terminated. Thus, Pinnacle has not shown that, even if harmed by the interlocutory injunction, it is left without an adequate remedy.

Although Pinnacle also argues that FBRC failed to show the likelihood of its success on the merits, “a trial court is not required to find that a movant is likely to succeed on the merits before granting an interlocutory injunction, under certain circumstances where other equitable factors counsel in favor of the grant.” (Emphasis omitted.) Toberman v. Larose Ltd. Partnership, 281 Ga. App. 771, 778 (1) (637 SE2d 158) (2006). Moreover, regarding Pinnacle’s argument that public interest concerns favor the denial of the injunction because of the importance of its service in providing well-managed military housing,

a contract should not be held unenforceable as being in contravention of public policy except in cases free from substantial doubt where the prejudice to the public interest clearly appears. Enforcement of a contract or a contract provision which is valid by the law governing the contract will not be denied on the ground of public policy, unless a “strong case” for such action is presented.

Decided November 28, 2012.

Page, Scrantom, Sprouse, Tucker & Ford, William L. Tucker, Marcus B. Calhoun, Jr., Greenberg Traurig, JoeD. Whitley, Stephanie L. Oginsky, Michael J. King, for appellants.

Buchanan & Land, Jerry A. Buchanan, Lori M. Leonardo, Bondurant, Mixson & Elmore, Michael B. Terry, for appellee.

(Citations and punctuation omitted.) Nationwide Gen. Ins. Co. v. Parnham, 182 Ga. App. 823, 825 (4) (357 SE2d 139) (1987).

Here, based on the evidence in the record and balancing the relative equities of the parties, we cannot say it was a manifest abuse of the trial court’s discretion to modify the injunction to lift the restriction prohibiting FBRC from removing Pinnacle as property manager at the Fort Belvoir facility.

4. Pinnacle also contends that the trial court erred in accepting FBRC’s construction of the PMA. It maintains that by allowing FBRC to remove Pinnacle as the manager of the Fort Belvoir facility, the trial court misconstrued the terms of the PMA.

On the hearing of an application for an interlocutory injunction, the trial judge should not undertake to finally adjudicate issues of fact, “but should determine questions of evidence only to the extent necessary to decide whether interlocutory relief should be granted.” Oliver v. Forshee, 224 Ga. 200 hn. 1 (160 SE2d 828) (1968). Here, contrary to Pinnacle’s assertion, the trial court made no conclusive factual or legal findings regarding the construction of the PMA. While its order, in effect, permitted FBRC to remove Pinnacle as the manager of the Fort Belvoir facility, the complaint in Muscogee County Superior Court seeking a declaratory judgment that the property management agreements with Pinnacle automatically terminated for cause because of Pinnacle’s alleged misconduct remains pending in the trial court. See Bradley v. Roberts, 233 Ga. 114 (210 SE2d 236) (1974); Carter v. Puckett, 237 Ga. 494 (228 SE2d 878) (1976). Thus, the issue of whether the PMA automatically terminated under the circumstances present here is left for further proceedings.

Accordingly, in these circumstances, the trial court did not abuse its discretion in lifting the restriction in its earlier injunction prohibiting FBRC from removing Pinnacle as the property manager.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       We granted a stay of the trial court’s order pending the resolution of the appeal.

       Although the order was referred to as a TRO, it remained in effect for more than a year. See OCGA § 9-11-65 (b) (TRO expires by its terms or no later than 30 days unless the party restrained consents to a longer period). Because the order was not limited to 30 days, it was not a TRO; instead, looking at substance over nomenclature, it was an interlocutory injunction that preserved the status quo pending a trial on the merits.

       Pinnacle filed a motion to dissolve the June 2010 TRO, but it does not appear that the trial court ruled on the motion. “[I]t is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver.” (Punctuation and footnote omitted.) Totino v. State, 266 Ga.App. 265, 268 (3) (596 SE2d 749) (2004). Moreover, if such a ruling was made, Pinnacle has not provided a record citation to it, and “this [Cjourt has no duty to cull the record in search of evidence to support the contentions of parties.” Cox v. Southern Guaranty Ins. Co., 254 Ga.App. 776, 778 (2) (563 SE2d 882) (2002).

