author: REESE, Judge.

text:
    A16A1582.
    ODUOK v. FULTON DeKALB HOSPITAL AUTHORITY et al.
    (797 SE2d 133)
   REESE, Judge.

Proceeding pro se, Inyang Peter Oduok sued the Fulton DeKalb Hospital Authority d/b/a Grady Memorial Hospital (“Grady Hospital”), Emory University (“Emory”), and several healthcare providers for damages allegedly arising from a medical procedure. The trial court dismissed Oduok’s complaint for want of prosecution and failure to complywith the expert affidavit requirement in OCGA § 9-11-9.1 (a). Oduok appeals, and for reasons that follow, we affirm in part, vacate in part, and reverse in part, and remand the case with direction.

We review a trial court’s ruling on a motion to dismiss de novo, construing the complaint and its allegations in the light most favorable to the plaintiff. So viewed, the complaint alleges that in July 2013, Oduok visited a pulmonary clinic operated by Grady Hospital and Emory to follow up on medical tests that showed a mass on his right lung. Oduok underwent a CT scan and, based on those results, a physician, Dr. Ahmed Khan, recommended that Oduok have a CT-guided lung biopsy to determine whether the mass was cancer - ous. Although Oduok was certain that he did not have cancer, he submitted to the biopsy on August 14, 2013.

According to the complaint, Khan and another physician, Dr. Eric Honig, ordered that Oduok be admitted to the hospital following the biopsy to guard against risks associated with a pneumothorax or punctured lung. Oduok, however, was discharged and sent home two hours after the procedure. Shortly after he returned home, Oduok’s lung collapsed, and he was rushed to the hospital for emergency surgery.

On July 30, 2015, Oduok filed his complaint against Grady Hospital, Emory, Dr. Michael Osipow, Dr. Nicholas Levi Henson, Dr. Ahmed Khan, and Dr. Kencliff Palmer, alleging claims for: (1) intentional misrepresentation; (2) violation of the Georgia and federal Racketeer Influenced and Corrupt Organizations (“RICO”) Acts; (3) breach of contract; (4) breach of warranty; (5) promises made without intention to perform; (6) intentional infliction of emotional distress; (7) negligent hiring, retention, and supervision; and (8) negligence. Grady Hospital, Emory, and Osipow subsequently moved to dismiss the complaint. Asserting that each claim rested upon a medical malpractice theory, they argued that Oduok was required — but failed — to support his claims with an expert affidavit pursuant to OCGA § 9-11-9.1 (a). The motion to dismiss also noted that the other defendants — Henson, Khan, and Palmer — had not been served with the complaint.

On October 1, 2015, the trial court held a no-service/default calendar call to address service issues relating to Henson, Khan, and Palmer, as well as Emory Oduok failed to appear, and the trial court dismissed these defendants for want of prosecution, leaving only Grady Hospital and Osipow in the suit. A few months later, the trial court addressed the motion to dismiss filed pursuant to OCGA § 9-11-9.1 (a). Concluding that Oduok’s failure to file an expert affidavit was “fatal to his claims,” the trial court dismissed the complaint against Grady Hospital and Osipow. Oduok moved the trial court to set aside or reconsider both dismissal orders and also requested that the trial judge recuse himself. The trial court denied Oduok’s motions, and this appeal followed.

1. We first consider the trial court’s order dismissing the complaint against Grady Hospital and Osipow. Pursuant to OCGA § 9-11-9.1 (a), a claim alleging medical malpractice must be accompanied by “an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Failure to comply with the affidavit requirement subjects a malpractice claim to dismissal.

As we have noted, however, “not every suit which calls into question the conduct of one who happens to be a medical professional is a medical malpractice action.” We look to the substance of a claim in deciding whether OCGA § 9-11-9.1 (a) applies. The key factor “is the existence or absence of allegations that the defendant-professional has rendered negligent professional services.” Ultimately, when “the failure to do a thing, or the negligent doing of it, is proved by reliance upon a general standard of care or by rules of procedure used by others competently performing the same service, it is a ‘professional’ act or practice.” With these standards in mind, we address each of Oduok’s claims.

(a) Counts 1, 2, and, 6. Liberally construed, Counts 1, 2, and 6 of the complaint appear to allege intentional torts, referring to conduct and statements made by defendants other than Grady Hospital and Osipow. Each claim, however, generally references “defendants,” and the complaint alleges that all defendants “schemed with Grady [Hospital] . . . and intentionally caused its doctors to conduct [a] bogus biopsy on plaintiff against his will to collect a huge sum of money from plaintiff’s insurance.” Specifically, Count 1 asserts that one or more defendants intentionally made false and misleading representations to Oduok regarding his healthcare providers’ qualifications to perform the biopsy and the safety of that procedure. Count 2 alleges RICO violations stemming from these purported falsehoods, as well as other intentional and coercive conduct. And Count 6 asserts a claim for intentional infliction of emotional distress relating to the defendants’ allegedly “outrageous conduct[ ]” before and after the biopsy.

The affidavit requirement in OCGA § 9-11-9.1 applies to professional negligence allegations. It does not reach claims “for intentional misconduct or acts against a professional, including claims for fraud and misrepresentation.” Accordingly, to the extent Oduok asserts that Grady Hospital and Osipow engaged in or are liable for the intentional conduct alleged in Counts 1, 2, and 6, these claims did not require an expert affidavit. Accordingly, the trial court erred in dismissing these claims against Grady Hospital and Osipow.

(b) Count 3. In Count 3, Oduok asserts a breach of contract claim. The basis for this count is not clear, nor is it clear against which defendants Oduok intended to assert this particular claim. Construed liberally, however, Count 3 appears to allege that the defendants — arguably including Grady Hospital and Osipow — breached an agreement (1) to properly perform the biopsy, and (2) to hospitalize Oduok after the procedure to guard against complications.

Again, OCGA § 9-11-9.1 (a) applies to allegations involving professional malpractice, including breach of contract claims. “The determinative factor is whether the task in question requires the exercise of professional judgment and skill.” If the contract claim invokes a “failure to perform professional services in accordance with the applicable standard of care,” an affidavit must be filed. Otherwise, no affidavit is needed.

Given these standards, the trial court properly dismissed Count 3 to the extent it alleges that Grady Hospital and Osipow breached a contract by negligently performing or “botching” the biopsy Such allegations invoke professional judgment and skill, bringing them within OCGA § 9-11-9.1 (a).

Similarly, Oduok’s apparent claim that Grady Hospital and Osipow breached an agreement to admit him to the hospital also depends on whether the failure to hospitalize Oduok breached the applicable standard of medical care. The trial court, therefore, properly dismissed this claim pursuant to OCGA § 9-11-9.1 (a).

(c) Count 4. Count 4 alleges that the defendants breached a warranty to Oduok “by providing [him] a botched biopsy and collapsed lungs that almost resulted in . . . loss of his life.” The claim questions the adequacy of Oduok’s medical treatment, particularly the professional skill and judgment exercised by the defendants. It thus falls within OCGA § 9-11-9.1 (a) and was properly dismissed by the trial court.

(d) Count 5. In Count 5, Oduok alleges that defendant Henson agreed to reduce certain promises to writing, but failed to do so and “had no intention to perform” such promises. Although the title of Count 5 indicates that it was asserted against “Henson and Entity Defendants,” the substantive allegations do not mention any defendant other than Henson or set forth any basis for liability against another defendant. Even construed liberally, Count 5 does not allege a claim against Grady Hospital or Osipow and, thus, the trial court properly dismissed this claim as to them.

(e) Count 7. Count 7 focuses on negligent hiring, retention, and supervision. To the extent this count alleges that Grady Hospital and/or Osipow are vicariously liable for the professional negligence of Oduok’s treating healthcare providers, the trial court properly dismissed the claims for failure to comply with OCGA § 9-11-9.1 (a). Any claims involving negligent supervision over the intentional conduct of these professionals, however, would not require an expert affidavit. The trial court, therefore, erred in dismissing claims against Grady Hospital and Osipow based on a healthcare provider’s intentional conduct.

