author: Mikell, Presiding Judge.

text:
    A12A0587.
    SHERMAN v. DEVELOPMENT AUTHORITY OF FULTON COUNTY et al.
    (730 SE2d 113)
   Mikell, Presiding Judge.

John S. Sherman appeals from a Fulton County Superior Court judgment that validated and confirmed certain revenue bonds and bond security. For the reasons that follow, we vacate the judgment and remand the case.

In accordance with the Revenue Bond Law, the State of Georgia initiated a bond validation proceeding in July 2011 by filing a “Petition and Complaint for Bond Validation,” naming as defendants the Development Authority of Fulton County (“DAFC”) and Lowe’s Home Centers, Inc. (“Lowe’s”). The pleading sought a judgment confirming and validating DAFC’s issuance of proposed taxable revenue bonds and related security as required by the Development Authorities Law. The bonds were intended to finance the acquisition, renovation, and equipping of a warehouse distribution center in Fulton County (the “Project”) that would be developed by Lowe’s. DAFC and Lowe’s filed acknowledgments of service and answers.

The petition sought to create a bond transaction leasehold estate, where in consideration for the issuance of the bonds, Lowe’s agreed to transfer fee simple title in the Project to DAFC, and DAFC and Lowe’s agreed to execute a lease agreement under which Lowe’s would have the right to possession of the Project for a term of ten years. At the conclusion of the lease term, Lowe’s would have a right to acquire the Project for nominal consideration.

In connection with the transaction, the Fulton County Board of Tax Assessors (the “Board”), DAFC, and Lowe’s executed a Memorandum of Agreement (“Memorandum”) establishing the valuation methodology the Board was to use in assessing ad valorem taxes on the leasehold estate. Because the transaction gives Lowe’s the right to acquire a fee simple interest in the Project for a nominal amount after the expiration of the ten-year lease period, DAFC’s appraisal expert, Henry Wise, testified at the validation hearing that the real value of Lowe’s leasehold interest is in that “reversionary interest.” Accordingly, the Memorandum dictates that the Board will determine the fee simple market value of the Project utilizing the income approach, and then will determine the value of Lowe’s leasehold interest by utilizing a “ramp-up schedule.” The “ramp-up schedule” assumes that the value of the leasehold interest in the first year of the lease is 50 percent of the fee simple market value, and that value increases by five percent per year as the ten-year term progresses, moving closer to the benefit of the reversionary interest.

Sherman, as a resident of Fulton County, intervened in the proceedings and filed a pleading captioned “Objections to Bond Validation, Denial of Bond Validation Petition Allegations and Plea in Abatement.” Sherman’s objection listed numerous grounds for denying the state’s petition, and requested that the trial court provide an order setting forth findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a).

The bond validation proceeding was heard by the trial court, but counsel for Sherman did not appear and provide any argument. After a hearing, the trial court issued an order validating and confirming the bonds and bond security (the “Validation Order”).

The parties agree that the facts in this case are not in dispute. Accordingly, “this Court conducts a de novo review of the record in determining whether the trial court committed plain legal error.”

1. Sherman first contends that the Validation Order is “void on its face,” arguing that the trial court did not have personal jurisdiction over Lowe’s because its acknowledgment of service and answer were signed by Gary E. Wyatt, the senior vice president of Lowe’s, rather than a Georgia licensed attorney, as required by law. Sherman did not raise this argument in the trial court below. As a general rule, we will not consider issues raised for the first, time on appeal. Citing OCGA § 9-12-16, Sherman argues that an exception to this rule applies because the trial court lacked personal jurisdiction over Lowe’s due to a faulty acknowledgment of service. OCGA § 9-12-16 provides that “[t]he judgment of a court having no jurisdiction of the person or the subject matter ... is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.” Pretermitting whether Lowe’s executed a valid acknowledgment of service, we find that Lowe’s waived any possible objections to personal jurisdiction it might have had by appearing and filing a pleading on the merits of the case. Because Lowe’s raised no objection to personal jurisdiction of the trial court in this matter, we find that the trial court had personal jurisdiction over the corporation and, accordingly, Sherman’s enumeration is without merit. Further, we cannot consider Sherman’s enumeration of error in regards to Lowe’s answer for the first time on appeal because it does not deal with issues of personal jurisdiction.

2. The Validation Order held that the parties had the authority to enter into the Memorandum and held that the Memorandum was valid and enforceable. Sherman contends that the trial court was without jurisdiction to rule upon the Memorandum’s validity, arguing that pursuant to the statutes constituting the Revenue Bond Law, a bond validation order may address only the validity of the bonds and the security for the payment of the bonds. We disagree.

The bonds at issue in this case are not issued under the Revenue Bond Law, as Sherman contends. Rather, they are issued under the Development Authorities Law (the “Act”). Bonds issued under the Act are required to undergo the validation process set forth in the validation provisions set forth in the Revenue Bond Law. These validation procedures dictate, among other things, how the validation hearing is to be noticed and tried and direct that the “judge of the superior court shall proceed to hear and determine all questions of law and of fact in the case and shall render judgment thereof.” Unlike bonds issued under the Revenue Bond Law, bonds issued under the Act must be payable solely from privately paid proceeds pledged to repay the bonds, including rental or sale proceeds. Accordingly, in a transaction such as this one, in which the bonds will be paid through lease proceeds, all agreements relating to the lease are properly within the court’s jurisdiction. Because the Memorandum is referenced by the lease and dictates the methodology to be used to value Lowe’s leasehold estate for ad valorem tax purposes, which is necessary “to provide [Lowe’s] with sufficient information and certainty upon which it can base its decision” to enter into the lease that secured the bond transaction, it constitutes an integral part of the lease agreement and was properly before the trial court.

3. Sherman next argues that the trial court erred in adjudicating the validity of the Memorandum because the Board was a party to the Memorandum, and thus it was an indispensable party to the litigation under OCGA § 9-11-19 (a). We disagree.

OCGA § 9-11-19 (a) provides that “[a] person who is subject to service of process shall be joined as a party in the action if... [i]n his absence complete relief cannot be afforded among those who are already parties; or [h]e claims an interest relating to the subject of the action.” Stated' differently, “if there are no compelling reasons for joining third parties, then they are not indispensable, and it is not necessary to join them for a just adjudication of the action between the original parties.” Sherman has not made this showing.

The Memorandum is clear that the Board was aware of the bond transaction and that the Memorandum was to be submitted to the court for validation, and yet the Board did not seek to intervene. The Board did not claim an interest in the action and is not so situated that the disposition of the proceeding, in its absence, may impair or impede the Board’s ability to protect its interest or leave any of the other parties subject to substantial risk of incurring multiple or inconsistent obligations. If the trial court had determined that the valuation methodology set forth in the Memorandum was not legally supportable, the court would not have validated the Memorandum and the Board would not be obliged to apply the methodology. Further, Sherman makes no argument that he will be deprived of relief as a consequence of the Board’s absence from the bond validation proceeding.

Further, we cannot consider Sherman’s contention that the trial court was without jurisdiction to pass judgment on the valuation methodology because he did not raise the argument before the trial court. As stated above, we will not consider issues raised for the first time on appeal.

4. In his sixth enumeration of error, Sherman challenges the trial court’s failure to present adequate findings of fact and conclusions of law with respect to several grounds he asserted.