       Summarized statements of what books of account and records show are admissible, provided the books and records themselves are accessible to the court and the parties. Cotton v. John W. Eshelman & Sons, 137 Ga.App. 360, 363 (2) (223 SE2d 757) (1976).

       Although in construing contracts our Georgia laws take into consideration the interests of individuals in gaining and pursuing a livelihood, and of commercial concerns in protecting property, relationships, good will and economic advantage, the broader public policy favors individual freedom to enter into contracts and to contract at will. Shirk v. Loftis Bros. & Co., 148 Ga. 500 (97 SE 66) (1918).


author: Ray, Judge.

text:
    A12A0987.
    CALHOUN v. THE STATE.
    (734 SE2d 809)
   Ray, Judge.

After a jury trial, Preston Calhoun was convicted of four counts of aggravated assault and one count each of armed robbery and false imprisonment arising from an armed robbery of a Dollar General store and an attempted robbery of a Cato women’s clothing store about two weeks later. Appellant appeals the denial of his motion for new trial, arguing that the trial court erred in denying his motion to sever and his motions for directed verdict on two counts. Appellant also argues that the trial court erred in charging the jury on aggravated assault. Because we find that the trial court erred in denying his motion for a directed verdict as to aggravated assault, we reverse in part and affirm in part.

Viewed in the proper light, the evidence adduced at trial shows that on November 19, 2007, appellant’s co-defendant, Roslynn Ford-Calhoun, entered a Dollar General store in Stockbridge and walked around the store, pretending to shop while talking on her cell phone. Ford-Calhoun then informed appellant by cell phone that it was safe for him to enter the store. Appellant, who was wearing large sunglasses, then entered the store, showed his gun to the cashier, and said “you know what it is. Give it up.” Appellant snatched money from the cashier’s hands and then demanded that she “give [him] the till, all the safe[,] and your deposit.” When the cashier did not act quickly enough, appellant pointed the gun at her stomach, and demanded that she give him money from the store’s safe. Appellant then took some money from the safe and fled the store. Once outside, appellant noticed the store’s manager, Terrance Quarterman, and went over to him, aimed his gun at Quarterman’s head, and demanded that he hand over the store’s bank deposit. When Rick Kurtz drove into the store’s parking lot, he noticed Quarterman engaged in a confrontation with appellant, and he came over to provide assistance. Appellant turned to Kurtz, and said “[t]urn around [and] I’ll blow your ... head off.” Appellant then fled the scene and got into a black Cadillac driven by Ford-Calhoun.

Approximately two weeks later, on December 4, 2007, Ford-Calhoun entered Cato, a women’s clothing store in McDonough. Ford-Calhoun began to ask the staff about purchasing an item when appellant, wearing large sunglasses, entered the store. Appellant then ran up to Cathy Johnson, the store’s employee, displayed his gun, and demanded money from her. When Johnson was unable to access the register, appellant then forced the manager, Kimtoria Campbell, away from the front door and back to the cash register. When neither Johnson nor Campbell could access the safe or the register, Ford-Calhoun called out to appellant to abandon the robbery, and appellant and Ford-Calhoun escaped in a black Cadillac.

1. Appellant contends that the trial court erred in denying'his motion to sever counts related to the Dollar General robbery from those counts related to the attempted robbery of the Cato store, arguing that the offenses were not sufficiently similar. We disagree.

On appeal, we review the trial court’s ruling on a motion to sever under the abuse of discretion standard. It is well settled that a defendant has an absolute right to sever if multiple charges against him are joined solely because they are of the same or similar character. However, “offenses have not been joined solely because they are of the same or similar character when evidence of one offense can be admitted upon the trial of another, i.e., when they are so strikingly similar as to evidence a common motive, scheme or bent of mind.” When considering a motion to sever, the trial court “must consider the number of offenses charged, the complexity of the charges, and the complexity of the evidence and determine whether the jury will be able to fairly and intelligently parse the evidence and apply the law with regard to each charge.”