(f) Count 8. Oduok’s final count sounds in negligence, references the “standard of care,” and alleges that the defendants failed to exercise sufficient skill in performing the biopsy and treating him following the procedure. These allegations clearly allege professional negligence, requiring an expert affidavit under OCGA § 9-11-9.1 (a). Dismissal of Count 8, therefore, was proper.

In summary, as to the defendants Grady Hospital and Osipow, we affirm the dismissal of Counts 3, 4, and 8, due to Oduok’s failure to comply with the affidavit requirements of OCGA § 9-11-9.1 (a), and we reverse the dismissal of Counts 1, 2, and 6, based upon our conclusion that the claims did not require compliance with the affidavit requirements of OCGA § 9-11-9.1 (a). Regarding Count 5, we affirm the trial court’s dismissal as the count does not assert a claim against either Grady Hospital or Osipow. As to Count 7 of the complaint, we affirm the dismissal of the claims to the extent that they alleged that Grady Hospital and/or Osipow were vicariously liable for the professional negligence of the healthcare providers under their supervision, but we reverse the dismissal of the claims to the extent that they seek to hold Grady Hospital and/or Osipow liable for their negligent supervision over the intentional conduct of those healthcare providers.

2. We now turn to the trial court’s order dismissing defendants Emory, Henson, Khan, and Palmer from the suit based upon want of prosecution after Oduok failed to appear at the no-service/default calendar call. In a motion to set aside or to reconsider the dismissal, Oduok asserted that he had not received notice of the calendar call. The trial court denied the motion, concluding that proper notice had been mailed to Oduok and published in the county’s official legal organ.

(a) A trial court “may dismiss without prejudice any civil action, or where appropriate, any pleading filed on behalf of any party upon the failure to properly respond to the call of the action for trial or other proceeding.” Dismissal for failure to attend a calendar call, however, is proper only if the court provided the absent party with notice of the proceeding.

As an initial matter, publication of the default calendar did not provide sufficient notice to Oduok, who is a pro se party. Although publication may constitute notice in certain cases, USCR 8.3 explicitly requires that “[p]ro se parties must be notified [of a trial calendar] by regular mail.” We find that this requirement applies to the no-service/default calendar at issue here. The question becomes, therefore, whether the trial court gave Oduok proper written notice by mail.

The trial court asserted that it had mailed notice of the calendar to Oduok on September 11, 2015, at the post office box listed in the complaint. We typically “take the trial court at its word” in this regard. But the record contains evidence that the trial court did not send the notice to the proper post office box. Specifically, the record contains a photocopy of an envelope with the return address of the Fulton County Superior Court; the face of the envelope is marked “Returned to Sender/Attempted-Not Known.” There is a line drawn through the intended recipient’s address, which is a different address than that provided by Oduok in his complaint. There is also a handwritten note on the envelope which says “Note: Placed in wrong P. O. Box.”

Generally, “[t]here is a presumption that the clerk gave proper notice of the calendar call.” In this case, however, the record contains evidence that rebuts that presumption, and it is unclear whether the trial court considered this evidence. Accordingly, we vacate the trial court’s order dismissing the defendants for want of prosecution and remand for further consideration of whether Oduok received the required written notice of the calendar call.

(b) Although the order dismissing Emory for want of prosecution must be vacated, the record shows that Emory also joined in the motion to dismiss the complaint based upon Oduok’s failure to comply with the affidavit requirements of OCGA § 9-11-9.1 (a). As shown in Division 1, supra, we concluded that the trial court properly dismissed various professional negligence claims against Grady Hospital and Osipow on that basis.

“[W]e will affirm the trial court’s dismissal of the action if it is right for any reason.” Accordingly, having concluded that Oduok’s failure to file an expert affidavit was fatal to Counts 3, 4, and 8 of his complaint, as well as to the professional negligence claims asserted in Count 7, we likewise affirm the dismissal of those claims against Emory.

3. Finally, Oduok argues that the trial judge erred in refusing to recuse himself from the case. Recusal motions are governed by USCR 25, which requires that the motion be accompanied by an affidavit that “fully assert[s] the facts upon which the motion is founded.” Oduok did not submit an affidavit with his motion. Although he filed an unsworn “declaration” purporting to set forth facts supporting recusal, the declaration was legally insufficient to satisfy Rule 25. Accordingly, the trial court properly denied the motion to recuse.

Decided February 13, 2017.

Inyang R Oduok, pro se.

Weathington Smith, Paul E. Weathington, Jesse K. Broocker, for appellee.

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

Dillard, P. J., and Bethel, J., concur.

       According to the defendants, the proper name for this party is Emory University Hospital, rather than Emory University. For ease of discussion, we will refer to this defendant as “Emory.”

        Hobbs v. Great Expressions Dental Centers of Ga., 337 Ga. App. 248 (786 SE2d 897) (2016); Jensen v. Engler, 317 Ga. App. 879 (733 SE2d 52) (2012).

       See OCGA § 16-14-1 et seq.; 18 USC § 1961 et seq.

       Osipow was the attending radiologist responsible for overseeing the lung biopsy.

       The service issues relatingto Emory are unclear. Unlike Henson, Khan, and Palmer, who apparently were never served, Emory admitted in the brief accompanying its motion to dismiss for failure to comply with OCGA § 9-11-9.1 (a) that Oduok served it with the complaint.

       OCGA § 9-11-9.1 (a).

        Crawford v. Johnson, 227 Ga. App. 548, 551 (2) (a) (489 SE2d 552) (1997). We note that, on appeal, Oduok argues that, even if his allegations sound in professional negligence, they do not require an expert affidavit because the defendants’ actions were so “obviously negligent” that expert medical testimony would not be needed. OCGA § 9-11-9.1, however, imposes a pleading requirement that must be followed. See id. The cases Oduok cites to support his argument address the evidence needed to overcome a summary judgment motion, not the OCGA § 9-11-9.1 (a) pleading requirement. See, e.g., Landers v. Ga. Baptist Med. Center, 175 Ga. App. 500, 501-502 (1) (333 SE2d 884) (1985); Terrell v. West Paces Ferry Hosp., 162 Ga. App. 783, 783-784 (1) (292 SE2d 433) (1982).

        Atlanta Women ’s Health Group v. Clemons, 287 Ga. App. 426, 427 (651 SE2d 762) (2007) (footnote omitted).

       Id.

        Crawford, supra (citation and punctuation omitted).

       Id. (citation and punctuation omitted).

       See Health Mgmt. Assoc. v. Bazemore, 286 Ga. App. 285, 287-288 (648 SE2d 749) (2007) (liberally construing allegations in the complaint).

        Hobbs, supra at 248.

       Id. at 249 (emphasis supplied).

         See Labovitz v. Hopkinson, 271 Ga. 330, 337 (519 SE2d 672) (1999) (claim that attorneys “committed intentional acts which caused [the claimant] harm [did] not require [an OCGA] § 9-11-9.1 expert affidavit”); Hobbs, supra (trial court erred in dismissing claim alleging intentional misrepresentation by healthcare provider for failure to file expert affidavit); Crawford, supra at 552 (2) (b) (no expert affidavit requiredfor claims alleging fraud, conversion, and other conduct not involving negligence). Compare Fortson v. Freeman, 313 Ga. App. 326, 327-328 (721 SE2d 607) (2011) (expert affidavit required to support claim that attorney engaged in negligent misrepresentation regarding legal advice).

       The complaint also alleges that defendant Henson breached his oral agreement to “accept full responsibility” if Oduok’s lung collapsed and also failed to reduce that agreement to writing, as promised. These allegations do not implicate Grady Hospital or Osipow.

        Hobbs, supra at 248.

        Nash v. Studdard, 294 Ga. App. 845, 853 (5) (670 SE2d 508) (2008) (citation and punctuation omitted).

