text:
    A11A0696.
    A11A0697.
    LEGACY COMMUNITIES GROUP, INC. et al. v. BRANCH BANKING & TRUST COMPANY. BRANCH BANKING & TRUST COMPANY v. TAMPA INVESTMENT GROUP, INC. et al.
    (713 SE2d 670)
   Ellington, Chief Judge.

In this litigation pending in the Superior Court of Fulton County, Branch Banking & Trust Company asserts claims, inter alia, for the breach of a series of promissory notes against the borrowers and against parties that guaranteed the notes, which are all related corporate entities. The parties filed cross-motions for partial summary judgment. After a hearing, the trial court entered partial summary judgment in favor of the bank on certain issues and in favor of the borrowers and guarantors on others, as detailed below. Both sides appeal part of the trial court’s ruling. For the reasons explained below, we affirm in part and reverse in part.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

At issue are 16 promissory notes executed between 2005 and 2008 by the bank as the lender and by either Legacy Investment Group, LLC (“Legacy Investment”) or Tampa Investment Group, Inc. (“Tampa Investment”) as the borrower for the development of residential subdivisions in Georgia. The notes were secured by deeds to secure debt and were guaranteed by either two or three of the following entities: Legacy Communities, LLC (“Legacy Communities”), Tampa Financial Company, Inc. (“Tampa Financial”), Legacy Communities Group, LLC (“Legacy Group”), SRB Investment Services, LLLP (“SRB Investment”), and SFB Investment, LP (“SFB Investment”). After the borrowers defaulted on the notes, the bank provided notice of foreclosure as to nine of the notes and, at foreclosure auctions conducted on June 2, 2009, was the sole and winning bidder. Three days later, the bank notified the borrower that it rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated. On June 22, 2009, the bank filed the instant action against the borrowers and guarantors. Because of common issues on appeal, we consider the notes in the following related groups:

(A) Three notes executed in 2005, 2006, or 2007, either by Legacy Investment or by Tampa Investment as the borrower and guaranteed by Tampa Financial and either by Legacy Communities or by Legacy Group, which were foreclosed upon and the properties sold at auction on June 2, 2009.
(B) Five notes executed in 2005, 2006, or 2007, either by Legacy Investment or by Tampa Investment as the borrower and guaranteed by Tampa Financial and by either Legacy Communities or by Legacy Group, which were not the subject of foreclosure proceedings.
(C) Six notes executed in 2008, by Tampa Investment as the borrower and guaranteed by Legacy Group, SRB Investment, and SFB Investment (the “2008 guarantors”), which were foreclosed upon and the properties sold at auction on June 2, 2009.
(D) Two notes executed in 2008, by Tampa Investment as the borrower and guaranteed by the 2008 guarantors, which were not the subject of foreclosure proceedings.

In its complaint, the bank asserted claims against the borrower and against the guarantors for amounts due under each of the notes.

After a hearing on the parties’ motions for summary judgment, the trial court determined that, because the bank failed to seek confirmation of the foreclosure sales within 30 days after the auctions, the bank’s claims as to the Group A and Group C notes were barred as improper deficiency actions under OCGA § 44-14-161 (a). Accordingly, the trial court granted the borrowers’ and guarantors’ motions for partial summary judgment and denied the bank’s motion as to those nine notes. In Case No. A11A0697, the bank appeals, and, for the reasons explained in Division 1, infra, we reverse in part.

In addition, the trial court determined that guaranties executed in 2008 by the 2008 guarantors in connection with the Group C and Group D notes (collectively, the “2008 notes”) were effective under the Statute of Frauds to make the 2008 guarantors liable as additional guarantors of the Group A and Group B notes (collectively, the “pre-2008 notes”). Accordingly, the trial court granted the bank’s motion for partial summary judgment and denied the 2008 guarantors’ motion on this issue. Because the trial court otherwise granted partial summary judgment in favor of the borrowers and guarantors on the three pre-2008 notes as to which the bank offered the winning bid at the foreclosure auctions (the Group A notes), the trial court granted judgment to the bank only as to the five pre-2008 notes as to which the bank had not initiated foreclosure proceedings (the Group B notes). In Case No. A11A0696, the 2008 guarantors appeal, and, for the reasons explained in Division 2, infra, we affirm in part.

Case No. A11A0697

1. The bank contends that, although it offered the winning bid at auction as to the Group A and Group C notes, it abandoned foreclosure proceedings before consummating any foreclosure sale. As a result, the bank contends, the trial court erred in ruling that the bank’s claims as to those notes were barred as improper deficiency actions by the bank’s failure timely to seek confirmation under OCGA § 44-14-161 (a). We agree.

When a borrower gives a lender a deed to secure debt, the borrower grants and conveys outright legal title in the subject real property to the lender (the grantee) and takes “a bond for title back to the grantor upon the payment of the debt.” OCGA § 44-14-60; see also West Lumber Co. v. Schnuck, 204 Ga. 827, 835 (1) (51 SE2d 644) (1949). Thus, the borrower retains the right to regain or redeem legal title by payment of the secured indebtedness; the borrower also retains the right of possession. West Lumber Co. u. Schnuck, 204 Ga. at 835 (1); C & S Bank v. Realty Savings &c. Co., 167 Ga. 170, 171-172 (1) (144 SE 893) (1928); Boyer v. Whiddon, 264 Ga. App. 137, 138 (589 SE2d 709) (2003). The borrower’s equitable estate or title may be assigned or subjected to payment of the borrower’s other debts. C & S Bank v. Realty Savings &c. Co., 167 Ga. at 171-172 (1). A deed to secure debt generally gives the lender a power of attorney authorizing it to sell the property if the borrower defaults on the secured debt, applying the proceeds first to the satisfaction of the debt. Daniel F. Hinkel, 2 Pindar’s Ga. Real Estate Law and Procedure, § 21-2 (6th ed., updated 2011). A properly conducted sale on foreclosure under power transfers the borrower’s right of possession and its equitable estate to the foreclosure sale purchaser. Cummings v. Johnson, 218 Ga. 559, 561 (3) (129 SE2d 762) (1963).