Instead of focusing on the similarities between the two incidents, appellant improperly focuses on the differences, including that appellant seemed to be more informed about the store’s procedures involving money in the Dollar General robbery than in the Cato robbery, that Ford-Calhoun ignored the Dollar General employees but spoke to the employees of Cato, and that appellant used harsher, more threatening language in the Dollar General incident. Here, although the crimes in the present case occurred at different times and different locations and involved different victims, they were connected by more than just their similar character. The charges against appellant clearly show a recurring pattern of conduct suggesting a common scheme or modus operandi. Victims of both crimes identified appellant from a photo lineup and accurately described him as a black male, slightly over six feet tall. Victims of both crimes also described his co-defendant, Ford-Calhoun, as a black woman with braids in her hair. Both crimes involved Ford-Calhoun and appellant working together as a team to rob a store. Both crimes involved Ford-Calhoun pretending to shop in each store prior to appellant entering the store and brandishing his gun and demanding money from the store’s employees before they both escaped in a black Cadillac. “Moreover, this case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense.” Under these circumstances, we find no abuse of discretion.

2. Appellant argues that the trial court erred in denying his motions for directed verdict on Count 3, the charge for aggravated assault against Rick Kurtz, and Count 6, the charge for the false imprisonment of Kimtoria Campbell.

A directed verdict is appropriate when “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty as to the entire offense or to some particular count or offense.” When reviewing a denial of a motion for a directed verdict, we apply the same test as when reviewing a challenge to the sufficiency of the evidence, i.e., “whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.” The jury’s verdict will be upheld as long as there is some competent evidence to support each fact necessary to make out the State’s case.

(a) Appellant argues, and the State agrees, that because of the specific language used in Count 3 of the indictment, there was insufficient evidence to convict him of aggravated assault against Kurtz. We agree.

Count 3 of the indictment charged appellant with aggravated assault because appellant “unlawfully made an assault upon the person of Rick Kurtz, with a gun, a deadly weapon, by pointing a gun at Rick Kurtz in a threatening manner,” The law is clear that where an indictment charges a defendant with committing an offense in a particular manner,

the proof must show it so, or there will be a variance. No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance.

As stated in Division 1, the evidence adduced at trial, when viewed in the light most favorable to the prosecution, showed that when Kurtz drove up to the Dollar General store, he noticed the manager in a confrontation with appellant. When Kurtz approached to check on the manager, appellant saw him and said “[t]urn around [and] I’ll blow your... head off.” Although Kurtz testified that he saw appellant holding a gun and that appellant verbally threatened him, he did not testify that the gun had been pointed at him. Because we agree that the State did not prove the act charged in Count 3, that appellant pointed a gun at Kurtz, we find that the trial court erred in denying appellant’s motion for a directed verdict and reverse appellant’s conviction on this charge.

(b) Appellant next contends that the evidence adduced at trial was insufficient to support his conviction for the false imprisonment of Kimtoria Campbell, and therefore the trial court erred in denying his motion for a directed verdict as to that count. We disagree and affirm.

A defendant can be convicted for false imprisonment when “in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.”

The testimony adduced at trial regarding the charge shows that Campbell, the manager of the Cato who was present during the robbery, began running toward the door of the store as soon as she understood that the store was being robbed, but stopped when she saw that Ford-Calhoun was “standing guard . . . five feet from the door.” Campbell testified that she did not feel free to leave because Ford-Calhoun “had her hand in her pocket. I didn’t know whether she had a gun or not.” Appellant, who had first demanded money from the employee at the cash register at gunpoint, then demanded that Campbell “get back up there” so that she could assist the other employee in opening the cash register. While Campbell and the other employee struggled to open the store’s safe, the other employee “kept pleading and begging [appellant] to let [the other employee] go to the back room to get the key, and he would not let her move.” We find this evidence sufficient to support the jury’s finding that appellant is guilty beyond a reasonable doubt of falsely imprisoning Campbell. Accordingly, the trial court did not err in denying appellant’s motion for a directed verdict as to the false imprisonment charge.

Decided November 28, 2012.

J. Scott Key, for appellant.

Tommy K. Floyd, District Attorney, Thomas L. Williams, Assistant District Attorney, for appellee.

3. Appellant contends that the trial court erred in expanding the manner by which the jury could convict appellant for aggravated assault on Kurtz beyond the method alleged in the indictment. Based upon our holding in Division 2 (a), we find this enumeration to be moot.

Judgment affirmed in part and reversed in part.

Miller, P. J., and Branch, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bryant v. State, 304 Ga. App. 456, 456 (696 SE2d 439) (2010).