        Hobbs, supra at 248 (citation omitted).

        Nash, supra; Hodge v. Jennings Mill, 215 Ga. App. 507, 508 (451 SE2d 66) (1994) (“[T]he affidavit requirements of OCGA § 9-11-9.1 are limited to those claims for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services [in] accordance with the professional obligation of care.”) (citation, punctuation and emphasis omitted).

       See Nash, supra (trial court erred in refusing to dismiss a contract claim involving exercise of professional judgment for failure to comply with OCGA § 9-11-9.1 (a)).

       See Epps v. Gwinnett County, 231 Ga. App. 664, 666 (1) (499 SE2d 657) (1998) (expert affidavit must be filed “where the issue is the defendant’s compliance with or deviation from the applicable standard of professional conduct, which calls for highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence”) (citation and punctuation omitted).

       See id.

        See Epps, supra at 665-666 (1); Sparks v. Kroger Co., 200 Ga. App. 135, 136 (2) (407 SE2d 105) (1991) (trial court properly dismissed breach of warranty claim against pharmacist for failure to comply with OCGA § 9-11-9.1 where claim alleged that pharmacist improperly filled a prescription).

       See Bonner v. Peterson, 301 Ga. App. 443, 445 (1) (687 SE2d 676) (2009) (claim that medical doctor failed to properly supervise or train another physician called into question the doctor’s professional judgment and was thus a professional negligence allegation requiring compliance with OCGA § 9-11-9.1); Upson County Hosp. v. Head, 246 Ga. App. 386, 390 (1) (540 SE2d 626) (2000) (“[T]o the extent that [plaintiff’s] allegation asserts a claim against the hospital based upon the negligent act of a professional using his professional judgment and skill, then [plaintiff’s] failure to file [an OCGA § 9-11-9.1] expert affidavit is fatal to her claim.”); Minster v. Pohl, 206 Ga. App. 617, 621 (4), n. 1 (426 SE2d 204) (1992) (“OCGA § 9-11-9.1 applies to a hospital when it is sued under a theory of respondeat superior for the professional negligence of its employee nurse.”) (emphasis supplied).

       See Labovitz, supra (expert affidavit requirement does not apply to allegations based on intentional torts).

       See id.

       See Epps, supra.

       Id.

       Uniform Superior Court Rule (USCR) 14. See also Maupin v. Vincent, 245 Ga. App. 635, 635-636 (1) (538 SE2d 529) (2000) (trial court has authority to dismiss claim without prejudice for failure to appear at pre-trial hearing).

        Edens v. O’Connor, 238 Ga. App. 252 (1) (519 SE2d 691) (1999); see also Randall v. Randall, 274 Ga. 107, 109 (2) (549 SE2d 384) (2001) (“Compliance with the notice requirement is mandatory, not discretionary.”) (citation omitted).

       See Hammonds v. Sherman, 277 Ga. App. 498, 498-499 (627 SE2d 110) (2006). But see Edens, supra (“Publication of notice of a motion hearing date is not, by itself, sufficient).]”) (punctuation omitted).

       See OCGA §§ 9-11-6 (d) (generally, written notice of a motion hearing must “be served not later than five days before the time specified for the hearing”); 9-11-5 (b) (“Service upon the attorney or upon a party shall be made by delivering a copy to the person to be served or by mailing it to the person to be served at the person’s last known address or, if no address is known, by leaving it with the clerk of the court.”).

        Atlanta Bus. Video v. FanTrace, LLC, 324 Ga. App. 559, 560 (751 SE2d 169) (2013) (footnote omitted).

         Hammonds, supra at 498.

       See USCR 8.3; Edens, supra (trial court erred in refusing to set aside order entered following hearing held without notice to complaining party); King v. Bd. of Regents, 215 Ga. App. 570, 571 (451 SE2d 482) (1994) (trial court erred in refusing to set aside order dismissing complaint entered after plaintiff failed to attend hearing about which he had insufficient notice). Compare Atlanta Business Video, supra at 560-561 (trial court did not err in dismissing complaint after plaintiff failed to appear at calendar call; although plaintiff’s attorney asserted that he did not receive notice of the proceeding, the trial court found that notice had been properly mailed, the record did not show otherwise, and other factors indicated that counsel knew about the calendar call); Hammonds, supra at 498-499 (dismissal based on plaintiff’s absence from calendar call proper where plaintiff failed to show that she did not receive notice).

        Worley v. Winter Constr. Co., 304 Ga. App. 206, 207 (1) (695 SE2d 651) (2010) (footnote omitted).

       See id.

       USCR 25.1.

        See Post v. State, 298 Ga. 241, 243 (1) (779 SE2d 624) (2015) (“To be legally sufficient, an affidavit accompanying a recusal motion must contain the three elements essential to a complete affidavit: (a) a written oath embodying the facts as sworn by the affiant; (b) the signature of the affiant; and (c) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer.”) (citation and punctuation omitted); Savage v. State, 263 Ga. App. 180, 184 (5) (587 SE2d 294) (2003) (absence of affidavit is fatal to motion to recuse); Dodson v. Dean, 256 Ga. App. 4, 6-7 (567 SE2d 348) (2002) (affidavit that was not notarized was legally insufficient to support motion to recuse).

       See Savage, supra; Dodson, supra.


source: Caselaw Access Project

author: MERCIER, Judge.

license: Public Domain

text:
    A16A1670.
    NADEL et al. v. BRANCH BANKING AND TRUST COMPANY.
    (797 SE2d 140)
   MERCIER, Judge.

This Court granted Bruce Nadel’s and Brett Nadel’s application for discretionary review of the trial court’s order denying their motion to set aside an order confirming a non-judicial foreclosure sale. Because the evidence does not establish that Branch Banking and Trust Company (“BB&T”) provided the Nadéis with the required notice of the rescheduled confirmation hearing, we reverse.

Bruce and Brett Nadel are, respectively, the borrower and guarantor on a commercial loan that BB&T made in 2005. The loan was secured by a parcel of real estate, and the security deed authorized a non-judicial foreclosure sale of the property in the event of default. According to BB&T, Bruce Nadel defaulted, BB&T auctioned the property at a public foreclosure sale in November 2013 for less than the amount owed, and a deficiency resulted. BB&T thereafter filed an application for confirmation and approval of the foreclosure sale.

The First Notice of the Confirmation Hearing. In January 2014, the trial court issued a notice that the confirmation hearing would be held on May 7, 2014, and directed that the notice and confirmation application be served on the Nadeis as required by law. On February 19, 2014, BB&T personally served guarantor Brett Nadel with the application and notice at his residence — 4502 Old Mabry Place in Roswell, Georgia (the “Old Mabry Place address”). BB&T attempted to serve borrower Bruce Nadel at a former business address — 8380 SW 124th Street in Miami, Florida (the “124th Street address”)—but determined that he no longer had an office there. On April 26, 2014, BB&T served Bruce Nadel with the application and notice at his residence — 5941 SW 96th Street in Miami, Florida (the “96th Street address”); the 96th Street address was listed on the promissory note as Bruce Nadel’s address. The 124th Street address had been printed on the affidavit of service for Bruce Nadel, but it was crossed out and replaced in handwriting with the 96th Street address.

The Notice of Continuance. Later that month, BB&T sent the Nadéis letters stating that the hearing scheduled for May 7 had been continued and that they would be informed of the new hearing date when it was rescheduled. The letter to Brett Nadel was addressed to the Old Mabry Place (correct) address, and the letter to Bruce Nadel was addressed to the 124th Street (wrong) address.