Under OCGA § 9-11-52 (a), a trial court presiding over a bench trial “shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” These findings of fact and conclusions of law are “mandatory, and a dry recitation that certain legal requirements have been met is insufficient to satisfy the requirements of the law.”

In his objection, Sherman filed a request for a detailed order pursuant to OCGA § 9-11-52 (a). However, in the Validation Order, the trial court states that “the parties to this proceeding have duly and lawfully waived the requirement that separate findings of fact and conclusions of law be entered pursuant to OCGA § 9-11-52.” Although the trial court prepared an eight-page order stating findings of fact and conclusions of law regarding the validity of the bonds and bond security, we find that it did not adequately address Sherman’s fourth and fifth enumerations, as we will discuss below.

(a) In his fourth enumeration, Sherman asserts that the trial court erred in adjudicating the validity of the “ramp-up” methodology for determining the fair market value of the leasehold estate because it did not comply with Sherman I or DeKalb County Board of Tax Assessors v. W. C. Harris In his request for an order pursuant to OCGA § 9-11-52 (a), Sherman specifically requested “factual findings regarding the evidence presented regarding the valuation of the proposed leasehold estate according to the Harris factors, as required under Sherman [I].”

In Sherman I Sherman brought an action for declaratory judgment and injunction against the Board and DAFC based on the theory that the “ramp-up” methodology for valuing the leasehold estate, similar to the one at issue in the present case, did not provide the true market value, as required by law. Our Supreme Court reversed the trial court’s grant of appellees’ motions for judgment on the pleadings and to dismiss the case, finding that appellees “failed to show that they are clearly entitled to judgment [on the pleadings]” and that the grant of the motion to dismiss was improper because Sherman had made “material allegations which could be supported by admissible evidence” on whether the “ramp-up” methodology for determining the fair market value of the leasehold estate was arbitrary and unreasonable. To find that the valuation methodology applied by the local county board of tax assessors to a bond transaction leasehold estate was not “arbitrary or unreasonable[,]” our Supreme Court applied factors set forth in Harris, and indicated that it required evidence that the method “followed an authorized income appraisal approach [and] that [it] took into account the fair market value of similarly leased property and was based upon prevailing rents in the area.” This is because “the fair market value of a leasehold interest must necessarily vary in accordance with the terms and conditions of each agreement as well as the nature and location of the property involved.” Most importantly, the Sherman I court noted that “a valuation of the fee simple estate is just the first step. Appellees will need to offer evidence as to how their [‘ramp-up’] method applied to the leasehold estate incorporates the requisite factors.”

In the case sub judice, the Validation Order recites that its findings are based upon an inspection of the record and hearing of the evidence; that “the [Memorandum] sets forth a reasonable and non-arbitrary method of arriving at the fair market value of the property that is the subj ect of the bond transaction for purposes of tax assessment and represents a legally valid valuation methodology for utilization by [the Board]” and that Sherman’s objections are “without merit and the valuation methodology employed in the Memorandum of Agreement complies with both [Sherman I] and [Harris].”

However, the Validation Order does not specifically set forth the facts or process by which the trial court reached these conclusions. Under OCGA § 9-11-52 (a), the “trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached.” This is especially true in this case because Sherman requested specific findings of fact and conclusions of law with regard to the trial court’s application of the Sherman I factors. Additionally, “ ‘[findings of fact’ are insufficient when they merely state the court’s answers to the material issues in the case, and when they contain no facts based on the evidence supporting those answers.” Although the Validation Order states that the valuation methodology set forth in the Memorandum complies with Sherman I and Harris, it does not explain the facts or analysis it used to reach this conclusion. Without such evidence, we are unable to determine, pursuant to Sherman I and Harris, that the valuation method used by appellees is not arbitrary and unreasonable.

Decided July 5, 2012

Reconsideration denied July 31, 2012.

John E Woodham, for appellant.

(b) In his fifth enumeration of error, Sherman argues that the trial court erred in concluding that the bond transaction structure did not violate OCGA § 36-62-8 (b), the statutory provision relating to the disposition of bond proceeds. OCGA § 36-62-8 (b) requires the proceeds derived from the sale of bonds to be used “for the ultimate purpose of paying ... all or part of the cost of any project.” Because, in this case, Lowe’s purchased its own bonds and thus no funds immediately changed hands, Sherman asserts that the bond transaction is a “sham.”

In its Validation Order, the trial court found that the “[bjonds ... will constitute limited obligations of the Issuer and will be payable solely from the revenues to be derived under the Lease Agreement”; and that the “[ijssuer is taking all proper and necessary steps to issue the Bonds and to use the proceeds for the purposes stated.” However, the Validation Order does not specifically address Sherman’s objection that this transaction does not comply with OCGA § 36-62-8 (b) or the process by which it came to its conclusion that the proposed transaction followed “all proper and necessary steps.” Because the Validation Order contains “merely a dry recitation that certain legal requirements have been met [regarding Sherman’s fifth enumeration,] adequate appellate review of the trial judge’s decision making process is effectively prevented.”

Based upon the above, this judgment is vacated and the case remanded “so that the superior court may enter a judgment setting forth requisite findings of fact and conclusions of law that will allow meaningful appellate review of the trial court’s rejection of Sherman’s arguments.”

Judgment vacated and case remanded with direction.

Ellington, C. J., and Miller, J., concur.

Paul L. Howard, Jr., District Attorney, IchterThomas, Cary Ichter, S. Renee Huskey, Schiff Hardin, Lewis C. Horne, Jr., Womble, Carlyle, Sandridge & Rice, George W. Long III, for appellees.

       OCGA § 36-82-60 et seq.

       OCGA § 36-62-1 et seq.

       A bond transaction leasehold estate is created when a local development authority, in accordance with its redevelopment powers, enters into a bond transaction agreement with a private developer of certain real property. The local development authority issues revenue bonds under a financing program to the developer, who conveys to the authority fee simple title to the property. The development authority and the developer then enter into a multi-year lease arrangement whereby the authority, as owner, leases the property to the developer. The resulting lease payments are used by the local development authority to make the principal and interest payments on the revenue bonds. The terms of the agreement allow the developer to repurchase the fee simple estate for a nominal amount once the revenue bonds are paid down or retired.

        Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 89 (701 SE2d 472) (2010) (“Sherman I”).

       While DAFC is exempt under OCGA § 36-62-3, a business which takes a leasehold from the authority is subject to ad valorem taxation on the fair market value of the possessory interest held. See DeKalb County Bd. of Tax Assessors v. W. C. Harris & Co., 248 Ga. 277, 279 (2) (282 SE2d 880) (1981).

       OCGA § 36-82-77 (a) (“Any citizen of this state who is a resident of the governmental body which desires to issue such bonds may become a party to the proceedings at or before the time set for the hearing”). See Sherman v. Dev. Auth. of Fulton County, 314 Ga. App. 237, n. 3 (723 SE2d 528) (2012) (“Sherman II”). The parties have made no argument that Sherman was not entitled to participate in the proceeding as an intervenor.

       (Punctuation and footnote omitted.) Greene County Bd. of Commrs. v. Higdon, 277 Ga. App. 350 (626 SE2d 541) (2006).