        Bryant, supra at 459 (1).

        Green v. State, 291 Ga. 287, 289 (2) (728 SE2d 668) (2012)

       (Citation and punctuation omitted; emphasis omitted.) Id.

       (Citations and punctuation omitted.) Willis v. State, 316 Ga.App. 258, 262-263 (3) (728 SE2d 857) (2012).

        Bryant, supra at 459 (1).

       (Citations and punctuation omitted.) Boatright v. State, 308 Ga.App. 266, 274 (2) (707 SE2d 158) (2011).

       (Punctuation and footnote omitted.) Floyd v. State, 251 Ga.App. 346, 347 (1) (553 SE2d 658) (2001).

       (Footnote omitted.) Badie v. State, 317 Ga. App. 712 (1) (732 SE2d 553) (2012). See Jackson, supra.

        Floyd, supra.

       (Emphasis supplied.)

       (Punctuation and footnote omitted.) Floyd, supra at 348 (1). Accord Petty v. Smith, 279 Ga. 273, 277-278 (612 SE 2d 276) (2005) (defendant could not have been convicted for aggravated assault when indictment’s language specified that the assault was made “with a shotgun, a deadly weapon,” and the evidence showed defendant could have been convicted of aggravated assault for beating the victim or party to the crime, but was not).

       OCGA § 16-5-41 (a).

       See Taylor v. State, 318 Ga.App. 115 (1) (733 SE2d 415) (2012) (evidence was sufficient to support a false imprisonment conviction when, during the course of a robbery of a cell phone store, defendant told two customers to go to the hack of the store and lie down on the floor and forced employee of the store to give him money in the cash register and then go lie down).


text:
    A12A1017.
    STUART v. THE STATE.
    (734 SE2d 814)
   BARNES, Presiding Judge.

A jury convicted Zorie W. Stuart of rape, aggravated child molestation, and child molestation, and the trial court sentenced him to life in confinement. Stuart argues on appeal that the trial court erred in failing to instruct the jury that statutory rape is a lesser included offense of rape. For the reasons that follow, we affirm.

During the charge conference, the trial court reviewed each of Stuart’s requests to charge. In response to the court’s recitation of the requested charge “Lesser Offense, of Statutory Rape,” the State objected because the elements of proof differ for the two crimes. After the State made its argument, the trial court asked Stuart, “What do you say?” Stuart responded, “I have nothing to say. I believe that’s a correct statement of the law, that in statutory rape you do have to prove age. And you don’t in rape.” The trial court agreed with the State’s analysis, holding that statutory rape “could not be a lesser included offense [of rape] [b]ecause there is one element in statutory [rape] that is not in forcible rape.” The trial court stated that the jurors will “either find that there was force, or they [will] find that there was not force. If they [find] there was not force, then they will find him not guilty of rape,” and that it would not give the defendant’s charge related to “the lesser offense of statutory rape.” After the court completed its charge to the jury and asked for objections, Stuart responded, “No objections, Judge.”

On appeal, Stuart argues that the trial court erred in failing to instruct the jury that statutory rape is a lesser included charge of rape. “[U]nder OCGA § 17-8-58 (b), appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011) . Here, neither Stuart nor the State address the fact that, during the charge conference, Stuart affirmatively agreed with the State that the charge was unwarranted, and Stuart does not argue that the failure to charge on statutory rape was plain error, only that it was error.

Nonetheless, the appellate courts “will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing party specifically casts the alleged infirmity as ‘plain error,’ ” although failing to articulate how the alleged error satisfies the high standards required to establish plain error increases the likelihood that an appellate court will reject the claim. State v. Kelly, 290 Ga. at 32 (1), n. 2; White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012) (court reviews allegation of jury instruction error despite lack of objection, “provided the enumeration of error is properly enumerated and argued on appeal”).

In conducting a plain error review, we consider first whether the record establishes “an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant.” (Punctuation omitted.) State v. Kelly, 290 Ga. at 33 (2) (a). If so, we then consider whether the error was clear or obvious, whether it likely affected the outcome of the trial, and whether we should exercise our discretion to remedy the error. Id.