The Notice of the New Hearing Date. On May 9, 2014, the trial court issued a notice that the rescheduled confirmation hearing would be held on July 9, 2014. The distribution list for the court’s notice listed both of the Nadéis at the 124th Street address, and did not include the addresses at which Bruce or Brett Nadel had been served with the first hearing notice. A draft of the cover letter which BB&T’s legal counsel averred by affidavit was “to be sent” to the Nadéis notifying them of the reset hearing date was addressed only to Bruce and contained the 124th Street (wrong) address; the exhibit that the affiant stated contained copies of the drafts of the letters sent to the “Respondents” (Exhibit G) included no letter to Brett Nadel. BB&T’s counsel averred that the final drafts of the cover letters “would have been sent to” Bruce and Brett Nadel at their correct addresses, though copies of drafts with the correct addresses “could not be located.”

The Hearing and the Confirmation Order. The Nadeis did not appear at the July 9 hearing, and the trial court entered an order confirming the foreclosure sale on July 14, 2014. The court’s distribution list for the confirmation order listed Bruce Nadel at the 124th Street address and Brett Nadel at the Old Mabry Place address.

The Motion to Set Aside. In March 2015, the Nadeis moved to set aside the confirmation order on several grounds, including that no notice of the July 9 hearing had been sent to them. BB&T opposed the motion. The court denied the motion, determining that: (i) the Nadeis had pointed to no defect apparent on the face of the record showing that they had not been properly served by the court with the notice of the reset hearing; and (ii) regardless, they had received actual notice of the reset hearing from BB&T.

OCGA § 9-11-60 (d) authorizes a trial court to set aside its judgment on certain limited grounds, including “[a] nonamendable defect which appears upon the face of the record or pleadings.” OCGA § 9-11-60 (d) (3). This Court reviews a trial court’s ruling on a motion to set aside a judgment under OCGA § 9-11-60 (d) for abuse of discretion. Moore v. Davidson, 292 Ga. App. 57, 58 (663 SE2d 766) (2008). “The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them.” Belans v. Bank of America, 303 Ga. App. 35, 39 (2) (692 SE2d 694) (2010) (citation and punctuation omitted).

In foreclosure-sale confirmation proceedings, “[t]he court shall direct that a notice of the [confirmation] hearing shall be given to the debtor at least five days prior thereto.” OCGA § 44-14-161 (c).“[W]ritten notice[ ] [is] authorized to be made by mail in accordance with OCGA § 9-11-5 (b)” Belans v. Bank of America, 309 Ga. App. 208, 210 (1) (709 SE2d 853) (2011) (citation omitted). OCGA § 9-11-5 (b) pertinently provides that service by mail is made by mailing a copy to the person at the person’s last known address. “Compliance with the notice requirement of OCGA § 9-11-5 (b) is mandatory, not discretionary” Sprint Transp. Group v. China Shipping NA Agency, 313 Ga. App. 454, 456 (721 SE2d 659) (2011) (citation and punctuation omitted). BB&T agrees that it was required to serve the Nadeis by mail in accordance with OCGA § 9-11-5 (b). An order that is based on a hearing and entered against a party without notice to that party of the hearing is subject to a motion to set aside on the ground of a non-amendable defect where the lack of notice appears on the face of the record. Brown v. Citizens & Southern Nat. Bank, 245 Ga. 515, 517-518 (265 SE2d 791) (1980); Moore, 292 Ga. App. at 58, 60. “[B]efore any presumption arises that a letter has been received through the mails it must be shown that the letter (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office.” Shelton v. Rodgers, 160 Ga. App. 910, 912 (288 SE2d 619) (1982) (citation and punctuation omitted).

1. The Nadéis contend that the trial court erred by denying their motion to set aside the confirmation order because no evidence supported the trial court’s finding that BB&T served them with the required notice of the new hearing. We agree.

The proper service addresses for the Nadéis were made part of the record when affidavits of service were filed as to BB&T’s application and the court’s notice of the May 7 confirmation hearing. The record shows that Bruce Nadel’s last known address was on 96th Street, and that Brett Nadel’s last known address was on Old Mabry Place. Yet, the record shows that the notice from the court was mailed to the Nadéis at the 124th Street address — an address BB&T has conceded was not the correct address. And the only purported notice from BB&T to the Nadéis was a draft of a letter, addressed only to Bruce Nadel, at the wrong address. BB&T has shown no other evidence that the notices were written, properly addressed and duly mailed to the Nadéis. Under the circumstances, a non-amendable defect appears on the face of the record.

Nonetheless, BB&T argues that the evidence was sufficient to show that it mailed notice of the July 9 hearing to the Nadeis as required by OCGA § 9-11-5 (b). BB&T points to the affidavit from an attorney employed by the law firm that represented BB&T as evidence that notice of the reset hearing was mailed to the Nadéis at their correct addresses. But the affidavit does not contain such evidence. Instead, the attorney averred that, in accordance with the law firm’s normal business policy and procedure, the draft of the cover letter prepared by an assistant and forwarded to her informing the Nadéis of the hearing “would have been finalized and sent” to them, and that the final drafts “would have been sent to” the Nadéis at their correct addresses. The draft letter is addressed to Bruce Nadel at the incorrect address (124th Street). And an e-mail states that the paralegal “will prepare” a letter notifying Brett Nadel of the hearing. Counsel for BB&T added, “[f]or unknown reasons,” copies of the final drafts of the letters sent to the Nadéis could not be found. Despite the affidavit’s vagueness, BB&T submitted no other evidence showing that notice regarding the July 9 hearing had in fact been sent to either of the Nadéis at the correct addresses.

The Nadéis are correct that no evidence supported the trial court’s finding that BB&T’s counsel provided them with notice of the July 9 hearing, given: (i) BB&T’s counsel’s speculation about what “would have been” done; (ii) counsel’s incorrectly addressed draft letter; and (iii) BB&T’s failure to produce certificates of service, copies of the final versions of the letters, or any other evidence of proper mailing. See Belans, 303 Ga. App. at 39 (2); Shelton, 160 Ga. App. at 912. Notably, while BB&T argues that the Nadéis were obligated to inform the court that their addresses had changed, it points to no evidence that the Nadéis’ addresses in fact changed while the confirmation proceeding was pending (i.e., that the Nadéis’ “last known address [es] ” were other than the addresses at which they were served with the first hearing notice).

Decided February 13, 2017.

Richard S. Alembik, for appellants.

Quirk & Quirk, Debra E. Baker, Kathryn E. Baird, for appellee.

Finally, whether the Nadéis had actual knowledge of the confirmation proceeding is of no consequence, as “actual notice or knowledge will not cure the failure to comply with the statute as to confirmation. A party is not bound by every court proceeding of which he has knowledge.” Ameribank, N.A. v. Quattlebaum, 269 Ga. 857, 859 (505 SE2d 476) (1998) (citations and punctuation omitted); see also First Nat. Bank & Trust Co. v. Kunes, 230 Ga. 888, 889 (199 SE2d 776) (1973) (the guarantor is entitled to the same legal protection as the debtor). “We decline to sanction substantial compliance or to adopt a harmless error rationale in this case of procedural violation of the confirmation statute. Either posture is contrary to the required strict construction of the statute.” Ameribank, 269 Ga. at 859-860. Inasmuch as no evidence established that BB&T gave the Nadels the required notice of the hearing date, the court abused its discretion in denying the motion to set aside the judgment. See Moore, 292 Ga. App. at 60; Pine Grove Builders v. SunTrust Bank, 307 Ga. App. 764, 766 (1) (706 SE2d 129) (2011) (“Where there has been no legal service or waiver of service [of notice of a confirmation hearing], the court’s judgment is null and void.”) (citation and punctuation omitted).

2. We do not address the Nadéis’ contention set out in their initial appellate brief — that the law required the hearing notice to have emanated from the trial court (as opposed to having emanated from BB&T). The Nadéis implicitly concede the point in their appellate reply brief, stating that the issue is pretermitted by the issue of whether there was sufficient evidence that BB&T proved that it properly mailed the notices of the reset hearing to the Nadeis with the second hearing notice (addressed in Division 1, supra). Nor do we address BB&T’s assertion that the Nadéis have admitted the facts required to be established in a confirmation action by failing to respond to BB&T’s requests for admissions, inasmuch as the assertion has no bearing on the threshold issue of proper notice. Further, BB&T failed to raise the issue before the trial court, so it is not properly before the Court. See Capital Land USA v. Mitsubishi Motors Credit of America, 308 Ga. App. 71, 73-74 (3) (706 SE2d 590) (2011).