When a person who is conducting a nonjudicial foreclosure sale pursuant to a power of sale in a security deed accepts a bid, an oral contract is created. Moody v. Mendenhall, 238 Ga. 689, 690, 692-693 (6) (234 SE2d 905) (1977); James v. Safari Enterprises, 244 Ga. App. 813, 814-815 (537 SE2d 103) (2000). Because such a contract conveys an interest in land, it is subject to the Statute of Frauds unless it falls into one of the recognized exceptions. James v. Safari Enterprises, 244 Ga. App. at 814-815; OCGA § 13-5-30 (4); see OCGA §§ 13-5-31; 23-2-131. In this case, the bank, acting in its capacity as the borrower’s attorney-in-fact, accepted the bids it made at the foreclosure auctions as to the Group A and Group C notes, but it did not in that capacity execute a deed under power or any other document conveying the borrower’s interest to itself. In addition, the bank, acting in its capacity as the creditor on the promissory notes, did not execute any writing showing that it had applied any foreclosure proceeds to eliminate or reduce the borrower’s obligations under the secured promissory notes. Rather, three days after the auctions, the bank, as the creditor and as the winning bidder, notified the borrower that it rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated. The borrower was not harmed by the aborted foreclosure proceedings but, rather, was left in exactly the same position as it was in before the auctions. Although the bank conducted and bid at foreclosure auctions of the real property that secured the Group A and Group C notes, we conclude that, under the circumstances, the conveyance which defines a nonjudicial foreclosure, that is, the transfer of the borrower’s right of possession and its equity of redemption to the bank as the foreclosure sale purchaser, never occurred. Because, by definition, the confirmation procedure has no application where there has been no foreclosure sale, OCGA § 44-14-161 (a), the trial court erred in ruling that the bank’s claims were barred as to the Group A and Group C notes by the bank’s failure to seek confirmation after the June 2, 2009 foreclosure auctions.

Case No. A11A0696

2. The 2008 guarantors contend that the 2008 guaranties did not identify the pre-2008 notes with the specificity required by the Statute of Frauds. As a result, they contend, any obligation they undertook in the 2008 guaranties with regard to the pre-2008 notes is unenforceable, and, therefore, the trial court erred in granting the bank’s motion for partial summary judgment and in denying their motion on this issue.

The 2008 guaranties identified the bank as the promisee and Legacy Group, SRB Investment, and SFB Investment as the guarantors and provided, in pertinent part, as follows:

1. Bank has previously made numerous loans (collectively the “Prior Loan”) to various borrower entities owned (directly or indirectly) or controlled by Guarantor. Such borrower entities (individually “Borrower” and collectively “Borrowers”) include those entities whose names are set forth on Exhibit “A” attached hereto and made a part hereof, but shall also include other entities whose names are not on Exhibit “A”, and for purposes of this Guaranty Agreement, which are owned or controlled (directly or indirectly) by Guarantor (“controlled” as used herein meaning direct or indirect ownership of more than 50% of the ownership interests of such entity) and which, as of the date hereof, have outstanding indebtedness or other obligations or liability under the Prior Loan owed to Bank.
2. Each of the Prior Loans made to any Borrower was requested by, and directly benefits Guarantor, and Bank would not have been willing to make any Prior Loan to any Borrower without the full and unconditional guaranty of payment by Guarantor to Bank of all liability and indebtedness under each Prior Loan. Both Bank and Guarantor intended and still intend that Guarantor voluntarily, and for a valid consideration, has previously guaranteed each of the Prior Loans made by Bank to each and every Borrower. To the extent no such prior guaranty instrument was signed, or was improperly signed, it was an oversight and is intended by both Bank and Guarantor to be corrected hereby.
3. Based on certain review of documentation by Bank, Bank has requested, and Guarantor has agreed to reaffirm and ratify Guarantor’s guaranty of each of the Prior Loans in favor of Bank, and, to the extent of any prior legal deficiency in any prior guaranty instrument, including the absence of any such guaranty, Guarantor hereby guarantees all indebtedness under any such Prior Loan.
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties hereto, Guarantor agrees as follows:
Guarantor hereby unconditionally guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times hereafter, of: (a) all indebtedness of any Borrower owed to Bank under any Prior Loan, which indebtedness includes the full principal amount, including any future advances under any Prior Loan, . . . plus the interest due on such Prior Loans to the extent provided for in any Prior Loans . . . ; (b) notwithstanding anything to the contrary herein, in addition to Guarantor guaranteeing all indebtedness under any and all Prior Loan, Guarantor hereby absolutely and unconditionally guarantees to Bank and its successors and assigns the due and punctual payment of any and all notes, drafts, debts, obligations and liabilities, primary or secondary (whether by way of endorsement or otherwise), of Borrowers, at any time, now or hereafter, incurred with or held by Bank, together with interest, as and when the same become due and payable, whether by acceleration or otherwise, in accordance with the terms of any such notes, drafts, debts, obligations or liabilities or agreements evidencing any such indebtedness, obligation or liability including all renewal, extensions and modifications thereof!;] . . . and (f) all other indebtedness now or hereafter owed by any Borrower to the Bank, however incurred.
Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty Agreement is fully performed, Guarantor’s obligations hereunder shall not be released, in whole or in part, by any action or thing which might, but for this provision of this Guaranty Agreement, be deemed a legal or equitable discharge of a surety or guarantor, or by reasons of any waiver, extension, modification, forbearance or delay or other at or omission on the part of the Bank, or its failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Bank, ... or by reason of any further dealings among the Borrower, the Bank and any other guarantor, surety or other party, and Guarantor hereby expressly waives and surrenders any defense to the performance of the undertakings of Guarantor hereunder based upon any of the foregoing acts, omissions, things, agreements or waivers; it being the purpose and intent of the parties hereto that the covenants, agreements and all undertakings hereunder be absolute, unconditional and irrevocable under any and all circumstances.