       See Waller v. Rymer, 293 Ga. App. 833, 835, n. 3 (668 SE2d 470) (2008) (corporate party cannot appear pro se, but must be represented by legal counsel). Accord Eckles v. Atlanta Technology Group, 267 Ga. 801, 805 (2) (485 SE2d 22) (1997) (“Having accepted the benefits of incorporation, a corporation must also accept the burdens, including the need to hire counsel to sue or defend in court”) (citation and punctuation omitted).

        Safe Shield Workwear, LLC v. Shubee, Inc., 296 Ga. App. 498, 500-501 (2) (675 SE2d 249) (2009) (“[0]ur appellate courts are courts for the correction of errors of law committed in the trial court. . . . Therefore, absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal”) (citation and footnote omitted).

       See Regency Mall Assocs. v. G. W.’s Restaurant, 213 Ga. App. 225, 225 (444 SE2d 572) (1994) (personal jurisdiction may be waived); OCGA § 9-11-12 (h) (1); Merry v. Robinson, 313 Ga. App. 321, 322 (1) (721 SE2d 567) (2011) (“When a defendant appears and wishes to contend that service of process is insufficient and that, as a result, the court lacks jurisdiction of his person, he must raise the issue in his first responsive pleading or motion, and if he does not, he waives it”) (citation omitted).

       OCGA § 36-82-60 et seq.

       Id. The Revenue Bond Law governs the issuance of bonds by a governmental body, such as a school district, county, or municipal corporation to finance government projects. OCGA § 36-82-61 (2).

       OCGA § 36-62-1 et seq. The Act governs bonds issued by developmental authorities for the purpose of promoting economic development of the municipality. OCGA § 36-62-4. The projects developed pursuant to the Act must be leased to, sold to, or managed by a private entity. OCGA § 36-62-7.

       OCGA § 36-62-8 (g).

       OCGA § 36-82-74.

       OCGA § 36-82-77 (a).

       OCGA § 36-62-7.

       See Sherman I, supra at 95. (“Requiring that agreements relating to bond transactions be specifically referenced in the pleadings and adjudicated in the validation proceedings protects the public’s constitutional right of due process to receive adequate notice of the subject of the hearing and the opportunity to be heard”) (citation and punctuation omitted).

       (Punctuation and footnote omitted.) Merritt v. Marlin Outdoor Advertising, 298 Ga. App. 87, 93 (4) (679 SE2d 97) (2009).

       See OCGA § 9-11-19 (a) (1), (2).

        Safe Shield Workwear, supra at 500-501 (2).

       See Grantham v. Grantham, 269 Ga. 413, 414 (1) (499 SE2d 67) (1998) (noting that “findings of fact and conclusions of law enable the parties to specify the errors the trial court purportedly made, and enable the appellate court to review the judgment adequately and promptly’) (citation omitted).

       (Citation omitted.) C&H Couriers v. American Mut. Ins. Co., 166 Ga. App. 853 (1) (305 SE2d 500) (1983).

       Supra.

       Supra.

       Supra.

       Id. at 89.

       Id. at 95.

       Id. at 93.

       Supra at 281 (3).

       (Punctuation omitted.) Sherman I, supra at 92, citing Harris, supra.

       (Punctuation omitted.) Id., citing Harris, supra.

       Id. at 93.

       (Citation and punctuation omitted.) C & H Couriers, supra at 853 (1).

       (Citation omitted.) Id.

       See Sherman II, supra. In Sherman II, Sherman intervened in a similar bond validation proceeding and objected to the “ramp-up” valuation methodology. Because the trial court’s validation order did not set forth findings of fact and conclusions of law with regard to Sherman’s objections, this Court vacated the validation order and remanded it so that the superior court could “enter a judgment setting forth requisite findings of fact and conclusions of law that will allow meaningful review of the trial court’s rejection of Sherman’s arguments”) (footnote omitted).

        Pruitt v. First Nat. Bank of Habersham County, 142 Ga. App. 100 (1) (235 SE2d 617) (1977) (applying previous version of OCGA § 9-11-52 (a)).

       (Footnote omitted.) Sherman II, supra at 238-239.


source: Caselaw Access Project

author: Miller, Judge. Blackwell, Judge, dissenting.

license: Public Domain

text:
    A12A0619.
    REESE et al. v. PROVIDENT FUNDING ASSOCIATES, LLP.
    (730 SE2d 551)
   Miller, Judge.

Izell and Raven Reese filed the underlying lawsuit against Provident Funding Associates, LLP (“Provident”), seeking damages for wrongful foreclosure. Both parties sought summary judgment, which the trial court granted in favor of Provident and denied in favor of the Reeses. On appeal, the Reeses contend that the trial court erred in granting Provident’s motion for summary judgment on the wrongful foreclosure claim, and in denying the Reeses’ cross-motion for summary judgment on that issue, because (1) Provident’s June 2009 foreclosure notice did not comply with the requirements of OCGA § 44-14-162.2; and (2) Provident’s notice of default did not comply with the terms of the security deed. For the reasons set forth below, we reverse the judgment of the trial court and remand this case with direction to the trial court to enter summary judgment in favor of the Reeses.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, this Court must conduct a de novo review of the evidence and view the undisputed facts in the light most favorable to the nonmoving party.

(Footnotes omitted.) ChoicePoint Svcs. v. Graham, 305 Ga. App. 254, 255 (699 SE2d 452) (2010).

So viewed, the evidence shows that on July 23, 2004, the Reeses executed a promissory note (the “Note”) in exchange for a $650,000 loan from Provident in order to purchase real property in Roswell, Georgia. The loan was secured by a deed conveying Provident and its nominee an interest in the property and a power of sale in the event of a default (the “Security Deed”). Pursuant to the Security Deed, Mortgage Electronic Registration Systems, Inc. (“MERS”), acting solely as the nominee for Provident and its successors and assigns, was designated as the grantee of the Security Deed. After Provident funded the loan, Provident sold and delivered the Note to Residential Funding Company, LLC (“RFC”). Although RFC succeeded Provident as the holder of the Note, Provident nevertheless remained as the loan servicer, retaining the right to collect payments and perform all other mortgage loan servicing functions authorized by the Security Deed.

In January 2009, the Reeses defaulted on their loan, and on February 13, 2009, Provident sent the Reeses a notice of default as required by the terms of the Security Deed. The Reeses failed to cure their default within 30 days, and on June 3, 2009, Provident, through its attorneys, sent a letter notifying the Reeses that Provident was commencing foreclosure proceedings. On July 7, 2009, Provident held a non-judicial sale of the property. Provident purchased the property and subsequently filed a dispossessory action against the Reeses to evict them from the property.

On July 30,2009, the Reeses filed a complaint against Provident, alleging wrongful foreclosure. Provident filed a motion for summary judgment on the grounds that it had full authority to foreclose on the property and that it had done so properly. The Reeses filed a cross-motion for summary judgment, contending that (i) Provident failed to comply with the Security Deed terms requiring that the Reeses be given notice that they had a right to bring a court action to assert the non-existence of default or any other defense to acceleration and sale; and (ii) the notice of foreclosure provided by Provident did not include information on the “secured creditor,” which violated OCGA § 44-14-162.2. Following a hearing on the parties’ motions, the trial court denied the Reeses’ cross-motion for summary judgment on the wrongful foreclosure claim and granted Provident’s motion for summary judgment on that issue. The trial court’s order specifically found in pertinent part that Provident’s notice of foreclosure “was in keeping with... OCGA § 44-14-162.2,” and that the Reeses could not sustain a claim for wrongful foreclosure. We disagree.