Judgment reversed.

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


author: Self, Judge.

text:
    A16A2228.
    WATKINS v. THE STATE.
    (797 SE2d 144)
   Self, Judge.

Michael Watkins appeals from the trial court’s denial of his motion for an out-of-time appeal. He contends that he was denied his right to an appeal because he was not adequately advised about his appeal right and his trial counsel failed to preserve his right to an appeal. For the reasons explained below, we vacate the trial court’s order and remand with direction.

“The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion.” (Citation and punctuation omitted.) Smith v. State, 263 Ga. App. 414, 417 (1) (587 SE2d 787) (2003). The record shows that on January 15, 2015, a jury found Watkins guilty of possession of more than an ounce of marijuana, and the trial court sentenced Watkins to ten years imprisonment after the State presented evidence of four prior felony convictions. After sentencing Watkins, the trial court informed him: “If you wish to file a Writ of Habeas Corpus this needs to be filed within four years of this conviction becoming final. You do have a right of appeal. Any appeal needs to be filed within 30 days of today’s order [, January 15, 2015].”

On February 5, 2015, Watkins filed a pro se motion for a free trial transcript, as well as his discovery package, even though his retained trial counsel had not withdrawn from the case. On February 19, 2015, after the time for filing a direct appeal had expired, the trial court wrote a letter to Watkins stating: ‘Your trial attorney . . . has the discovery package and you should obtain it from him. The trial transcript is not yet prepared. However you had retained counsel and there is no appeal pending, so you would not be entitled to a free copy at this time.”

On February 27, 2015, a new attorney entered an appearance on Watkins’ behalf and filed a motion for an out-of-time appeal. On March 4, 2015, a “Circuit Defender Administrator/Designee” issued a “Certificate of Indigency” stating: “Upon consideration of the Application for Appointment of Counsel, the above-named defendant is found to be indigent under criteria of the Georgia Public Defense Standards Council, Federal Poverty Guidelines and appropriate court rules, and is entitled to have appointed counsel.”

In his motion for an out-of-time appeal, Watkins asserted that his trial counsel failed to preserve his right to an appeal, that his pro se requests for transcripts provided evidence of his desire for an appeal, and that the State did not oppose the grant of an out-of-time appeal. In the hearing on his unopposed motion, Watkins presented minimal evidence to support his claim that he was entitled to an out-of-time appeal.

Trial counsel testified that he was “[o]riginally” only “partially retained” to represent Watkins. He denied that he was retained to handle an appeal, but admitted that he did not withdraw after Watkins was sentenced, that he did not file a motion for new trial or notice of appeal, and that he assumed he was still the attorney of record unless someone else stepped in. He also acknowledged that he had an obligation as a criminal defense lawyer to look out for his client’s best interest generally. Trial counsel was not asked and provided no information about whether he advised Watkins that he had the right to appointed counsel to handle an appeal if he was indigent. Likewise, he was asked no questions about whether or to what extent he discussed Watkins’ desires regarding an appeal.

Watkins testified that he wanted to file a motion for new trial and never told his retained trial counsel “not to file a motion for new trial in [his] behalf.” Watkins provided no information about whether he was informed about a right to appointed appellate counsel if he could not afford one. Finally, he did not testify about when he first sought appointed counsel to represent him in connection with this out-of-time appeal.

The trial court denied Watkins’ motion for out-of-time appeal based upon its conclusion that “[t]rial counsel was not required to file an appeal for which he had not been retained” and a finding that Watkins “did not testify that he had made any overt act to pursue his appeal. The Defendant did not show that he had contacted any lawyer to represent him on appeal, not even his retained [trial] counsel. He showed absolutely no attempt to file any appeal at all.” In the trial court’s view, “[t]he failure to perfect the appeal was solely caused by the Defendant and his failure to act.”

Out-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. Thus, an out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel.

(Citation and punctuation omitted.) Wetherington v. State, 296 Ga. 451, 453 (1) (769 SE2d 53) (2015). Accordingly, Georgia law “permits out-of-time appeals if the defendant was denied [his] right of appeal through counsel’s negligence or ignorance, or if the defendant was not adequately informed of [his] appeal rights.” Smith, supra, 263 Ga. App. at 416 (1). “When a court considers a claim in connection with a motion for out-of-time appeal that a defendant was denied effective assistance, the court usually will apply the familiar standard of Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).”Mims v. State, 299 Ga. 578, 579 (1) (787 SE2d 237) (2016). “An out-of-time appeal is not authorized in every criminal case which involves a failure by counsel to comply with the applicable procedures necessary to invoke [the appellate court’s] jurisdiction.” Porter v. State, 271 Ga. 498, 499-500 (521 SE2d 566) (1999).

If a convicted party by his own conduct, or by his conduct in concert with that of his attorney, purposefully delays the appeal of his conviction to his own advantage, he forfeits appeal and review of his conviction on the merits by an appellate court. An out-of-time appeal is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant himself slept on his rights.

(Citation and punctuation omitted.) Smith, supra, 263 Ga. App. at 416 (1). “In other words, ineffective assistance of counsel must be the sole reason for the failure to file the appeal. . . Moore v. State, 304 Ga. App. 105, 106-107 (695 SE2d 661) (2010). Therefore, “[t]he disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.” Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997).

Watkins asserts that the trial court erred by denying his motion for an out-of-time appeal because: (1) nothing in the record shows that either the trial court or his trial counsel informed him that he was entitled to appointed counsel if he could not afford one; and (2) retained counsel took no steps to preserve his right to appeal, even though counsel did not withdraw his representation during the 30-day period following entry of Watkins’ sentence.

1. We find no merit in Watkins’ assertion that he is entitled to an out-of-time appeal because the trial court failed to advise him that he had the right to appointed appellate counsel if he could not afford one.

[W]here a defendant retains trial counsel and then claims indigence on appeal, he bears the burden of making that fact known to the trial court or some responsible state official. If the trial court has no reason to believe that the defendant is indigent and cannot afford the services of retained counsel for the purpose of appeal, it is under no duty to inquire as to the defendant’s indigence and may presume that his retained counsel will protect his appellate rights.

(Citations and punctuation omitted.) Seay v. State, 220 Ga. App. 418, 419 (469 SE2d 496) (1996). See also Massey v. State, 278 Ga. App. 303, 305-306 (2) (628 SE2d 706) (2006). As Watkins was represented by retained counsel at the time of sentencing, his attorney, not the trial court, had the duty to inform Watkins of his “right to counsel on appeal (including the right to appointed counsel for indigent defendants).” (Citation and punctuation omitted; emphasis in original.) Hill v. State, 285 Ga. App. 310, 311 (2) (645 SE2d 758) (2007). See also Bell v. Hopper, 237 Ga. 810, 810-811 (229 SE2d 658) (1976); Jayko v. State, 335 Ga. App. 684, 686-687, n. 2 (782 SE2d 788) (2016).

While this Court sometimes looks at whether a trial court advised a represented defendant about the right to appointed counsel if he or she could not afford one, in doing so, we are, in essence, analyzing the prejudice prong of an ineffective assistance of counsel claim under Strickland, supra. See, e.g., Wimmer v. State, 323 Ga. App. 820 (748 SE2d 297) (2013); Yoder v. State, 247 Ga. App. 272, 273 (543 SE2d 784) (2000). For example, in Hill, supra, we found that “trial counsel did not fulfill her duty to ... fully inform [the defendant] of his appeal rights before ceasing her representation.” 285 Ga. App. at 311 (2). But based upon the particular record before us in Hill, we remanded the case to the trial court

for a determination of whether the trial court advised appellant fully of his rights regarding appeal and of whether appellant was at the time of his conviction an indigent person who could qualify for appointed counsel. If the trial court finds that [the defendant] was indigent at the time of his conviction and that the trial court did not fully advise [the defendant] of his rights regarding appeal, the trial court is directed to authorize [the defendant’s] out-of-time appeal.