Here, the trial court did not err in failing to give the jury charge because “[statutory rape is not a lesser included offense of forcible rape.” Mangrum v. State, 285 Ga. 676, 680 (5) (681 SE2d 130) (2009). A conviction of statutory rape requires proof that the victim was under the age of consent, while a conviction of rape requires proof of force, regardless of the victim’s age. Grayer v. State, 176 Ga.App. 248, 249 (335 SE2d 483) (1985). Thus, the record does not establish an error or defect, and we need not decide whether Stuart’s actions at trial constituted an intentional relinquishment of a right, which would waive review, or merely a forfeiture of the right, which would not. See Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012); Cheddersingh v. State, 290 Ga. 680, 684 (2) (724 SE2d 366) (2012).

Stuart cites Hill v. State, 295 Ga.App. 360 (671 SE2d 853) (2008) for the proposition that statutory rape is a lesser included offense of forcible rape. Hill, however, was incorrectly decided and must be overruled. In Hill, this court affirmed a statutory rape conviction after the trial court charged the jury over objection that statutory rape was a lesser included offense of rape. Id. at 363-364 (2). We held that the factual allegation that the victim was 16, which was included in the indictment in a separate child molestation count, put Hill on sufficient notice that he could be convicted of statutory rape, and further held that the actual evidence presented at trial established the offense. Id. This ruling is at odds with the Supreme Court of Georgia’s holding in Mangrum, 285 Ga. at 680 (5), and is therefore overruled.

The ruling in Hill also conflicts with the Supreme Court of Georgia’s holding in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006), in which the court disapproved the “actual evidence” test for determining when one offense is included in another under OCGA § 16-1-6 (1), and adopted the “required evidence” test. Under the “required evidence” test, the question is not whether the evidence actually presented at trial establishes the elements of the lesser crime, but whether each offense requires proof of a fact which the other does not. Id. at 215-217.

As the Drinkard court noted, the crime of rape requires that the State prove that the defendant had carnal knowledge of the victim, forcibly and against her will. Id. at 213. Proof of force is not required, however, to prove the offense of statutory rape. Hightower v. State, 256 Ga.App. 793, 796-797 (2) (570 SE2d 22) (2002). And because the crime of statutory rape requires the State to prove that a victim is under the age of 16 and not the defendant’s spouse in addition to sexual intercourse, statutory rape requires proof of additional facts, not the same or less than all the facts, required to prove rape. Drinkard, 281 Ga. at 213. Accordingly, the Supreme Court concluded that Drinkard’s attorney was not ineffective for failing to argue that the two offenses should merge. Id. at 217.

Although decided two years after Drinkard, the Hill case incorrectly applied the actual evidence test to determine that the trial court did not err in charging the jury that it could find Hill, who had been charged with rape, guilty of the lesser included offense of statutory rape even if the required evidence test was not met. Hill, 295 Ga. App. at 363 (1). The Hill court found that

[e]ven if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well.

(Citation and footnote omitted; emphasis in original.) Hill, 295 Ga. App. at 363 (1). Thus, in Hill, we improperly applied a test specifically rejected by the Supreme Court in Drinkard to determine whether statutory rape was a lesser included offense of the crime of rape. For this reason also, Hill is overruled.

To the extent that King v. State, 295 Ga. App. 865, 867 (2) (673 SE2d 329) (2009) adopts Hill’s proposition that a defendant may be convicted of a lesser offense if the facts alleged throughout the indictment and the evidence presented at trial establish the elements necessary to convict on the lesser offense, it is also overruled.

Finally, in Dinkler v. State, 305 Ga. App. 444, 448 (1), n. 2 (699 SE2d 541) (2010), this Court held incorrectly that the “required evidence” test does not apply when considering the propriety of giving a jury charge on a lesser included offense, only when considering whether multiple convictions are precluded, citing Stepp v. State, 286 Ga. 556 (690 SE2d 161) (2010). But this conclusion is based on the misreading of a Drinkard footnote and of Stepp. The court in Drinkard clarified in a footnote that

[t]he “required evidence” test applies strictly within the context of determining whether multiple convictions are precluded because one of the crimes was “established by proof of the same or less than all the facts” that were required to establish the other crime under OCGA § 16-1-6 (1).