1. The Reeses contend that the trial court’s decision was erroneous because Provident’s June 2009 foreclosure notice did not comply with the requirements of OCGA § 44-14-162.2. Specifically, the Reeses argue that Provident was not the “secured creditor” for purposes of sending the notice, and that the identity of the secured creditor was never revealed. This case is one of first impression in a Georgia appellate court. The inquiry is whether the provisions of OCGA § 44-14-162.2 (a) require that a notice of foreclosure disclose the identity of the secured creditor. Upon considering the statute in its entirety, as well as the legislative intent, we conclude that the statute does require that the notice properly identify the secured creditor and reflect that the notice is being sent by the secured creditor or by an entity with authority on behalf of the secured creditor.

OCGA § 44-14-162.2 (a) mandates that

[njotice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor [.]

(Punctuation omitted; emphasis supplied.) “Where a foreclosing creditor fails to comply with the statutory duty to provide notice of sale to the debtor in accordance with OCGA § 44-14-162 et seq., the debtor may either seek to set aside the foreclosure or sue for damages for the tort of wrongful foreclosure.” (Citation omitted.) Roylston, supra, 290 Ga. App. at 559 (1) (b).

Here, it is undisputed that at the time Provident sent the June 3, 2009, notice of the foreclosure sale, it was not the secured creditor. Provident admitted that it was not the holder of the Note, and the record reflects that MERS, and not Provident, was the grantee of the Security Deed until June 24, 2009. Rather, RFC was the secured creditor, i.e., owner of the loan, and Provident was merely the loan servicer. It is also undisputed that Provident made misrepresentations in the contents of the notice of foreclosure sale. First, the notice misidentified Provident as the holder of the Note and the Security Deed. Second, the notice misidentified Provident as the “Lender,” rather than as the loan servicer. Indeed, the notice made no mention whatsoever of RFC, the secured creditor, resulting in a complete failure to properly reflect that the notice was sent by, or on behalf of, the proper secured creditor.

At first glance, if you read the first or second sentence of OCGA § 44-14-162.2 (a) in isolation, it may seem unambiguous. However, a statute must be viewed “as a whole to construe all parts of a statute together to make all its parts harmonize [.]” (Citation and punctuation omitted.) ALLTEL Ga. Communications Corp. v. Ga. Public Svc. Comm., 270 Ga. 105, 107 (1) (505 SE2d 218) (1998). Following the general legal principles of statutory construction, the ambiguity of the statute is highlighted when it is applied in the context of the facts of this case, where a notice is sent by a third party other than the secured creditor and that third party misrepresents the identity of the true secured creditor. In that situation, it becomes unclear whether the plain language of OCGA § 44-14-162.2 (a) requires the notice to reflect both the identity of the secured creditor giving the notice, as well as the person or entity with the full authority to negotiate, amend, and modify the mortgage.

In resolving this issue, we look to the literal language of the statute, the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute so as to give effect to the legislature’s intent. In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.

(Citations and punctuation omitted.) Moore v. Moore-McKinney, 297 Ga. App. 703, 706 (1) (678 SE2d 152) (2009); see also Mason v. Home Depot U.S.A., 283 Ga. 271, 277-278 (3) (658 SE2d 603) (2008) (“It is always the duty of a court, in construing a statute, to ascertain and give full effect to the legislative intent.”) (citation and punctuation omitted).

A persuasive discussion of the legislature’s intent is set out by the Northern District of Georgia in Stubbs v. Bank of America, 844 FSupp.2d 1267, 1271 (N.D. Ga. 2012) (originally filed in state court and removed to the Northern District of Georgia based on diversity jurisdiction), which held as follows:

While it may be of no consequence who actually sends the notice, and that task may properly be delegated to a servicing agent (or, as is often the case, an attorney), the amendments of sections [OCGA § 44-14-] 162 and [OCGA § 44-14-]162.2 in 2008 make clear that the identity of the secured creditor conducting the sale is a material element of that notice.

These 2008 amendments included the following clause added to OCGA § 44-14-162: “The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.” OCGA§ 44-14-162 (b); see Ga.L. 2008, p.624, § 1. OCGA § 44-14-162.2 (a) was also amended to require the secured creditor to send the pre-foreclosure notice 30 days prior to sale (rather than 15) and to require that this notice “shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor.” See Ga. L. 2008, p. 624, § 2. As stated in Stubbs,

[t]he legislature enacted the 2008 amendments of the foreclosure statute with the goal of making transparent both the identity of the secured creditor with authority to foreclose and the identity (and contact information) of the party with authority to agree to a loan modification. Often, the secured creditor and the entity with full authority to modify the loan will be one and the same. At times a servicing agent may have full authority to modify the loan, .but the fact that it is merely a servicer acting on behalf of a loan holder, and the identity of that holder, is relevant to that factual question. In any event, these two sections were amended simultaneously with a clear purpose — to increase transparency and clarity in what can otherwise be a quite bewildering process, both in order to avert any avoidable foreclosures through loan modifications and to protect the integrity of Georgia’s real property records. This is evidenced by the title of the 2008 bill amending the statute, which describes its purpose as follows:
AN ACT to amend Article 7 of Chapter 14 of Title 44 of the Official Code of Georgia Annotated, relating to foreclosure on mortgages, conveyances to secure debt, and liens, so as to require a foreclosure to be conducted by the current owner or holder of the mortgage, as reflected by public records; to provide for the identity of the secured creditor to be included in the advertisement and in court records; to change the requirement for mailing or delivery of notice to debtor for sales made under the power of sale in a mortgage, security deed, or other lien contract; to provide for the content of such notice; to provide for related matters; to provide an effective date; to repeal conflicting laws; and for other purposes.!]

Stubbs, supra, 844 FSupp.2dat 1270-1271 (citing Ga. L. 2008, p. 624). We agree with the federal court that the intent of the 2008 amendments was transparency in the foreclosure process. As such, this Court concludes that the true identity of the secured creditor must be included in the notice of foreclosure sale. Nothing in OCGA § 44-14-162.2 (a) would preclude the identification of both the secured creditor and the entity with the authority to negotiate, amend, and modify the mortgage.

The Northern District’s analysis in Stubbs is compelling, and although not controlling, is persuasive authority in analyzing the very same Georgia statute that we interpret in this case. Notably, the circumstances in this case are nearly identical to those presented in Stubbs, where

the actual “secured creditor” did not provide notice of the foreclosure sale as required by OCGA § 44-14-162.2. Nor did the servicer, acting as agent for the secured creditor, send a foreclosure notice that properly identified the secured creditor. Rather, the loan servicer sent a notice of foreclosure identifying itself as the secured creditor when it was not.