As the 2008 guarantors contend, the 2008 guaranties failed to identify the pre-2008 notes with the specificity required for a promise to answer for another’s debt to be binding on the guarantor under the Statute of Frauds because there is nothing in the guaranties or any other documents referenced in them from which the amounts promised to be paid and the date the debts became due could be determined. A contract that is subject to the Statute of Frauds but fails to satisfy its requirements may nevertheless be enforced, however, where there has been performance of the contract by one party that is accepted by the other or where there has been partial performance by one party such that it would result in a fraud on that party if the court did not compel performance. OCGA § 13-5-31 (2), (3). Enforcing an agreement, despite its failure to satisfy the Statute of Frauds, “is allowed upon the principle of estoppel.” (Citations omitted.) Nowell v. Mayor &c. of Monroe, 177 Ga. 648, 652 (1) (171 SE 136) (1933). See also OCGA § 13-3-44 (a) (“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”). It is incumbent upon the party seeking to enforce such an agreement to show “mutuality of action or its equitable equivalent^] ” that is, to show both that it performed one or more acts “in pursuance of and on the faith of the contract” and that its partial performance was accepted by the other party in accordance with the agreement. (Citations omitted.) Nowell v. Mayor &c. of Monroe, 177 Ga. at 652-653 (1). A contract “will be taken out of the operation of the [Sjtatute of [F]rauds whenever one party to the contract performs some act essential to the contract that results in loss or injury to him and in benefit to the other party.” (Citation omitted.) Bagwell v. Milam, 9 Ga. App. 315, 319 (4) (71 SE 684) (1911).

In this case, the express terms of the 2008 guaranties, extensively quoted above, unequivocally establish that, when the 2008 guarantors executed those documents, several corporate entities which the guarantors owned or controlled, including Tampa Investment (which was specifically listed in Exhibit A to the guaranties), owed the bank money under prior loans; that the 2008 guarantors executed the 2008 guaranties with the express purpose of inducing the bank to extend additional credit to Tampa Investment; and that the 2008 guarantors agreed to a condition imposed by the bank for such additional credit, specifically, that the 2008 guarantors also guarantee the pre-existing debts of Tampa Investment and other corporate entities the 2008 guarantors owned or controlled. Further, it is undisputed that the bank performed its obligations under the 2008 guaranties when it extended Tampa Investment credit pursuant to the 2008 notes. Thus, the bank performed an act essential to the contract that resulted in a detriment to it and in a benefit to the guarantors. The bank having performed as agreed, and the 2008 guarantors having thus enjoyed the benefit of their bargain, the guarantors are estopped from asserting a Statute of Frauds defense to the enforcement of the guaranties. L. Henry Enterprises v. Verifone, Inc., 273 Ga. App. 195, 198 (2) (614 SE2d 841) (2005) (Where a guaranty misnamed the principal debtor, but where the circumstances showed that, if the guarantor did not intend to guarantee the note the lender sued upon, then the guarantor perpetrated a fraud in executing the guaranty, the guarantor was estopped from asserting the Statute of Frauds defense to escape liability on the guaranty agreement.); Murray v. Pratt-Dudley Builders Supply Co., 176 Ga. App. 225, 226-227 (335 SE2d 443) (1985) (Although a guaranty omitted the name of the plaintiff creditor as the promisee, the defendant guarantor was estopped from asserting a Statute of Frauds defense where the guarantor freely admitted that he signed a letter of guaranty in favor of the creditor, that he intended to guarantee the debts of his corporation, and that his corporation received goods from the creditor, and, therefore, the harm sought to be prevented by the Statute of Frauds did not exist.). Consequently, the trial court did not err in granting the bank’s motion for partial summary judgment on this issue.

Decided July 1, 2011

Fellows & LaBriola, Steven M. Kushner, Eugenia W. Iredale, Chilivis, Cochran, Larkins & Sever, John K. Larkins, for appellants.

Greenberg Traurig, Jennifer B. Moore, Mark G. Trigg, Lee B. Hart, for appellee.

In summary, we hold as follows:

The bank’s claims on the Group A notes are not barred as improper deficiency actions by the bank’s failure to seek confirmation within 30 days after the June 2, 2009 foreclosure auctions. Furthermore, the bank’s claims against the 2008 guarantors on the Group A notes are not barred under the Statute of Frauds.

The bank’s claims on the Group B notes against the 2008 guarantors are likewise not barred under the Statute of Frauds.

The bank’s claims on the Group C notes are not barred as improper deficiency actions by the bank’s failure to seek confirmation within 30 days after the June 2, 2009 foreclosure auctions.

The bank’s claims on the Group D notes are not barred under either theory.

Judgment affirmed in part and reversed in part.

Miller, P. J., and Doyle, J., concur.

       Note No. 25.

       Note Nos. 534 and 536.

       Note Nos. 25 arid 534.

       Note No. 536.

       Note Nos. 26 and 23/28.

       Note Nos. 533, 535, and 537/538.

       Note Nos. 26, 23/28, and 533.

       Note Nos. 535 and 537/538.

       Note Nos. 546. 550. 551. 552. 553. and 556.

       Note Nos. 547 and 548.

       When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
      OCGA § 44-14-161 (a).

       See generally Daniel F. Hinkel, 2 Pindar’s Ga. Real Estate Law and Procedure, §§ 21-13, 21-14, 21-40, 21-49 (6th ed., updated 2011).

       See OCGA § 44-14-160 et seq. (foreclosure); see generally Daniel F. Hinkel, 2 Pindar’s Ga. Real Estate Law and Procedure, § 21-89 (6th ed., updated 2011); Frank S. Alexander, Ga. Real Estate Finance and Foreclosure Law, §§ 8:1, 8:9 (2010-2011 ed.).

       OCGA § 13-5-30 (4) provides that, to make “|a]ny contract for sale of lands, or any interest in, or concerning lands” binding on the promisor, “the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him[.]”

       OCGA § 13-5-31 provides:
      The provisions of [OCGA §] 13-5-30 do not extend to the following cases:
      (1) When the contract has been fully executed;
      (2) Where there has been performance on one side, accepted by the other in accordance with the contract;
      (3) Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.

       OCGA § 23-2-131 provides:
      (a) The specific performance of a parol contract as to land shall be decreed if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandoned he could not be restored to his former position.
      (b) Full payment alone accepted by the vendor, or partial payment accompanied with possession, or possession alone with valuable improvements, if clearly proved in each case to have been done with reference to the parol contract, shall be sufficient part performance to justify a decree.
      See generally Daniel F. Hinkel, 2 Pindar’s Ga. Real Estate Law and Procedure, § 21-80 (6th ed., updated 2011); Frank S. Alexander, Ga. Real Estate Finance and Foreclosure Law, § 8:5 (2010-2011 ed.).

       As the guarantors contend, the bank already had title to the properties pursuant to the deeds to secure debt, and such a conveyance of the borrower’s equitable interest, therefore, would have resulted in a merger of the whole estate in the bank. See OCGA § 44-6-2 (“If two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged into the greater.”).