(Citations and punctuation omitted.) Id. at 312 (2).

However, none of our statements in Hill, supra, should be construed as imposing a mandatory obligation upon trial courts to inform every defendant represented by retained counsel that he has a right to appointed appellate counsel in the event of indigence. Nor does it stand for the proposition that represented defendants are automatically entitled to an out-of-time appeal if the trial court fails to inform them of their right to appointed counsel in the event of indigence. If trial counsel fulfills his or her duty to so inform the defendant, it is irrelevant whether the trial court provided the same information. On the other hand, if trial counsel fails to adequately advise a defendant about his appeal rights, no harm results if the trial court elected to provide the information.

2. Having concluded that the trial court’s failure to advise Watson does not entitle him to an out-of-time appeal, we must now examine whether trial counsel fulfilled his duty to adequately inform Watson of his appeal rights. The record in this case is silent as to whether Watkins’ trial counsel informed him of his right to appointed counsel if he could not afford one. In the absence of evidence showing that Watkins’ attorney advised him that he was entitled to an appointed attorney if he was indigent, the trial court’s finding that Watkins was ultimately responsible for the failure to file a timely appeal was premature. See Thorpe v. State, 253 Ga. App. 263, 264 (558 SE2d 804) (2002) (remanding case because trial court failed to make factual inquiry into whether defense counsel informed defendant of his appeal rights). Accordingly, we remand this case for a determination as to whether Watkins’ counsel informed him of this right and Watkins nonetheless failed to take appropriate action to preserve his right to a direct appeal. See Cannon v. State, 175 Ga. App. 741, 742-743 (334 SE2d 342) (1985) (remanding case for second hearing and additional findings on dispositive issue of who bore ultimate responsibility for failure to file a timely appeal). If trial counsel did not advise Watkins about his right to appointed counsel, the trial court is directed to grant Watkins’ motion for an out-of-time appeal. If Watkins’ attorney did so advise him, the trial court should conduct an additional inquiry into whether Watkins thereafter slept on his right to appointed counsel and a direct appeal.

3. Watkins’ remaining arguments on appeal are rendered moot by our holding in Division 1.

Decided February 14, 2017.

Mitchell D. Durham, Raina J. Nadler, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Barnes, P. J., and Rickman, J., concur.

       Because a copy of Watkins’ applicationfor appointed counsel does not appear in the record before us, we cannot determine the date on which Watkins submitted the application.

       Defendants make numerous decisions based upon information provided solely by their attorneys in the course of a criminal prosecution without input or advice from the trial court. For example, trial “[cjourts . . . have no duty to advise a defendant of the right to testify or to determine on the record whether the defendant’s decision is voluntary, knowing, and intentional.” (Citation and punctuation omitted.) Williams v. State, 292 Ga. 844, 854(3) (i) (742 SE2d 445) (2013).


author: McFADDEN, Presiding Judge.

text:
    A16A1629, A16A1630.
    CITY OF EAST POINT v. YOUNG; and vice versa.
    (797 SE2d 166)
   McFADDEN, Presiding Judge.

Lillian Young contends that, by repeatedly driving a garbage truck on a driveway to an apartment complex she had owned, the City of East Point damaged it. Both Young and the city moved for summary judgment. The trial court denied Young’s motion and partially granted the city’s. Young appealed, and the city cross-appealed.

We agree with the trial court that the city is entitled to summary judgment on Young’s negligence, negligence per se, and trespass claims. And the trial court correctly denied Young’s motion for summary judgment on her nuisance claim.

We do not reach the city’s cross-appeal. The city argues that, because Young failed to produce evidence of damages, it is also entitled to summary judgement on her nuisance claims and her inverse condemnation claim. But the trial court did not address that argument.

We therefore affirm the judgment of the trial court in both the main appeal and cross-appeal.

1. Background.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). This [c]ourt applies a de novo standard of review to an appeal from a grant of summary judgment and we view the evidence in the light most favorable to the nonmovant.

Davis v. Overall, 301 Ga. App. 4, 5 (686 SE2d 839) (2009) (citation omitted).

So viewed, the record shows that Young owned a 20-unit rental property in the City of East Point from February 2007 until July 2012, when she lost it in foreclosure. She alleged that the City of East Point repeatedly drove a garbage truck on one of the property’s three driveways, causing the condition of the driveway to deteriorate until it became unusable. She alleged that she notified the city of the problem, but city employees continued to drive the garbage truck on the driveway She alleged that the condition of the driveway caused tenants to fail to renew their leases and potential tenants to decide not to lease apartments in her property She alleged that the resulting decline in her rental income caused her to lose the property in foreclosure.

She filed this action, asserting claims of negligence, negligence per se, trespass, nuisance, and inverse condemnation. The parties moved for summary judgment. The trial court granted the city summary judgment on Young’s claims of negligence, negligence per se, and trespass, ruling that the city was entitled to sovereign immunity It denied both parties’ motions for summary judgment on the nuisance claim, finding that whether the city maintained a nuisance, whether its actions caused an injury, and whether Young gave notice were triable issues of fact. The trial court denied the city’s motion for summary judgment on Young’s inverse condemnation claim, finding that it, too, depended on triable issues of fact. Young appealed, and the city cross-appealed.

2. The grant of summary judgment to the city on Young’s negligence, negligence per se, and trespass claims.

Young argues that the trial court erred in granting summary judgment to the city on her claims for negligence, negligence per se, and trespass. She argues that, contrary to the trial court’s ruling, the city operated its sanitation service as a proprietary venture, excepting it from sovereign immunity. The trial court did not err.

Generally, a municipality is immune from liability for its performance of governmental functions, which are defined as “those of a purely public nature, intended for the benefit of the public at large, without pretense of private gain to the municipality.” City of Atlanta v. Mitcham, 296 Ga. 576, 577-578 (1), (2) (769 SE2d 320) (2015). In comparison, a municipality may be liable for the negligent performance of its ministerial functions, which are defined as “those involving the exercise of some private franchise, or some franchise conferred upon [the municipality] by law which it may exercise for the private profit or convenience of the [municipality] or for the convenience of its citizens alone, in which the general public has no interest.” Id. at 578 (1), (2) (citation, punctuation and footnote omitted).

A municipality’s collection of garbage generally “is a governmental function, for the performance of which [it] is granted immunity from liability for the negligent acts of its officers and employees.” City of Atlanta v. Chambers, 205 Ga. App. 834, 835 (2) (424 SE2d 19) (1992) (citation and punctuation omitted). Young relies on an exception to this general rule, which

may arise where a city operates a garbage collection service primarily as a business enterprise and source of revenue, rather than primarily as a public service. . . . Whether the enterprise turns a profit... is not the controlling point; what is significant is the character of the enterprise as primarily a source of revenue rather than being used primarily for the benefit of the public regardless of incidental generation of revenues.

Id. at 835-836 (2) (citations and punctuation omitted).

The city made a sufficient showing under the rule set out in Chambers. It introduced the affidavit of Charles Moore, the city’s solid waste manager, who testified that the city operates its garbage collection service as a public service, not as a proprietary endeavor. Moore stated that 100 percent of the garbage collection fees are used to off-set the expenses of running the solid waste department and that the fees do not constitute a revenue source for the city. Although Young moved to strike Moore’s affidavit as based on speculation and hearsay, she has pointed to no trial court ruling on her motion. In any event, her objection went to Moore’s testimony about the department finances, not his testimony about the department’s character in operating as a public service.