(Punctuation omitted.) Id. at 1271. Like the notice in Stubbs, the notice in this case was sent by the loan servicer, rather than the secured creditor. While a loan servicer may be permitted to send the notice on behalf of the secured creditor, Provident’s fatal mistake was in sending a notice that failed to properly identify the secured creditor. Although the notice disclosed that Provident had the “authority to negotiate, amend and modify all terms of the Note and Security Deed[,]” such “is materially different from disclosing that [the loan servicer] has full authority to modify on behalf of a creditor, ... within whatever guidelines that creditor may have imposed.” (Citations and punctuation omitted.) Id. at 1272. This is especially so when the notice fails to ever identify the true secured creditor. The notice in this case contained material misrepresentations, and we agree with the federal court’s sentiment that “[s]ending a foreclosure notice that misidentifies the secured creditor violates the spirit and intent of OCGA § 44-14-162.2.” (Punctuation and emphasis omitted.) Id.

Indeed, a debtor has a right to know which entity has the authority to foreclose, and there should be no confusion about the identity of that entity. The practical ramifications are troubling if it were otherwise. For example, in a case such as the instant one, where the debtor knows that the loan servicer is no longer the holder of the note or the security deed, it is certainly conceivable that the debtor could be misled or confused by, or simply disregard, a notice of foreclosure which is sent by an entity different from the secured creditor, and which fails to properly identify the secured creditor. The misrepresentation in this case illustrates how transparency can be obfuscated in the Georgia foreclosure process. Finally, a notice that discloses the true identity of the secured creditor is a simple requirement, and one that does not impose an undue burden upon the banks or other entities authorized to send the notice of foreclosure sale.

Foreclosure is typically a very important event for all parties involved. No one disputes that a bank must be able to foreclose on its properties for non-payment of the mortgage per the contract, and our conclusion today does not impede this process. As Provident’s notice of foreclosure failed to comply with the requirements of OCGA § 44-14-162.2, insofar as it failed to properly identify the secured creditor, and in fact misidentified the secured creditor, the foreclosure was invalid, see OCGA § 44-14-162 (a), and the Reeses are entitled to summary judgment on this ground. We therefore reverse the decision below and remand this case with direction to enter summary judgment in favor of the Reeses.

2. In light of our holding in Division 1, we need not consider the Reeses’ remaining enumeration of error.

Judgment reversed and case remanded with direction.

Phipps, P. J., Mikell, P. J., and Doyle, P. J., concur. Andrews, Blackwell and Boggs, JJ., dissent.

Blackwell, Judge, dissenting.

I respectfully dissent. In clear and certain terms, the General Assembly has identified the necessary contents of a statutory notice of foreclosure, including the person whose identity must be disclosed therein. According to OCGA § 44-14-162.2 (a), the statutory notice must disclose the identity of the “individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor.” The statute says nothing at all about any requirement that the notice identify any other person. To the extent that Provident had “full authority to negotiate, amend, and modify all terms of the mortgage with the debtor,” something that the Reeses do not really dispute in this case, the content of the notice complied with the statutory requirements.

The majority concludes, however, that OCGA § 44-14-162.2 requires not only the identification of the person having “full authority to negotiate, amend, and modify all terms of the mortgage with the debtor,” but also the identification of the “secured creditor” itself, at least in a case in which these persons are not one and the same. As I understand its opinion, the majority relies not so much on the words of the statute to reach this conclusion, but instead upon Stubbs v. Bank of America, 844 FSupp.2d 1267 (N.D. Ga. 2012). That reliance is misplaced. In Stubbs, the court looked to the caption of Ga. L. 2008, p. 624, which amended OCGA § 44-14-162.2. From the caption of this legislation, the court found that its “clear purpose” was “to increase transparency and clarity in what can otherwise be a quite bewildering process,” and it concluded that this legislative purpose would best be served by construing OCGA § 44-14-162.2 (a) to mean that the notice must disclose not only the identity of the person identified in the text of the statute, but the identity of the secured creditor as well. See id. at 1269-1273 (IV) (A). The decision in Stubbs, and our decision today, amount to a judicial rewriting of OCGA § 44-14-162.2. Because the courts are without authority to rewrite a statute, I respectfully dissent. See Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946) (“[Appellate courts] must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning”).

Decided July 12, 2012

Reconsideration denied July 31, 2012

David C. Ates, for appellants.

Ellis, Painter, Ratterree & Adams, Sarah B. Akins, for appellee.

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

       The Reeses also alleged a cause of action for wrongful eviction. The trial court granted summary judgment to Provident on that claim. Because the Reeses failed to provide argument or citation of authority as to this claim, they have abandoned any argument that summary judgment on that claim was improper. See Roylston v. Bank of America, N.A., 290 Ga. App. 556, 556, n. 1 (660 SE2d 412) (2008).

       On June 24, 2009, Provident obtained from MERS an assignment of all MERS’s rights, title, and interest in the Security Deed.

       Provident later dismissed the dispossessory action.

       The dissent, however, appears to improperly cherry-pick only the second sentence from OCGA § 44-14-162.2 (a) in order to reach its conclusion that the language of the statute is clear and unambiguous.

       Unlike the dissent, we cannot assume that the legislature rejected the requirement to identify the secured creditor in the enacted statute. The preamble clearly contemplates that the identity of the secured creditor be given in the foreclosure proceedings, which is initiated by the notice. We must rely on the actual statute that was enacted, rather than any proposed bills.

       Relying upon LaCosta v. McCalla Raymer, No. l: 10-CV-1171-RWS, 2011 U. S. Dist. LEXIS 5168 (N.D. Ga. Jan. 18, 2011), Provident argues that OCGA § 44-14-162.2 allows a secured creditor to direct the loan servicer, as its agent, to send the notice of foreclosure. Indeed, in LaCosta, supra, 2011 U. S. Dist. LEXIS 5168, at *11, the Northern District of Georgia held that the goal of OCGA §44-14-162.2 “is to give the debtor notice of the foreclosure sale. Whether that notice is provided by the secured creditor directly, or by its agent, is of no consequence.”

       The dissent concludes that this Court, as well as the Northern District in Stubbs, is attempting to rewrite the statute. Nothing could be further from reality, as the dissent misrepresents the majority opinion. This Court is merely attempting to effectuate not only the legislature’s intent of transparency in the foreclosure process, but also the language of the statute clearly mandating that the foreclosure notice be given to the debtor by the secured creditor. In suggesting that the notice need not disclose the identity of the secured creditor, and can in fact misrepresent the identity of the secured creditor, it would appear that the dissent would permit and excuse material misidentifications and the relay of misinformation in the notice, which is contrary to legislative intent. The policy advocated by the dissent essentially undermines the provision of affording effective and proper notice as required by the statute.

       Apart from the content of the notice, OCGA § 44-14-162.2 (a) also requires that the notice be “given to the debtor by the secured creditor.” But it appears undisputed in this case that Provident sent the notice on behalf of the secured creditor, and it also appears that Provident was authorized to do so as its servicing agent. Georgia law permits, I think, the giving of the notice to be accomplished by an agent of the secured creditor, see LaCosta v. McCalla Raymer, No. 1:10-CV-1171-RWS, 2011 U. S. Dist. LEXIS 5168, *10-11 (II) (B) (i) (N.D. Ga. Jan. 18, 2011), even when the principal remains undisclosed. See generally McDaniel v. Hensons’, Inc., 229 Ga. App. 213, 215 (1) (493 SE2d 529) (1997) (“[A] principal... canbe bound by his agent’s acts, even when the principal remains undisclosed.”).