       We note that some federal courts have held that, under Georgia law, a borrower is divested of its equitable right of redemption at the moment that the creditor as the borrower’s attorney-in-fact accepts the foreclosure sale purchaser’s high bid. See, e.g., Sanders v. AmSouth Mtg. Co. (In the Matter of Sanders), 108 B.R. 847, 849-850 (Bankr. S.D. Ga. 1988);
        Pearson v. Fleet Finance Center (In the Matter of Pearson), 75 B.R. 254 (Bankr. N.D. Ga. 1985). In those cases, a borrower, after a foreclosure auction, attempted to cure a default and reinstate a mortgage and, thereby, to defeat the foreclosure purchaser’s right to have the sale fully consummated. See also Carrington v. Citizens Bank of Waynesboro, 144 Ga. 52, 53 (4) (85 SE 1027) (1915) (“Where a sale of land is made under a power contained in a security deed, and by permission of the grantor contained in the deed the grantee purchases the land at such sale, the grantor can not defeat the purchaser’s right to have the sale fully consummated, by tender of the amount of his indebtedness to the grantee before the actual execution of the deed pursuant to the terms of the sale.”). These cases are inapposite here, however, where the borrower does not seek to exercise its equitable right of redemption by paying the indebtedness in full or even to cure its default and resume paying as agreed. See Fed. Deposit Ins. Corp. v. Dye, 642 F2d 837 (5th Cir. Unit B 1981) (“Where the bidder [at a foreclosure auction] and [the] creditor are the same entity, there must be an objective standard to determine when or if the transfer [of the borrower’s interest] has occurred.” The creditor’s winning bid at auction, created only an oral contract to buy and sell. And, where the creditor had not thereafter marked the notes “paid in full” or transferred any foreclosure deeds, no foreclosure sale had occurred, and the creditor was entitled to pursue a suit on the notes.); Chase Home Finance v. Geiger (In the Matter of Geiger), 340 B.R. 422 (Bankr. M.D. Ga. 2006) (accord); Leggett v. Morgan (In the Matter of Morgan), 115 B.R. 399 (Bankr. M.D. Ga. 1990) (Although no foreclosure deed was executed, the borrower lost his equitable right of redemption when the foreclosure sale purchaser tendered the amount bid.). Similarly, the cases cited by the borrowers and the guarantors for the holding that a buyer at a foreclosure sale holds title unless and until the foreclosure is properly set aside do not control the outcome in a case such as this, where the foreclosure sale was not completed. See Womack v. Columbus Rentals, 223 Ga. App. 501, 503 (3) (478 SE2d 611) (1996) (The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside. Therefore, following foreclosure of a deed to secure debt given by a landlord, a lessor cannot raise alleged defects in the foreclosure sale as a defense to a proceeding for possession by the foreclosure sale purchaser.); McKinney v. South Boston Savings Bank, 156 Ga. App. 114, 115 (2) (274 SE2d 34) (1980) (accord); see also Vaughan v. Moore, 202 Ga. App. 592, 592-593 (415 SE2d 47) (1992) (“A creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether he shall sue upon the note or exercise a power of sale contained in the deed, but he may do either, or pursue both remedies concurrently until the debt is satisfied.” If the creditor pursues the foreclosure remedy “to an initial conclusion,” however, the creditor may only continue to pursue the remedy of obtaining a judgment against the debtor if the creditor seeks confirmation of the foreclosure sale as required by OCGA § 44-14-161.) (citations and punctuation omitted).

       See OCGA § 13-5-30 (2) (A promise to answer for another’s debt, to be binding on the guarantor, must be in writing and signed by the guarantor.); John Deere Co. v. Haralson, 278 Ga. 192, 193 (599 SE2d 164) (2004) (To be binding, a guaranty must identify the debt, that is, the amount promised to be paid and the time the debt becomes due, as well as the principal debtor, the guarantor, and the creditor.); Cox v. U. S. Markets, 278 Ga. App. 287, 288 (1) (628 SE2d 701) (2006) (The Statute of Frauds is satisfied where a signed guaranty refers to other writings, which can be identified completely by this reference without the aid of parol evidence, and where the group of writings, construed together, contain “all the terms of the bargain.’’) (citation and punctuation omitted); see also LaFarge Bldg. Materials v. Pratt, 307 Ga. App. 767, 769 (706 SE2d 131) (2011) (“Even where the intent of the parties is manifestly obvious, where any of these names!, that is, the name of the principal debtor, the promisor, and the promisee,] is omitted from [a guaranty,] the agreement is not enforceable because it fails to satisfy the [S]tatute of fF]rauds.”) (citations and punctuation omitted); Capital Color Printing v. Ahern, 291 Ga. App. 101, 107 (1) (661 SE2d 578) (2008) (A court applies the ordinary rules of contract construction to an alleged guaranty to determine whether the essential elements of a guaranty are present and to determine the extent of the guarantor’s liability thereunder.).

       See also Haehn v. Alheit, 212 Ga. App. 252, 254 (3) (441 SE2d 529) (1994) (“Partial performance . . . will vitiate the [Sltatute of [Flrauds [when it is] substantial and essential to the contract and [when it] results in a benefit to one party and a detriment to the other.”) (citation and punctuation omitted).

       It is undisputed that, at the relevant times, Stephen R. Been and Stephen F. Been together owned and controlled Legacy Group; that Legacy Group owned and controlled Legacy Communities; that Legacy Communities owned and controlled Legacy Investment; that Stephen R. Been and Stephen F. Been together owned and controlled Tampa Investment; that Stephen R. Been owned and controlled SRB Investment; and that Stephen F. Been owned and controlled SFB Investment.

       It does not automatically follow that all eight of the pre-2008 notes satisfied the definition of a “prior loan” in the 2008 guaranties. Case No. A11A0696, however, presents only the issue of whether the Statute of Frauds protects the 2008 guarantors from liability as to those notes.


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A11A0706.
    JACKSON v. THE STATE.
    (713 SE2d 679)
   Phipps, Presiding Judge.