Drinkard, 281 Ga. at 216, n. 32. Thus, the Court noted, the test does not apply in the context of Georgia’s “additional statutory provisions concerning prohibitions against multiple convictions for closely related offenses that are not at issue here.” Id. Thus, the “required evidence” test is not applied when considering

OCGA § 16-1-6 (1) (one crime is included in the other where it is established by “proof of... a less culpable mental state”); OCGA § 16-1-6 (2) (one crime is included in the other where it differs only in that it involves a “less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability^’); and OCGA § 16-1-7 (a) (2) (precluding multiple convictions where one crime differs from another “only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct”).

Id. In this footnote, therefore, the Supreme Court was merely distinguishing the portion of OCGA § 16-1-6 (l)* 12* regarding crimes established by proof of the same or less than all the facts from other provisions of Georgia law, including the portion of OCGA § 16-1-6 (1) regarding crimes established by a less culpable mental state. This conclusion is consistent with the Stepp case, which found that the “required evidence” test does not apply when considering crimes requiring proof of different levels of culpability. Stepp, 286 Ga. at 556 (ordinary care versus gross deviation from the standard of care).

Decided November 28, 2012.

Sharon L. Hopkins, for appellant.

Penny A. Penn, District Attorney, Jennifer L. Scalia, Assistant District Attorney, for appellee.

The footnote was not intended to otherwise limit the application of the “required evidence” test in considering whether one crime is “established by proof of the same or less than all the facts” of the other, and does not preclude the application of the test when considering whether jury charges are appropriate. Therefore, Dinkier is overruled to the extent it holds otherwise.

Accordingly, as the trial court did not err in declining to charge the jury on the statutory rape, we affirm the convictions.

Judgment affirmed.

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

       Stuart’s requests to charge consisted of a one-page list of eight pattern charges described by their section and title, which included charges on “Lesser Offense,” “Statutory Rape,” and “Statutory Rape; Corroboration of Victim.”

       We note that Hill even cited Drinkard for another proposition of law. Hill, 295 Ga.App. at 364 (3).

       The Hill opinion was quoting this Court’s case in Stulb v. State, 279 Ga.App. 547, 549 (1) (631 SE2d 765) (2006), a case decided prior to Drinkard. The Stulb case, in turn, relied upon a line of cases that emanated from Pryor v. State, 238 Ga. 698 (234 SE2d 918) (1977). Drinkard, however, specifically overruled Pryor and its application of the “actual evidence” test. Drinkard, 281 Ga. at 217, n. 38.

       OCGA § 16-1-6 provides:
      An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when:
      (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or
      (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.


author: McFadden, Judge.

text:
    A12A1052.
    SENTRY SELECT INSURANCE COMPANY et al. v. TREADWELL.
    (734 SE2d 818)
   McFadden, Judge.

This is an appeal from an order striking the defendants’ answer for spoliation of evidence. There was spoliation. But the trial court’s findings as to spoliation of certain categories of evidence are not supported by the record. Accordingly, we reverse the order striking the answer and remand the case for the trial court to determine what, if any, sanctions are appropriate.

On the evening of December 9, 2006, Martin Treadwell, Jr., was towing a car behind his pickup truck as he drove on Interstate 16. His wife Essie Treadwell was a passenger in the pickup truck. Tony Martin, who was driving a tractor-trailer for Premier Transportation, ran into the towed car from the rear. On November 17, 2008, Essie Treadwell filed a lawsuit against Martin, J.H.O.C., Inc. d/b/a Premier Transportation, and Sentry Select Insurance Company, alleging negligence and seeking to recover damages for personal injuries. Treadwell subsequently moved to strike the defendants’ answer due to alleged spoliation of the following evidence: Martin’s logbooks, data from a GeoLogic system on his vehicle and data from the Electronic Control Module (ECM) on his vehicle. On November 9, 2011, the trial court issued an order granting the motion and striking the answer, finding as matters of fact that the defendants had “destroyed the driver’s trip documents, including log books, ECM data, Geo[L]ogic data and results from the investigation.” After we granted their application for interlocutory review, Sentry Select, Premier and Martin filed this appeal.

1. Spoliation.

“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Such conduct creates the presumption that the evidence would have been harmful to the spoliator.” (Citations and punctuation omitted.) Baxley v. Hakiel Industries, 282 Ga. 312, 313 (647 SE2d 29) (2007). The appellants contend that the trial court erred in finding spoliation because there is no evidence that they were aware of any contemplated litigation. The contention is without merit.