       When judicial construction of a statute is required, it is permissible to look to the caption of the statute to discern the intent of the legislature. See Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 131 (105 SE 629) (1921). But when the text of the statute is clear and unambiguous, judicial construction of the statute is not permitted, and no inquiry into legislative intent beyond the plain terms of the statute itself is necessary or warranted. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

       In particular, Stubbs noted that, according to the title of the 2008 legislation, it was intended “to provide for the identity of the secured creditor to be included in the advertisement [of foreclosure] and in court records.” Stubbs, 844 FSupp.2d 1267, 1271 (IV) (A). To the extent that the statutes governing the advertisement of foreclosure or the recording of security deeds were ambiguous, perhaps this language might be a helpful interpretative aid. But it is of no help in understanding the meaning of OCGA § 44-14-162.2, which concerns notice of foreclosure, not advertisement or court records.
      And in any event, I note that, when the original version of the 2008 legislation first was introduced in the General Assembly, it proposed to amend OCGA § 44-14-162, the statute governing advertisements of foreclosures, and it proposed to require that the required advertisement “include the identity of the secured creditor” and “the name, address, and telephone number of the party having authority to service the underlying debt.” See SB 531 (LC 33 2521) (2007-2008 Regular Session) (available at http://www.legis.ga.gov/ (visited July 2, 2012)). That proposal, however, was stripped from the legislation by substitution, and the substitute bill was the one ultimately passedby the General Assembly and approved by the Governor. To the extent that a search for legislative intent is appropriate, the legislative history shows not only that the General Assembly knew how to write a statute that requires the identification of the secured creditor, but that it squarely rejected such a requirement when it enacted the 2008 legislation upon which the majority and Stubbs rely.


author: Boggs, Judge.

text:
    A12A0760.
    COOPER/T. SMITH STEVEDORING COMPANY v. STATE OF GEORGIA et al.
    (730 SE2d 168)
   Boggs, Judge.

This is the second appearance of this case before this court. The operative facts are recited in Cooper/T. Smith Stevedoring Co. v. Ga. Ports Auth., 301 Ga. App. 62 (686 SE2d 844) (2009) (hereinafter “CTS ry.

This is a breach of contract action brought by the Georgia Ports Authority [(“the GPA”) and the Georgia Department of Administrative Services (“DAS”)] against Cooper/T. Smith Stevedoring Company, Inc. [“CTS”] and Cooper/T. Smith Corporation^] ... to enforce a contract by which [the] GPA leased a gantry crane to CTS to discharge cargo from a ship berthed at the GPA’s Ocean Terminal located in Savannah in Chatham County. The contract terms are set forth in a document known as GPA Terminal Tariff No. 5 [“the Tariff”], which provided the rates, rules, and regulations governing various services at the Ocean Terminal, including the GPA’s lease of cranes to stevedoring companies for discharge of cargo from ships. It is undisputed that, while CTS was using the crane, it fell over and was destroyed during an attempt to lift cargo from the ship. [ ] The GPA and the DAS sued CTS in the Fulton County Superior Court to enforce contract terms which allegedly made CTS liable for the destruction of the crane and for the cost of replacement. CTS appeals from the superior court’s order granting motions for partial summary judgment in favor of the GPA and the DAS on liability and the measure of damages, and denying CTS’s motion for partial summary judgment on the measure of damages.

Id. In the 2009 appeal, this court held that the trial court “applied only state law to the maritime contract at issue without consideration of federal maritime law,” and remanded the case with direction for the trial court to consider the application of both federal and state law. Id. at 64.

On remand, the trial court found that “the issue [s] presented are inherently local and are to be resolved pursuant to Georgia law.” The court also reaffirmed its earlier ruling granting GPA’s motion for partial summary judgment on the issue of liability on the ground that the crane operator was CTS’s borrowed servant under the Tariff and that CTS was responsible for the operation of the crane under the Tariff. The court also affirmed its earlier ruling granting the GPA’s motion for summary judgment on the measure of damages. CTS now appeals, enumerating several claims of error. For the following reasons, we affirm in part and reverse in part.

1. CTS contends that federal maritime law governs the enforceability of the Tariff because a terminal’s practices and tariffs affect not only local interests, but also interstate and international interests. The trial court found that the Tariff was inherently local because the GPA operates ports for the benefit of Georgia citizens and there is “no federal master tariff governing all U. S. ports.”

“Under the ‘saving to suitors’ clause codified at 28 USC § 1333 (1), state courts have concurrent jurisdiction with the admiralty jurisdiction of federal courts to entertain in personam claims based on maritime causes of action.” (Citations omitted.) CTS I, supra, 301 Ga. App. at 62-63, citing in part, Norfolk Southern R. Co. v. Kirby, 543 U. S. 14, 22-25 (II) (125 SC 385,160 LE2d 283) (2004). While Georgia courts have concurrent jurisdiction over this cause of action, “the extent to which state law may be used to remedy maritime injuries is constrained by a so-called ‘reverse-Erie’ doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards.” (Citations omitted.) Offshore Logistics v. Tallentire, 477 U. S. 207, 223 (IV) (106 SC 2485, 91 LE2d 174) (1986). In CTS I, supra, we held that

[t]he present in personam claim against CTS for money damages is a maritime cause of action because it is based on a contract directly related to a maritime service or transaction — the lease of a crane to a stevedoring company to discharge cargo from a ship berthed at the GPA’s Ocean Terminal.

Id. at 63.

After establishing that the contract here is maritime in nature, the second step is for the court to determine whether the case is inherently local. See Norfolk Southern R. Co., supra, 543 U. S. at 27 (II). “For not every term in every maritime contract can only be controlled by some federally defined admiralty rule. A maritime contract’s interpretation may so implicate local interests as to beckon interpretation by state law.” (Citations and punctuation omitted.) Id.; see Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U. S. 310, 314 (75 SC 368, 99 LE 337) (1955).

The state law involved here is the law of contracts and doctrine of borrowed servant under OCGA § 44-12-62 (b). The GPA alleges that CTS breached the Tariff when the crane it leased to CTS tipped over and was destroyed. The GPA claimed that the crane operator was the borrowed servant of CTS and that because CTS was responsible for the operation of the crane, it was liable for its replacement under the Tariff. CTS counters that the crane operator was the employee of the GPA. In order to sustain a case for breach of contract, the GPA must prove “(1) the terms of a maritime contract; (2) that the contract was breached; and (3) the reasonable value of the purported damages.” (Citation omitted.) Cornish v. Renaissance Hotel Operating Co., 2007 U. S. Dist. LEXIS 95115, *26 (M.D. Fla. 2007).

The state interest here concerns the right of a state agency to seek recovery for the destruction of its land-based property used exclusively at a state port. Certainly there is a strong state interest in resolving a contract dispute between a Georgia administrative agency and a Georgia corporation that involves the loss of equipment located in Georgia, specifically equipment used to load or unload cargo at a Georgia port. The interpretation of this provision of the Tariff is therefore inherently local. See Brewer Environmental Indus. v. Maston Terminals, 2011 U. S. Dist. LEXIS 46429, *9-12 (I) (D. Hawaii 2011) (while contract was a maritime one, no federal preemption where dispute — concerning the sale of stevedoring business and a workers’ compensation policy — was inherently local). The trial court therefore did not err in concluding that the breach of contract action should be resolved pursuant to Georgia law.