After a jury trial, Jamie Terrez Jackson was convicted of aggravated battery, two counts of first degree cruelty to children, and second degree cruelty to children, for acts against T. M., the four-year-old son of his girlfriend. Jackson also was convicted of possession of marijuana. He challenges on appeal the sufficiency of the evidence and the effectiveness of his trial counsel. Finding no error, we affirm.

1. Jackson argues that the evidence was insufficient to support his convictions. Viewed in the light most favorable to the verdicts, the evidence showed that on November 20, 2006, T. M. was admitted to the hospital with severe burns on his feet, buttocks, and scrotum; an older burn on his leg; bruises and abrasions over his body; a lacerated liver; and a cut lip. His burns were severely infected. He also was dehydrated and had a high fever. A hospital employee immediately contacted the police.

At the time T. M. was taken to the hospital, he lived with his mother and Jackson who, according to T. M.’s mother, would often discipline him and at times babysat him. T. M.’s mother stated that the burns had occurred on November 13, 2006. She had returned home from an errand to find T. M. sitting in the bathtub, burned. T. M. had been under Jackson’s care at the time. The burns worsened over the next week, but neither T. M.’s mother nor Jackson obtained medical help for the boy until November 20.

That night, police searched T. M.’s residence with his mother’s consent. There they found Jackson asleep on a bed next to a marijuana cigar, and substances determined to be marijuana were found elsewhere in the house. Jackson was arrested for possession of marijuana. After waiving his Miranda rights, Jackson stated that on November 13 he had placed T. M. in the bathtub and then left the room. He speculated that T. M. may have turned on the hot water himself, and stated that the boy had not complained about the water temperature. Jackson stated that he later saw the burns on T. M.’s feet and advised the boy’s mother to take him to the doctor. He also stated that he and the boy’s mother thought the burns were healing. In addition, Jackson admitted in his statement to disciplining T. M. by hitting him with a belt and with his hand. Jackson also informed the police that some of the marijuana found in the residence belonged to him.

T. M. stated in a forensic interview and testified at trial that Jackson had burned him with hot water on more than one occasion, and that Jackson had slapped his face and punched him in the stomach; T. M. further stated that these actions had hurt him and that when he was taken to the hospital he felt “bad.” A doctor specializing in burns, who also was experienced in treating victims of child abuse, opined that the nature of T. M.’s injuries was not consistent with Jackson’s account of how the burns had occurred, but was consistent with child abuse. He further testified that the extent of the burns would have caused T. M. intense pain. And he testified that the burns caused scars for which T. M. required ongoing medical therapy and treatment.

Jackson was convicted of aggravated battery for maliciously causing T. M. bodily harm “by seriously disfiguring his body, to wit: by placing him in excessively hot water, resulting in severe burns.” He was convicted of two counts of first degree cruelty to children for maliciously causing T. M. excessive physical or mental pain by “hitting the child with an object. . ., resulting in marks on his arms and legs,” and by “placing the child in excessively hot water, resulting in severe burns.” He was convicted of second degree cruelty to children for, with criminal negligence, causing T. M. excessive physical or mental pain by “failing to get medical treatment for burns the child sustained.” And he was convicted of possession of marijuana.

Jackson asserts generally that the evidence did not support his convictions. We find that, under the standard set forth in Jackson u. Virginia, the above evidence authorized the jury verdict on each offense for which Jackson was convicted.

2. Jackson argues that he received ineffective assistance of counsel because his trial counsel did not adequately investigate the case or interview witnesses, did not adequately consult with him, and did not object to improper comments made by the state during closing argument.

To prevail on such [a] claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

(a) Jackson contends that his counsel did not adequately investigate his case or interview witnesses prior to trial. Specifically, he argues that his counsel did not contact members of law enforcement, did not test the water temperature at Jackson’s house, did not subpoena medical records or Department of Family and Children Services (DFCS) records, and did not consult with an accident reconstructionist regarding the “actual mechanics” of the burn injury to T. M.

At the hearing on Jackson’s motion for new trial, however, counsel testified that he and his investigator had interviewed numerous individuals in connection with the case. Counsel testified that the state provided medical records and the report of its expert, and that he engaged a pediatric expert to review the medical records and help prepare cross-examinations. He also explained that he did not interview any of the law enforcement or DFCS witnesses because he believed that by doing so he would have risked providing information to them that could have helped the prosecution. Moreover, Jackson made no proffer as to what a more thorough investigation would have uncovered. The evidence supported a conclusion that Jackson failed to carry his burden of showing deficient performance or prejudice relating to his counsel’s preparation for trial.

(b) Jackson contends that his counsel did not spend sufficient time consulting with him before and during trial. Counsel testified at the hearing on Jackson’s motion for new trial, however, that he met with Jackson multiple times during the course of the case, showed him materials obtained through discovery, and discussed with him the medical records, how to respond to the state’s allegations, and whether Jackson would testify at trial. The evidence supported a conclusion that Jackson failed to carry his burden of showing deficient performance related to the amount of time his counsel spent consulting with him.

(c) Jackson contends that his counsel should have objected to arguments made by the state in its closing that the evidence presented by the defense demonstrated the paucity of the defense’s case, on the ground that those arguments constituted impermissible comments on his failure to testify at trial.

As a rule of constitutional and Georgia statutory law, a prosecutor may not comment upon a defendant’s failure to testify at trial. A criminal defendant alleging a violation of this rule establishes reversible error if the prosecutor’s manifest intention was to comment on the accused’s failure to testify or the remark was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.

Decided July 1, 2011.

David G. Daniell, for appellant.

T. Rabb Wilkerson III, District Attorney, Venita S. McCoy, Assistant District Attorney, for appellee.

The remarks cited by Jackson did not concern his decision not to testify, however; they concerned weaknesses in Jackson’s attempts to rebut or explain the state’s evidence. Accordingly, the remarks were not improper, and counsel’s failure to object to them did not amount to deficient performance.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       See OCGA § 16-5-24 (a) (a person commits the offense of aggravated battery when he maliciously causes bodily harm to another by, inter alia, seriously disfiguring his body or a member thereof).

       See OCGA § 16-5-70 (b) (a person commits the offense of cruelty to children in the first degree when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain).

       See OCGA § 16-5-70 (c) (a person commits the offense of cruelty to children in the second degree when he, with criminal negligence, causes a child under the age of 18 cruel or excessive physical or mental pain).

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

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007) (footnotes omitted).