The record shows that shortly after the collision, the Treadwells’ attorney sent a letter to Sentry, stating that he was representing them in the claim involving Martin and Premier, that the Treadwells were continuing medical treatment for injuries sustained in the collision, and that once they reached their maximum medical improvement he would “be in touch . . . regarding settlement of this claim.” The attorney also requested to be provided with certain documentation in regard to the claim. Several days later, Sentry sent a reply letter, noting that it was the liability insurer for Premier, that it was not admitting liability, that its investigation revealed its insured was not responsible for the accident, and that in the event of any settlement of the claim it would need the attorney’s tax identification number.

Tim Pilato, Premier’s executive vice president, deposed that in his 28 years in the trucking industry he has been involved in a lot of litigation and that every collision that occurs on the highway “does involve a claim.” Pilato testified that, following Premier’s typical protocol, an adjuster was sent to the scene to investigate the accident. Pilato also contacted Paul Kostelac, Premier’s retained risk management consultant, to help with the investigation of the collision. Among other things, Kostelac deposed that, based on information he had received about the Treadwells, “we knew we had a very adversarial claimant initially.”

It is true that notice of liability is not the same as notice of litigation, and “the simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation. [Cits.]” Kitchens v. Brusman, 303 Ga.App. 703, 707 (1) (a) (694 SE2d 667) (2010). But in this case there is more than the simple fact that Essie Treadwell was injured in the accident. Rather, as recounted above, there is ample evidence showing that shortly after the collision occurred the appellants were aware of contemplated litigation based on the letter from the Treadwells’ attorney,.their own investigation, their knowledge that every such highway collision results in claims, and their information that these particular claimants were very adversarial. See Baxley, supra at 313 (defendant took steps to investigate accident yet failed to preserve recording of pertinent events); Kitchens, supra at 707-708 (1) (a) (defendants put on notice of contemplated litigation where, among other things, lawyer was investigating and asking for records); Wal-Mart Stores v. Lee, 290 Ga. App. 541, 544-546 (1) (659 SE2d 905) (2008) (receipt of demand letter triggered duty to preserve evidence such that subsequent destruction of videotape constituted spoliation). Accordingly, the appellants have shown no error in the trial court’s finding that some spoliation occurred.

2. The evidence in question.

The trial court found that the defendants had destroyed Martin’s logbooks, GeoLogic data, ECM data, and the results of an investigation. “In determining whether to impose sanctions for evidence spoliation, trial courts routinely and necessarily make factual findings about whether spoliation occurred... [and] the importance of the compromised evidence.” (Citation omitted.) Bouve & Mohr v. Banks, 274 Ga. App. 758, 762 (1) (618 SE2d 650) (2005). We will uphold such findings of discovery abuse if there is any evidence to support them. Id. In this case, while there is evidence to support the trial court’s factual findings that the appellants destroyed the logbooks and GeoLogic data, Treadwell has pointed to no evidence supporting the findings as to spoliation of the ECM data and the investigation results.

(a) Logbooks.

As an initial matter, we note that although the appellants have made assertions in their statement of facts about what the logbooks would have shown, they have not enumerated that the trial court erred in finding spoliation of the driver logbooks. Indeed, the appellants admit that they had possession of the logbooks after the accident, maintained control of them for over a year, and then purged them after arbitration proceedings between their property damage insurer, who is not Sentry, and Martin Treadwell’s insurer. Accordingly, appellants have shown no error in the trial court’s finding of spoliation as to the logbooks.

(b) GeoLogic.

Appellants argue that the trial court erred in finding that the GeoLogic data was destroyed, that such information did not exist. The argument is contradicted by the record.

During his deposition, Pilato testified that the GeoLogic is an electronic, satellite-based system that Premier has on its trucks for communication; that at the time of the collision Premier could track the location of its drivers through the GeoLogic system; that at the time of the collision, the GeoLogic was used for dispatching trucks; that those dispatch records were maintained in a computer database; and that those records were purged from the system. Moreover, risk management consultant Kostelac deposed that he reviewed the GeoLogic printout from that time frame with tractor-trailer driver Martin.