2. CTS argues that the trial court erred in applying state law because any state law is preempted by federal law.

Pre-emption may be either expressed or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

(Citations and punctuation omitted.) Gade v. Nat. Solid Wastes Mgmt. Assn., 505 U. S. 88, 98 (II) (112 SC 2374, 120 LE2d 73) (1992); see English v. Gen. Elec. Co., 496 U. S. 72, 78-79 (II) (A) (110 SC 2270, 110 LE2d 65) (1990). CTS argues that any state law is preempted by the Ocean Shipping Reform Act (46 USC § 40101 et seq.) (“the Act”).

While the Act contains no explicit preemptive language, CTS asserts that the following provisions establish both field and conflict preemption: 46 USC § 41102 (c) (“Acommon carrier, marine terminal operator, or ocean transportation intermediary may not fail to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property”), 46 USC § 40501 (g) (3) (“The Commission shall by regulation prescribe the form and manner in which marine terminal operator schedules authorized by this section shall be published”), and 46 CFR § 525.2 (a) (1) (“Any limitations of liability for cargo loss or damage pertaining to receiving, delivering, handling, or storing property at the marine terminal contained in a terminal schedule must be consistent with domestic law and international conventions and agreements adopted by the United States; such terminal schedules cannot contain provisions that exculpate or relieve marine terminal operators from liability for their own negligence . . . .”).

But here, there is neither field nor conflict preemption. Nothing in these provisions of the Act or the Code of Federal Regulations governing ocean shipping is so pervasive as to make an inference that Congress left no room for the States to supplement it with state contract law and the borrowed servant doctrine. Nor does state law stand as an obstacle here to the execution of the purposes of Congress to enforce reasonable regulations and to prohibit terminal operators from relieving themselves of liability for loss or damage to cargo due to their own negligence. CTS points to no other provision of the Act that explicitly or implicitly prohibits the GPAfrom assigning the risk of loss of leased equipment to the lessee. We therefore hold that the Act does not preempt the state breach of contract action here that is based in part on Georgia’s borrowed servant doctrine. See English, supra, 496 U. S. at 80-83 (II) (B) (allegation of outrageous conduct at the hands of employer at the nuclear site not preempted by federal law on nuclear safety); compare Jones v. Compagnie Gen. Maritime, 882 FSupp. 1079, 1082-1083 (III) (A) (S.D. Ga. 1995) (state law preempted when federal act regulates liability of carriers on claims in both tort and contract).

3. CTS claims that the trial court erred in granting the GPA’s motion for partial summary judgment on the issue of liability. On appeal from the grant of summary judgment, we apply a de novo standard of review. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). “[T]he moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also OCGA § 9-11-56 (c).

(a) CTS contends that the crane operator was not its borrowed servant but was rather the employee of the GPA. The trial court ruled that the crane operator was a borrowed servant under the Tariff, and that because the operator did not operate the crane within its capacity and the Tariff provided that CTS as lessee was responsible for the operation of the crane and assumed all risk of damages out of such operation, CTS was liable to the GPA for the loss of the crane.

The relevant portions of the Tariff are as follows:

Rule 34-550
LEASING OF CRANES, CONTAINER-HANDLERS, OR CARGO HANDLING EQUIPMENT
In the case of the container and gantry cranes, or the container-handlers, such equipment will be leased only in support of vessel operations. The lease rates cover the equipment being leased, a qualified operator, and in the case of the cranes, a mechanic, when and as needed.
The operator provided with any leased equipment shall follow the instructions and signals from the lessee. The operator shall provide information to the lessee when requested, but in no way shall such information be considered as instructions or orders.
The lessee agrees to operate the equipment within its rated capacity, which shall be provided by Terminal Management, prior to the use of said equipment. Also, lessee agrees to be bound by the terms and conditions set forth in rule 34-600, entitled “Lessee Responsibility.”
Rule 34-600
LESSEE RESPONSIBILITY
When cranes, hoists,... and other equipment... which are used in the moving or lifting of cargoes (hereinafter called “Leased Equipment”) are leased to others, it is expressly understood that such Leased Equipment will be operated under the direction and control of the Lessee, and the Lessee shall be responsible for the operation thereof and assume all risks for injuries or damages which may arise from or grow out of the use or operation of said Leased Equipment.
Lessee, by acceptance of such Leased Equipment, agrees to fully protect, indemnify, reimburse, and save harmless the [GPA] and its employees against any and all causes of action, suits, claims, damages, and demands, of whatever kind or nature, including claims for consequential property damage, natural resource damage . . . that are incident to or result from the lessee’s operations on the property of the [GPA] and the use of the [GPA’s] facilities (hereinafter “damages”) and shall defend the [GPA] from any legal or equitable action brought against the [GPA] based on said damages... Should said Leased Equipment be damaged or destroyed while so leased (except when caused by natural perils such as windstorm, flood, fire, or earthquake, or by structural failure not resulting from operation of said equipment beyond its rated capacity), Lessee shall pay for all necessary repairs to or replacement of said equipment, but shall not be responsible for damages resulting from loss of use.
This rule is not to be construed as requiring any Lessee to indemnify or hold harmless the [GPA] for that portion or percentage of such losses, if any, caused by the negligence of the [GPA],
It is incumbent upon the Lessee to make a thorough inspection and to satisfy himself as to the physical condition and capacity of the Leased Equipment, as well as the competency of operator (including any operator supplied by the Lessor with said equipment), there being no representations or warranties with reference to such matter.

(Emphasis supplied.)

The Tariff provided that leased equipment “will be operated under the direction and control of the Lessee,” and that the lessee is responsible for the operation of the crane and assumes the risks for damages that arise from the use of it. CTS argues that because the crane was operated by the GPA’s employee, who did not actually operate under CTS’s complete direction and control, it could therefore not be liable for the destruction of the crane. The GPA counters that the crane operator was CTS’s borrowed servant and because CTS was contractually responsible for the conduct of the operator during the crane’s operation, CTS is liable for its replacement.

“The borrowed servant doctrine in Georgia, particularly in conjunction with the hiring of equipment or other personal property, is rooted in statutory law.” Tim’s Crane & Rigging v. Gibson, 278 Ga. 796, 797 (604 SE2d 763) (2004). The doctrine provides that “[i]f the bailor sends his own agents with the thing bailed, the hirer shall not be liable for the acts of such agents but shall only be liable either to the bailor or to third persons for the consequences of his own directions and for gross neglect.” OCGA § 44-12-62 (b). “The reference to the hirer’s ‘own directions’ in OCGA § 44-12-62 (b) refers to the borrowed servant doctrine.” Tim’s Crane, supra.

The requirements for the borrowed servant doctrine to apply are well settled in this state: In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control [;] and (3) the special master had the exclusive right to discharge the servant.

(Citation and punctuation omitted.) Id.