       See Reed v. State, 285 Ga. 64, 66-67 (6) (673 SE2d 246) (2009); Harvey v. State, 284 Ga. 8, 11 (4) (c) (660 SE2d 528) (2008); Wallace v. State, 306 Ga. App. 118, 123 (3) (a) (701 SE2d 554) (2010).

       See Knight v. State, 242 Ga. App. 363, 366 (3) (528 SE2d 855) (2000).

        Lacey v. State, 288 Ga. 341, 344 (4) (a) (703 SE2d 617) (2010) (citations and punctuation omitted).

       See Jennings v. State, 282 Ga. 679, 682 (4) (653 SE2d 17) (2007).

       See Lacey, supra.


author: Mikell, Judge.

text:
    A11A0950.
    CITIFINANCIAL SERVICES, INC. v. HOLLAND.
    (713 SE2d 678)
   Mikell, Judge.

In this case, we conclude that the trial court’s order releasing funds and awarding interest to appellee is not final and that appellant’s failure to comply with the requisite interlocutory appeal procedures deprives this Court of jurisdiction. Accordingly, we dismiss the appeal. The relevant facts follow.

Ethel Mae Bunch Holland (“Holland”) was awarded certain property in Burke County on January 26, 2006, pursuant to her divorce from Alexander Morgan Holland, Jr. (“Alexander”). In 1998, Alexander executed a promissory note and security deed on the property in favor of CitiFinancial Services, Inc., but defaulted on the loan. CitiFinancial foreclosed on the property on March 7, 2006, selling it for $75,000. Because the debt was only $29,263.13, Citi-Financial received a surplus of $41,347.41. On August 25, 2009, an attorney for Alexander contacted CitiFinancial to demand payment of the surplus funds. On March 26, 2010, Holland filed a complaint against CitiFinancial under a conversion theory, claiming that she was entitled to the surplus funds because the underlying property had been awarded to her in the divorce. Holland also sought interest, attorney fees, and court costs. CitiFinancial filed an answer and a counterclaim for interpleader, seeking to pay the surplus funds into the registry of the court and to be dismissed from the action. Holland filed a motion asking the court to release the funds to her and award her interest. Following a hearing, the trial court issued an order awarding Holland the surplus funds, $41,347.41, plus four years and seven months of interest, for a total of $60,648.08. CitiFinancial appeals this order, challenging the award of interest.

Decided July 1, 2011.

Pendergast & Jones, Howell A. Hall, for appellant.

Victor Hawk, Reid V. Sanders, for appellee.

Holland has moved to dismiss this appeal, arguing that we lack jurisdiction because the order from which CitiFinancial appeals is not final. We agree. OCGA § 5-6-34 (a) (1) authorizes direct appeals to be taken from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below.” An order is considered “a final judgment within the meaning of OCGA § 5-6-34 (a) (1) where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court.” The court ruled on the issues raised in Holland’s motion to release funds but did not rule on her claim for attorney fees and costs. As that claim remains pending in the trial court, the order is not a final judgment within the meaning of OCGA § 5-6-34 (a) (l). As CitiFinancial did not comply with the requisite interlocutory appeal procedures, this appeal must be dismissed.

Appeal dismissed.

Smith, P J., and Dillard, J., concur.

       The trial court awarded prejudgment interest at the postjudgment rate. Compare OCGA § 7-4-2 (a) (1) (A) with OCGA § 7-4-12.

       CitiFinancial did not respond to Holland’s motion to dismiss.

       (Citations and punctuation omitted.) Standridge v. Spiders, 263 Ga. App. 401, 403 (1) (587 SE2d 862) (2003).

         See Northen v. Mary Anne Frolick & Assocs., 235 Ga. App. 804, 806 (1) (510 SE2d 122) (1998) (direct appeal dismissed, where plaintiffs claim for attorney fees in a contract action remained for adjudication after entry of judgment on all other counts). Accord Stump v. Young, 307 Ga. App. 583, 584 (705 SE2d 684) (2011) (appeal dismissed as premature where judgment reserved issues of attorney fees, costs, and interest).

       See OCGA § 5-6-34 (b).


text:
    A11A1092.
    In the Interest of T. C., a child.
    (714 SE2d 69)
   Mikell, Judge.

T. C. was accused by a petition filed in Lowndes County Juvenile Court of the offense of burglary in that, on or about October 7, 2010, he “did, without authority and with the intent to commit a theft therein, enter the residence belonging to Herman Davis and damaged property in said residence.” T. C. was adjudicated delinquent for such offense. He appeals, contending that the state failed to prove intent and, thus, that the evidence was insufficient to support the juvenile court’s adjudication. We disagree and affirm.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.

So construed, the evidence shows that a residence owned by Davis was broken into and vandalized on October 7, 2010. No one resided in the home at the time. Davis testified that the home was full of furniture but did not contain any electronics, such as televisions, because those had been stolen a year earlier when the home had been broken into the first time. Davis testified that boxes of his aunt’s personal items had been “thrown all to pieces” in a utility room. He had not been able to determine by the time of trial whether any items had been stolen. Sheriffs investigator Roy Hart testified that a sofa was slashed, windows were broken, a door frame was busted, and gang-related graffiti was spray painted onto a shed. According to Hart, a neighbor saw T. C. and two other juveniles running from the residence after the burglary. The juveniles admitted entering the home, and they both implicated T. C. in the crime.

T. C. argues that the state failed to show the requisite intent to commit theft because there was no evidence that any items were stolen. “Burglary does not require a completed theft, but merely the intent to commit a theft.” “The intention with which an act is done is peculiarly for the jury or finder of fact. . . . Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this.” “[A]n intent to steal may be inferred when the evidence shows an unlawful entry into the building of another where valuable goods are stored or kept inside.” Here, the victim described the valuable furnishings located throughout the residence. The evidence that boxes had been ransacked, and that the home was devoid of electronics, authorized the juvenile court, sitting as the trier of fact, to infer that T. C. entered the residence with the intent to commit a theft but found nothing he wished to take. “The fact that [T. C.] may have failed in accomplishing his apparent purpose does not render the finding of burglary improper.” The evidence adduced at trial was sufficient to enable a rational trier of fact to find the essential elements of burglary beyond a reasonable doubt.

Decided July 1, 2011.

Samantha M. Edwards, for appellant.