To support her argument that an issue of fact exists as to whether the city’s sanitation service is a profit-making business enterprise, Young points to an annual financial report in which the solid waste fund is listed under the category heading “proprietary funds.” Assuming that this document is admissible and that its use of the phrase “proprietary funds” could support the inference Young would draw, it is nevertheless insufficient to create a question of fact because it does not contradict Moore’s unambiguous testimony that the city operates its garbage collection service as a public service, that garbage collection fees are exclusively used to off-set the expenses of providing the garbage collection service, and that the fees do not constitute a revenue source for the city.

So Young has not shown that the trial court erred in ruling that “the [cjity’s garbage collection service is a governmental function, and the [c]ity is protected by sovereign immunity from [Young’s] negligence, negligence per se and trespass claims.”

Young also argues that by continuing to enter her property, the city violated her “due process and just compensation rights under Eminent Domain and the Constitution,” thereby waiving immunity. This simply restates her still-pending claim for compensation for inverse condemnation. It does not state a basis for waiving sovereign immunity

Young has failed to show that the trial court erred in determining that the city is entitled to immunity on her claims for negligence, negligence per se, and trespass.

3. The denial of Young’s motion for partial summary judgment on her nuisance claim.

Young argues that the trial court erred in denying her motion for partial summary judgment on the issue of the city’s liability on her nuisance claim because the material facts are undisputed. The trial court correctly denied the motion.

To state a claim of nuisance against a municipality, a plaintiff must establish that (1) the city’s conduct was egregious enough to exceed mere negligence, (2) the resulting continuous or repetitious dangerous condition was of some duration, and (3) the city failed to correct the danger within a reasonable time after acquiring knowledge of the defect or dangerous condition.

City of Atlanta v. Landmark Environmental Indus., 272 Ga. App. 732, 733 (1) (613 SE2d 131) (2005) (citation omitted).

The evidence in support of Young’s nuisance claim shows that twice a week from April 2010 to July 2012 — even after she told them to stop — the city’s employees came onto her property with a garbage truck, damaging a concrete driveway and so causing her discomfort, loss of peace of mind, and unhappiness. The trial court found that evidence sufficient to overcome the city’s motion for summary judgment. But he also found that the city “provided ample evidence to create a triable issue of fact as to whether or not the [cjity created and maintained a nuisance . . . We agree.

The city introduced the affidavit of the primary driver of the city garbage truck that serviced Young’s property He testified that he never used the concrete driveway at issue, but instead used a different, sturdier driveway. The city also introduced the affidavit of the superintendent of the city’s sanitation department, who testified that the city did not use the concrete driveway to access Young’s dumpster. He admitted that he could not explain a photograph that showed a sanitation truck on the concrete driveway because that “was never the assigned route to access the dumpster.”

Young argues that these affidavits do not create a question of fact because the affiants’ testimony is false. But the trial court denied Young’s motion to strike the affidavits on this ground, and Young has not enumerated that ruling as error. We agree with the trial court that whether the city created and maintained a nuisance is a disputed question of fact.

Decided February 15, 2017.

4. The denial of the city’s motion for summary judgment on Young’s nuisance and inverse condemnation claims.

The city argues that it is entitled to summary judgment on Young’s nuisance and inverse condemnation claims because Young has presented no evidence of damages. The city raised this argument in its motion for summary judgment, but the trial court did not address it. So we do not address it either.

Although the issue of [damages] was raised below by the evidence and by [the city’s] arguments in support of its motion for summary judgment, the trial court did not address the matter in its summary judgment order. Thus, if we were to conclude that the trial court erred, it would be on account of an issue never ruled on below. See City of Gainesville v. Dodd, 275 Ga. 834, 837 (573 SE2d 369) (2002) (noting principle that “[t]here having been no rulings by the trial court on the issues raised on appeal, there are no rulings to review for legal error”) (citation and punctuation omitted). As we have said, although an appellate court sometimes can review a record for purposes of summary judgment as effectively as a trial court and determine that the ruling under review was right for some reason other than the reason given by the court below, we do not think an appellate court properly ought to consider whether the trial court was “wrong for any reason.”

Nebo Ventures v. NovaPro Risk Solutions, 324 Ga. App. 836, 848 (4) (752 SE2d 18) (2013) (citation and punctuation omitted). Accordingly, we conclude that it is appropriate for the trial court to address in the first instance whether the city is entitled to summary judgment on this ground. But see Stroud v. Hall County, 339 Ga. App. 37, 41 (2) (793 SE2d 104) (2016) (“[A] plaintiff’s failure to produce probative evidence of a specific amount of damages is not a viable basis for summary judgment.”).

Judgments affirmed.

McMillian and Self, JJ., concur.

Freeman Mathis & Gary, DanaK. Maine, Kevin R. Stone, Coleen D. Hosack, for appellant.

Lillian A. Young, pro se.


author: BARNES, Presiding Judge.

text:
    A16A1807.
    JACKSON v. THE STATE.
    (797 SE2d 152)
   BARNES, Presiding Judge.

Abraham Lincoln Jackson was charged with driving under the influence of drugs to the extent he was a less safe driver, possession of less than an ounce of marijuana, and speeding. He filed a motion to suppress, which the trial court denied after a hearing. We granted Jackson’s application for an interlocutory appeal, and after reviewing the hearing transcript, we affirm for the reasons set forth below.

Jackson argues that the trial court erred in finding that he gave actual consent to have his blood drawn, and erred in holding that OCGA § 40-6-392 (a) (2) authorizes the testing of blood for drugs as well as alcohol. “On appeal from a ruling on a motion to suppress, we construe the evidence most favorably to affirming the trial court’s factual findings and judgment,” but review conclusions of law de novo. (Citation omitted.) Brooks v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007).

1. Jackson moved to suppress the results of his blood test on the grounds that no exigent circumstances supported a warrantless search and that he did not give actual consent to the blood withdrawal, citing Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). The Supreme Court in Williams noted that a warrantless search is constitutional only if exigent circumstances are present or the suspect consents to the search, and “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.” Id. at 822.

The State does not contend that exigent circumstances were present in this case, and therefore the issue is only whether Jackson gave actual consent to the search. Jackson argues that the State failed to produce evidence addressing the issue of actual consent other than strict compliance with the implied consent law, and since mere compliance alone is legally insufficient to establish actual consent, the trial court erred. We disagree.

In conducting a totality of the circumstances analysis, we have considered a host of factors. Aconsent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent. The defendant’s affirmative response to the implied consent notice may itself be sufficient evidence of actual and voluntary consent, absent reason to believe the response was involuntary. The defendant’s failure to express an objection to the test or change his or her mind also is evidence of actual consent.

(Citations and punctuation omitted.) Jacobs v. State, 338 Ga. App. 743, 748 (2) (791 SE2d 844) (2016).

Here, the trial court correctly found under the totality of the circumstances that Jackson freely and voluntarily consented to the blood test. The arresting officer testified that after he stopped Jackson for speeding and spoke with him, the officer developed probable cause that Jackson was under the influence. He arrested Jackson and read him the implied consent language, and Jackson “agreed to the testing.” That affirmative answer to the question posed by the implied consent language is necessarily part of the totality of the circumstances to be considered by the trial court. The officer further testified that he did not threaten Jackson, make any promises to him, or threaten him with bodily harm. Jackson was transported to the sheriffs office, where he was not strapped down but voluntarily extended his arm to have his blood drawn. No evidence indicates that the officer “used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” (Citation omitted.) Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008). Nor does Jackson argue that youth, lack of education, or low intelligence somehow negated the voluntariness of his consent.

Considering the law and the facts in the record, and affording proper deference to the trial court that heard the officer’s testimony first-hand, we find no error in the trial court’s denial of Jackson’s motion to suppress the results of his blood test.

2. Jackson further argues that law enforcement officers are not authorized to request blood testing for drugs but may request “blood testing for alcohol only.” The trial court found that “the consent, based upon Georgia’s statutory scheme for DUI as a whole and [OCGA § 40-6-392 (a) (2)] in particular is not limited to testing for alcoholic content only, and the State is authorized to test the substance for the presence of drugs.”