In this case, neither the contract nor the other evidence before the trial court establishes that the crane operator was CTS’s borrowed servant as a matter of law. The GPA relies solely on the following terms of the Tariff to establish that CTS contractually agreed that the crane operator was its borrowed servant: “[t]he lease rates cover the equipment being leased, [and] a qualified operator,” and “[t]he operator provided with any leased equipment shall follow the instructions and signals from the [CTS].” But this language fails to show that CTS had complete control and direction of the crane operator, that the GPA had no such control, and that CTS had the exclusive right to discharge the operator. Compare Tim’s Crane, supra, 278 Ga. at 798 (contract between lessor and lessee explicitly set forth each requirement of borrowed servant doctrine); Odum v. Superior Rigging &c. Co., 291 Ga. App. 746, 749 (662 SE2d 832) (2008).

“In cases where each requirement of the borrowed servant doctrine is not explicitly set forth in an express contract, however, such as the instant case, the relationship between the hirer and the bailor’s employee is generally a question of fact to be decided by a jury.” (Citation omitted.) Coe v. Carroll & Carroll, 308 Ga. App. 777, 781 (1) (709 SE2d 324) (2011). Because the contract here did not establish that the crane operator was a borrowed servant as a matter of law, the trial court erred in granting summary judgment to the GPA on the issue of liability. See id. at 781-782 (1).

(b) CTS argues that summary judgment was improper in any case because the GPA’s negligence contributed to the crane’s collapse. But because we have held that the trial court erred in granting summary judgment to the GPA on the issue of liability, we need not address this claim.

4. While we reverse the grant of summary judgment to the GPA on CTS’s liability in Division 3 (a), we nevertheless address the grant of summary judgment to the GPA on the measure of damages. CTS argues that the proper measure of damages is the fair market value of “a 1963 Diamond Gantry Crane on July 15, 2000,” and that under the terms of the Tariff, “replacement” means “to return GPA to the place it was in immediately before the crane was damaged or destroyed.”

The first rule that courts must apply when construing contracts is to look to the plain meaning of the words of the contract,. .. Words generally bear their usual and common signification; but technical words, words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning.

(Citation, punctuation and footnote omitted.) NWParkway v. Lemser, 309 Ga.App. 172, 176(2) (709 SE2d 858) (2011). Webster’s Unabridged Dictionary (2nd Edition) defines “replace” as “to put again in or restore to a former place,” “to put back or pay back,” or “to fill the place of with a substitute.” And Black’s Law Dictionary (7th ed. 2000) defines “replacement cost” as “[t]he cost of acquiring an asset that is as equally useful or productive as an asset currently held.” Therefore, contrary to CTS’s argument here, the term “replacement” in the Tariff means a substitute crane for the one destroyed, not the fair market value of the crane at the time it was destroyed. The trial court did not err in granting the GPA’s motion for summary judgment on the measure of damages.

5. Relying solely upon Ga. Ports Auth. v. Hutchinson, 209 Ga. App. 726 (434 SE2d 791) (1993), CTS argues that the Tariff’s exculpatory provisions here are contrary to public policy. In Hutchinson, a crane operator controlled by the Georgia Ports Authority dropped a container box on the plaintiff’s hand, injuring him. Id. This court excluded evidence of a tariff which the Ports Authority contended would have proved it did not control the crane and the crane operator, and held that the tariff’s disclaimer was contrary to public policy. Id. at 729 (6). But Hutchinson is silent as to the particular language of the disclaimer in the tariff, and in any case, the Tariff here contains a limitation on the GPA’s disclaimer of liability for its own negligence. Compare, e.g., Country Club Apartments v. Scott, 246 Ga. 443, 444 (271 SE2d 841) (1980) (exculpatory provision for contracting parties’ sole negligence void as against public policy). This claim of error is therefore without merit.

Decided July 9, 2012

Reconsiderations denied July 31, 2012

Mabry & McClelland, James W. Scarbrough, for appellant.

Samuel S. Olens, Attorney General, Nancy M. Gallagher, Assistant Attorney General, Rumsey & Ramsey, Austin L. Ramsey III, Robins, Kaplan, Miller & Ciresi, R. Dennis Withers, for appellees.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Andrews, J., concur.

       Cooper/T. Smith Corporation was later dismissed from the lawsuit without prejudice.

       The evidence showed that the crane tipped over because it was lifting a load that was in excess of its published load capacity.

       The Terminal Tariff was promulgated by the GPA under regulations of the Federal Maritime Commission at 46 CFR Part 525. A stevedoring firm such as CTS consents to the terms of the Tariff by simply using the GPA’s ocean terminal located in Savannah. The GPA is subject to The Shipping Act of 1984 (46 USC § 40101 et seq.) as amendedby the Ocean Shipping Reform Act of 1998, Pub. L. No. 105-258, 112 Stat. 1902 (1998) (“the Act”). See CTS I, supra, 301 Ga. App. at 62, n. 2.

         We note that CTS presented evidence that crane operators are paidhy the GPA, that the GPA makes the final decision to fire or remove operators from a job, that if a stevedore (which directs operators to the ship’s hatch) is dissatisfied with an operator, it must notify the GPAand request a replacement, that the GPA makes the “ultimate decision” whether to remove an operator, and that operators had daily meetings with GPA supervisors and communicated with them hy radio throughout the day.

       The GPA contends that CTS is estopped from claiming that the crane operator was not its employee because of an admission in judicio, “admissions upon which other parties have acted,” and “evidence of a record unreversed” that the crane operator was its employee. See OCGA § 24-4-24 (b) (1), (7) and (8); Reagan v. Lynch, 241 Ga. App. 642, 643-644 (524 SE2d 510) (1999) (outlining elements of judicial estoppel doctrine). The GPA’s argument here is based upon a “[c] ompensation [ojrder” pursuant to the Longshore and Harbor Workers’ Compensation Act, 33 USC § 901 et seq., in which the crane operator’s compensation claim was settled. This order states:
      Pursuant to agreement and stipulation by and between the interested parties, and such further investigation in the above entitled claim having been made as is considered necessary, and no hearing having been applied for by any party in interest, or considered necessary by the District Director, the District Director makes the following:
      FINDINGS OF FACT
      1. On July 15, 2000, the claimant herein, while employed by the employer herein, sustained injury when a crane collapsed and caused his death.
      2. The liability of the employer for compensation under the Longshore and Harbor Workers’ Compensation Act was insuredby American Longshore Mutual Associates.
      3. The parties have agreed on the pertinent issues and desire to settle the claim on the following bases: A lump sum payment of $5,000 to Sarah H. Messex.
      The “agreement and stipulation by and between the interested parties” is not attached to the order, is not a part of the record before us, and its contents are not summarized or explained in the order. While the District Director made a finding that “the claimant herein, while employed by the employer herein, sustained injury,” it is not clear whether this finding was a result of “agreement and stipulation” or “further investigation” by the District Director. See Keenan v. Director for the Benefits Review Bd., 392 F3d 1041, 1043 (III) (9th Cir. 2004) (Longshore and Harbor Workers’ Compensation Act construed broadly and liberally in light of purpose of compensating disabled workers). Three other documents relied on by the GPA and signed by CTS’s attorney, including a party designation in a notice of appearance, a notice of representation, and an “In Re” line of a cover letter cannot be construed as an admission that the crane operator was its employee, neither can a fourth document signedby a claims examiner. The GPA has therefore failed to prove it is entitled to estoppel under any of the theories asserted.