J. David Miller, District Attorney, Laura A. Wood, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       See OCGA § 16-7-1 (a): “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.”

       (Citation omitted.) In the Interest of M. W., 296 Ga. App. 248 (674 SE2d 107) (2009).

       (Citation omitted.) Wilson v. State, 261 Ga. App. 576, 577 (1) (583 SE2d 243) (2003).

        Climpson v. State, 253 Ga. App. 485, 486 (1) (559 SE2d 495) (2002), citing In the Interest of G. J., 251 Ga. App. 299-300 (554 SE2d 269) (2001).

       (Citations and punctuation omitted.) Studiemeyer v. State, 278 Ga. App. 756-757 (1) (629 SE2d 593) (2006).

       (Citations and punctuation omitted.) Sermons v. State, 294 Ga. App. 293, 294 (669 SE2d 210) (2008).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: Dillard, Judge.

text:
    A11A0237, A11A0335.
    GRANT v. KOOBY et al.; and vice versa.
    (713 SE2d 685)
   Dillard, Judge.

In this consolidated appeal, Larry A. Grant appeals the trial court’s grant of summary judgment to Dr. David A. Kooby and Emory Healthcare, Inc. (“EHI”) on Grant’s medical-malpractice claim in Case No. A11A0237, and Kooby and EHI appeal the trial court’s denial of their motion to dismiss Grant’s appeal for failing to timely pay the bill of costs in Case No. A11A0335. And because the trial court erred in denying Kooby and EHI’s motion to dismiss without making the requisite findings of fact required by OCGA § 5-6-48 (c), we vacate and remand Case No. A11A0335 for proceedings consistent with this opinion and dismiss Case No. A11A0237.

Case No. A11A0335

Following the trial court’s grant of summary judgment in favor of Kooby and EHI on Grant’s medical-malpractice claim, Grant filed a timely notice of appeal on June 25, 2010. On June 30, 2010, the appeals clerk for the State Court of DeKalb County sent a bill of costs to Grant, noting that the cost of preparing and transmitting the record to this Court was $586, and advising that “if the costs are not received within twenty (20) days from receipt of this letter, the appeal may be dismissed, pursuant to OCGA § 5-6-48 (c).” This letter was sent by certified mail and delivered to Grant on July 6, 2010.

On August 9, 2010 {34 days after Grant’s receipt of the trial court’s bill of costs), Kooby and EHI filed a motion to dismiss Grant’s appeal for failure to timely pay the bill of costs, as required by OCGA § 5-6-48 (c), and attached in support of this motion an affidavit from the appeals clerk, averring that — as of that date — payment of costs had not been received by the court. Ten days later (on August 19, 2010), Kooby and EHI filed an emergency request for oral argument on their motion to dismiss, expressing concern that the record in the first appeal might be “forwarded to the Court of Appeals prior to a ruling on whether the appeal should be dismissed,” and noting that Grant’s payment had still not been received by the clerk’s office (even though it had apparently been mailed by that time). This request was denied by the trial court four days later (on August 23, 2010), but in doing so the court (1) assured Kooby and EHI that the record in the first appeal would not be transmitted to this Court until it ruled on their motion to dismiss, and (2) advised the parties that they had until September 3, 2010, to request a hearing on the motion to dismiss.

Thereafter, Grant responded to Kooby and EHI’s motion to dismiss, alleging that the delay in payment was due to renewed settlement negotiations between the parties and a desire to avoid further expenses (if possible). The trial court ultimately denied the motion, noting in a summary order that neither party had requested oral argument, that “the motion was not well taken,” and that its findings were based upon the reasons and authority contained in Grant’s responsive brief. This appeal by Kooby and EHI follows.

At the outset, we note that OCGA § 5-6-48 (c) provides, inter alia, that a trial court may — after notice and opportunity for a hearing — dismiss an appeal when “there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court. . . ,” Thus, as recently emphasized by our Supreme Court in Propst v. Morgan, OCGA § 5-6-48 (c) “requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable” before exercising its discretion in “deciding whether to dismiss the appeal.” A trial court’s ruling on whether an appeal is subject to dismissal on such grounds will be reversed only for an abuse of that discretion.

In the case sub judice, we conclude that the trial court erred in denying Kooby and EHI’s motion to dismiss without first engaging in the analysis outlined by our Supreme Court in Propst. Indeed, there is “no indication in the record that the trial court conducted a hearing or otherwise considered evidence to make a determination as to whether under the circumstances the delay was unreasonable and, if so, whether it was inexcusable.” Specifically, there is nothing in the record demonstrating that the trial court (1) conclusively established the length of Grant’s delay in paying the required costs, (2) considered the reasonableness of Grant’s delay in paying those costs within the relevant precedential strictures, (3) considered the extent to which Grant was solely or largely responsible for the delay in paying the costs, and (4) determined whether Grant’s delay in paying the costs was inexcusable. Instead, the trial court merely entered a summary order denying Kooby and EHI’s motion to dismiss and relied exclusively upon the arguments and uncorroborated aver-ments contained in Grant’s responsive brief. And as a result, we are unable to engage in meaningful appellate review of whether the trial court properly exercised its discretion in denying Kooby and EHI’s motion to dismiss Grant’s appeal. We, therefore, must vacate the trial court’s order and remand the case with direction that findings of fact be entered on the issues noted supra.

In remanding this case for further proceedings, we note that, contrary to Kooby and EHI’s assertion, the trial court is not required to hold a hearing on this matter. As our Supreme Court has recently explained, OCGA § 5-6-48 (c)’s requirement that the trial court may not dismiss an appeal until first providing the parties with “notice and an opportunity for hearing” is “satisfied if the [complaining] party is given an opportunity to respond on the record to the motion to dismiss.” And to the extent our decision in McCorvey Development, Inc. v. D. G. Jenkins Development Corp. (upon which Kooby relies) can be read as standing for a contrary proposition, it is no longer of any precedential utility on that particular point of law.

Decided July 5, 2011.

Bradley W. Bledsoe, Ernest C. Trammell, for appellant.

Allen, McCain & OMahony, Hunter S. Allen, Jr., Cara E. Weiner, Simuel F. Dosier, Jr., for appellees.