Thus, contrary to the appellants’ claim, there is evidence showing that the GeoLogic data existed and has been destroyed. And since the trial court’s findings of fact were supported by the evidence, we will uphold them. See Bouve & Mohr, supra (affirming trial court’s factual findings in spoliation case).

(c) ECM data.

It is undisputed that the appellants downloaded information from the ECM and provided it to Treadwell. But Treadwell asserts that the information was obtained using software which was only capable of retrieving the vehicle’s engine parameters, and not the “hard brake” data that could have been captured with the correct software and which would have shown information such as the speed of the truck before impact and when the brakes were applied. However, Treadwell has pointed to no evidence in the record supporting her assertion that such data could have been retrieved from the ECM on Martin’s vehicle. Indeed, Treadwell concedes that her expert witness gave no testimony about the ECM. Conversely, although the appellants’ expert did not have knowledge about the particular software used for the ECM download, he explained that the type of “hard brake” information alleged by Treadwell to be available was not contained on the ECM. He deposed, “I know that the data that’s contained in this engine, you don’t get hard br[ake] information by downloading the ECM. It only gives you the parameters of where the engine is set. At that time, not all ECMs provided that data.”

It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party. See generally OCGA § 24-4-22; Jones v. Krystal Co., 231 Ga. App. 102, 107 (f) (498 SE2d 565) (1998) (presumption arising from spoliation of evidence occurs “only when the party has evidence within its control”). Because Treadwell has cited no evidence showing that the allegedly destroyed “hard brake” information was ever available, whereas the appellants have provided expert testimony showing that such data was not contained on this ECM, the trial court erred in finding that such ECM data was destroyed by appellants.

(d) Investigation results.

Treadwell’s motion did not mention the destruction of “results from the investigation” as a ground for its spoliation claim, and the trial court’s order is silent as to precisely what it was referring to when it found that the appellants had destroyed “results from the investigation.” Treadwell identifies no evidence supporting this finding by the trial court, and instead admits that the trial court failed to expound on what it meant by “results from the investigation.” She then speculates about what the trial court was referring to, guessing that perhaps it meant information collected by Kostelac or an adjuster’s file. Given the lack of specificity in the trial court’s order and the failure to identify evidence showing that investigation results were destroyed, this finding by the trial court was erroneous.

3. Sanctions.

“[T]rial courts have the power to control the behavior of litigants before them to maintain the integrity of the judicial process, and this power includes the discretion to fashion appropriate remedies for the spoliation of evidence.” (Citation omitted.) Wal-Mart, supra at 544 (1).

To remedy the prejudice resulting from evidence spoliation, a trial court is authorized to craft a solution that fits the facts; the court may (1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence. This is not an exhaustive list of sanctions a trial court may impose; rather, the trial court has wide latitude to fashion sanctions on a case-by-case basis, considering what is appropriate and fair under the circumstances.

(Citation and punctuation omitted.) Kitchens, supra at 709 (1) (c). Moreover, on appeal we “will not disturb a trial court’s imposition of sanctions for evidence spoliation unless the trial court abused its discretion.” Wal-Mart, supra at 546 (1).

In this case, as recounted above, the trial court was authorized to impose appropriate sanctions for spoliation of the logbooks and GeoLogic data. However, the trial court also premised its sanction of striking the answer on the improper findings that the appellants had destroyed the alleged ECM data and the unidentified results of some investigation. Because a trial court must fashion a remedy appropriate to its findings, and here the trial court relied in significant part on erroneous findings to impose the most extreme sanction of striking the appellants’ answer, we conclude that the trial court erred. See generally Chicago Hardware &c. v. Letterman, 236 Ga. App. 21, 25 (2), n. 5 (510 SE2d 875) (1999) (most severe sanctions should be reserved for cases where a party has maliciously destroyed relevant evidence). While such a severe sanction might indeed be authorized, we cannot uphold it at this juncture based on the erroneous findings in the trial court’s order. Accordingly, we reverse the judgment and “remand for the trial court to consider the remedy to be employed under the circumstances and applicable law.” Kitchens, supra at 710 (1); Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539 (469 SE2d 783) (1996).

Decided November 28, 2012.

Carlock, Copeland & Stair, Renee Y. Little, for appellant.

Fried, Rogers & Goldberg, Brian D. Rogers, Lester M. Miller, for appellee.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Adams, J., concur.