Case No. A11A0237

In view of our holding in Case No. A11A0335, the appeal in Case No. A11A0237 is premature and must be dismissed. If on remand of Case No. A11A0335 the trial court determines that the appeal should be allowed, Grant shall have 30 days to appeal the issues raised in Case No. A11A0237.

Judgment vacated and case remanded with direction in Case No. A11A0335. Appeal dismissed in Case No. A11A0237.

Ellington, C. J., Smith, P. J., Barnes, P. J., Miller, P. J., Phipps, P. J., Andrews, Mikell, Adams, Doyle, Blackwell, and McFadden, JJ., concur.

       The appellate record does not conclusively establish that Grant ever paid the bill of costs, but for purposes of this appeal, such a determination is not necessary.

       In this same order, the trial court gave Grant until September 3, 2010, to respond to Kooby and EHI’s motion to dismiss.

       OCGA § 5-6-48 (c) (also granting a 20-day safe harbor period for payment of costs after receipt of bill of costs from trial court); see also Sellers v. Nodvin, 262 Ga. 205, 206 (1) (b) (415 SE2d 908) (1992) (noting that the threshold question of whether the delay was unreasonable “refers principally to the length and effect of the delay” (punctuation omitted)).

       288 Ga. 862 (708 SE2d 291) (2011).

        Id. at 863.

        Id.; see also Rahman v. Daikon Shield Claimants Trust, 243 Ga. App. 623, 624 (532 SE2d 699) (2000) (“tW]e review the exercise of such discretionary authority upon an abuse of discretion standard.” (footnote omitted)); Logan v. St. Joseph Hosp., 227 Ga. App. 853, 854 (490 SE2d 483) (1997) (“The cause for delay in the processing of the appeal is a fact issue for determination in the trial court, and in making that determination the trial court exercises a broad legal discretion [that] is subject to appellate scrutiny only for abuse.” (citation and punctuation omitted)).

        See Propst, 288 Ga. at 863.

        Crenshaw v. Ga. Underwriting Ass’n, 202 Ga. App. 610, 611 (1) (414 SE2d 915) (1992).

       As we have previously noted, a delay in paying costs of more than 30 days is prima facie unreasonable and inexcusable; however, this is a rebuttable inference. See, e.g., Morrell v. W. Servs., LLC, 291 Ga. App. 369, 372 (1) (662 SE2d 215) (2008); McCorvey Dev., Inc. v. D.G. Jenkins Dev. Corp., 260 Ga. App. 276, 277 (581 SE2d 308) (2003); see also Langdale Co. v. Langdale, 295 Ga. App. 372, 374 (671 SE2d 863) (2008) (holding that evidence that a party’s delay in paying costs was caused by a miscommunication was not sufficient to rebut inference); Dye v. U. S. Bank Nat’l Ass’n, 273 Ga. App. 652, 654 (616 SE2d 476) (2005) (holding that inference was not rebutted when a party failed to produce evidence “beyond their own ignorance”); Stone v. Boyne, 245 Ga. App. 868, 869 (539 SE2d 209) (2000) (holding that a party’s explanation that the delay in paying costs was caused by a desire to avoid seeking public assistance in payment did not rebut inference); Kendall v. Burke, 237 Ga. App. 742, 742 (516 SE2d 791) (1999) (holding that a party failed to present any evidence to rebut inference that delay was unreasonable and inexcusable); Leonard v. Ognio, 201 Ga. App. 260, 261 (410 SE2d 814) (1991) (same).

        Rogers v. Norris, 262 Ga. App. 857, 857 (1) (586 SE2d 747) (2003) (“Although we review the trial court’s decision for an abuse of discretion, ‘the trial court must make findings on these issues before we may determine whether its discretion was abused.’ ” (quoting Ga. Dep’t of Human Res. v. Patillo, 194 Ga. App. 279, 279 (390 SE2d 431) (1990))); see also Wood v. Notte, 238 Ga. App. 748, 749 (1) (519 SE2d 923) (1999) (same); Crenshaw, 202 Ga. App. at 611 (1) (same).

        See Rogers, 262 Ga. App. at 857 (1) (“Failure to make [findings of fact] mandates that we vacate the order dismissing the appeal and remand the case with the direction that findings of fact be entered on these issues.”); Dalton v. Vo, 224 Ga. App. 382, 382-83 (480 SE2d 377) (1997) (“[T]he trial court did not make the findings of fact necessary to vest it with discretion to dismiss this appeal.” (citation omitted)); Crenshaw, 202 Ga. App. at 611 (1) (reversing and remanding the denial of a motion to dismiss appeal when the trial court failed to make findings of fact and instead denied “without elaboration”); Ga. Dep’t of Human Res., 194 Ga. App. at 279 (“The failure to ascertain the reasonableness and excusableness of the delay mandates a reversal of the order and a remand with instruction that findings be made on these issues.” (citations omitted)). Compare Mitchell v. 3280 Peachtree 1, LLC, 285 Ga. 576,577 (2) (678 SE2d 880) (2009) (holding that trial court made sufficient findings of fact when it dismissed appeal); Brandenburg v. All-Fleet Refinishing, Inc., 252 Ga. App. 40, 43 (555 SE2d 508) (2001) (holding that trial court made sufficient findings of fact when it dismissed appeal); A. Roberts Corp. v. Roberts, 207 Ga. App. 663, 664 (428 SE2d 671) (1993) (same).

        Mitchell, 285 Ga. at 576 (1) (emphasis supplied); see also Lemmons v. Newton, 269 Ga. App. 880, 881 (605 SE2d 626) (2004) (same).

       260 Ga. App. 276 (581 SE2d 308) (2003).

        See id. at 277. In this respect, it is worth noting that the sole basis for the McCorvey Court’s conclusion that OCGA § 5-6-48 (c) requires a trial court to hold a hearing prior to dismissing an appeal was this Court’s decision in Holy Fellowship Church of God in Christ v. First Community Bank of Henry County, 242 Ga. App. 400 (530 SE2d 24) (2000), which merely held that “a trial court may order the dismissal of an appeal only after notice and an
        opportunity for a hearing.” See id. at 403 (emphasis supplied).

       Nevertheless, given the paucity of record evidence on the issues the trial court is required to consider on remand (as outlined supra), it may very well be prudent to hold a hearing or (at the very least) permit the parties to file supplemental briefs with supporting affidavits and documentation.

        See Crenshaw, 202 Ga. App. at 612.

        Id.