Jackson’s argument is based solely on the language of OCGA § 40-6-392 (a) (2), considered in isolation, which provides:

When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. . . .

(Emphasis supplied.) “The fundamental rules of statutory construction require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Citation and punctuation omitted.) Walker v. State, 290 Ga. 696, 701 (2) (723 SE2d 894) (2012).

We disagree with Jackson’s view of the plain meaning of this subsection. It does not provide that the State may only draw blood for the purpose of determining the alcoholic content; instead, it states who may draw blood “for the purpose of determining the alcoholic content therein.” OCGA § 40-6-392 (a) (2). The fact that only qualified persons may withdraw blood to ascertain the presence of alcohol does not mean that the law enforcement officers have no authority to obtain a blood draw for the purpose of detecting drugs.

When OCGA § 40-6-392 (a) (2) is viewed in context with other portions of OCGA § 40-6-392 and OCGA § 40-5-55 (a), Jackson’s argument in this case strains credulity OCGA § 40-5-55 (a) provides:

. . . [A]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391[.]

(Emphasis supplied.)

OCGA § 40-6-392 provides, in pertinent part:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount o/alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person ’s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:
(1) (A) Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. . . .
(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. . . .

(Emphasis supplied.)

OCGA § 40-6-392 “provides for the procedures to be used where the State administers the test. Thus, if a State-administered test complies with the statutory requirements in OCGA § 40-6-392 (a), the test results ‘shall be admissible,’ and conversely, if the State-administered test does not comply with the statute, it is inadmissible.” (Citations and punctuation omitted.) State v. Padgett, 329 Ga. App. 747, 750 (1) (766 SE2d 143) (2014).

Decided February 15, 2017

Harvey S. Wasserman, for appellant.

D. Parks White, District Attorney, Brian J. Atkinson, Assistant District Attorney, for appellee.

In this case, Jackson presented no evidence showing that the State-administered blood test for drugs did not comply with the statute. The statutory scheme expressly authorizes law enforcement officers to request a chemical analysis of a person’s blood for the purpose of determining the presence of drugs, provided the chemical analysis complies with the requirements of OCGA § 40-6-392 (a) (1) (A). Padgett, 329 Ga. App. at 751 (1) (affirming trial court’s grant of motion to suppress where State conceded that chemical analysis of blood did not comply with the requirements of OCGA § 40-6-392 (a) (1) (A)).

As this case does not involve a blood draw “for the purpose of determining the alcoholic content therein,” OCGA § 40-6-392 (a) (2) does not apply. And contrary to Jackson’s argument on appeal, the fact that the legislature did not mandate particular procedures for a chemical analysis of blood to detect the presence of drugs does not render such chemical analysis inadmissible. Cf. Head v. State, 246 Ga. 360, 363 (5) (271 SE2d 452) (1980). To hold otherwise would eviscerate the grounds for admissibility provided by OCGA § 40-6-392 (a) (1) (A).

Accordingly, the trial court did not err in denying Jackson’s motion to suppress on this ground.

Judgment affirmed.

Rickman and Self, JJ., concur.

       Jackson does not contend in this appeal that the results of his blood test should be suppressed because an unqualified person drew his blood for the purpose of testing it for drugs. See Head v. State, 246 Ga. 360, 363 (5) (271 SE2d 452) (1980) (stating “legislature is authorized to classify and treat alcohol differently from other drugs and defendant cannot complain if drug users are not entitled to have qualified persons conduct the tests”). Compare Carr v. State, 222 Ga. App. 776, 777-778 (1) (476 SE2d 75) (1996) (stating in dicta that blood drawn for purpose of determining alcohol and drug content must meet “qualified person” requirement of OCGA § 40-6-392 (a) (2)).

       OCGA § 40-6-391 (a) (6) makes it unlawful for a person to “drive or be in actual physical control of any moving vehicle while . . . there is any amount of marijuana or a controlled substance . . . present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.”


text:
    A16A2152.
    THE STATE v. BROGAN.
    (797 SE2d 149)
   McFADDEN, Presiding Judge.

The state charged Colleen Brogan with driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), (5), among other offenses. The trial court granted Brogan’s motion to suppress evidence of her blood alcohol level obtained through a warrantless blood test, finding that the state did not show Brogan voluntarily consented to the blood test. The state appeals. Because the evidence presented at the hearing on the motion to suppress authorized the trial court’s ruling, we affirm.

A blood test is a search within the meaning of the Fourth Amendment. Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015). A warrantless search is “per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. Thus, a warrantless search is presumed to be invalid, and the [sjtate has the burden of showing otherwise.” Id. (citations omitted). In this case, the state argued that no search warrant was needed because Brogan consented to the blood test. See id. at 821 (“it is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the need for ... a search warrant”) (citations omitted). Consequently, to meet its burden, the state was required to show that Brogan acted freely and voluntarily in giving actual consent. Id. at 821-822; State v. Flores-Gallegos, 337 Ga. App. 79, 82 (785 SE2d 911) (2016). After receiving evidence at a hearing, the trial court granted the motion to suppress, finding that the state had not “met its burden in proving voluntary consent to the arresting officer’s request for a blood sample.”

We first consider our standard of appellate review, which requires us to determine whether the facts material to the ruling on the motion to suppress are disputed or undisputed. See State v. Underwood, 283 Ga. 498, 500-501 (661 SE2d 529) (2008). The facts material to whether Brogan voluntarily consented to the blood test are disputed. The law enforcement officer who arrested Brogan testified that he believed she had consented to the test after he read her Georgia’s implied consent notice, see OCGA § 40-5-67.1 (b), but he could not specifically recall how she demonstrated her consent. A video recording of the officer’s interaction with Brogan exists, but the facts material to whether Brogan consented are not indisputably discernible from it. See State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248) (2015) (reviewing court may consider “facts indisputably discernible from a videotape”) (citation omitted). The video recording does not capture Brogan’s alleged consent, either visually or audibly. And the hearing transcript shows that, although the officer testified that he believed Brogan was capable of listening to him and making decisions during their encounter, the trial court questioned this point after hearing the officer’s testimony and viewing the video recording. Compare Clay v. State, 290 Ga. 822, 825 (1) (A) (2) n. 1 (725 SE2d 260) (2012) (finding that combination of video recording and testimony regarding voluntariness of defendant’s consent necessitated credibility determinations by trial court) with State v. Depol, 336 Ga. App. 191 (784 SE2d 51) (2016) (finding that controlling facts regarding defendant’s actual consent to breath test were undisputed because they were plainly discernible from video recording).

“When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.” Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). If the trial court has made express findings of fact, we must accept those findings unless they are clearly erroneous, construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and limit our consideration of the disputed facts to those expressly found by the trial court. Id. The trial court, however, is not required to make express findings of fact after a hearing on a motion to suppress. Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997). In such a case, we nevertheless construe the evidence most favorably to uphold the trial court’s judgment. Id.

The trial court’s order contains only one statement that arguably could be viewed asa finding of fact — the statement that the state had not “met its burden in proving voluntary consent to the arresting officer’s request for a blood sample.” See, e.g., Code v. State, 234 Ga. 90, 93 (III) (214 SE2d 873) (1975) (in determining whether the state met its burden of showing that accused voluntarily consented to a search, “[vjoluntariness is a question of fact to be determined from all the circumstances”) (citation and punctuation omitted); Rogue v. State, 311 Ga. App. 421, 424 (715 SE2d 814) (2011) (“Whether consent [to search] is voluntarily given is a question of fact for the trial court to determine from all the circumstances.”) (citation omitted). But see, e.g., Clay, 290 Ga. at 831 (2) (D) (implying in dicta that whether defendant consented to search presented legal issue); Kendrick v. State, 335 Ga. App. 766, 768 (782 SE2d 842) (2016) (viewing issue of whether defendant freely and voluntarily consented to breath test to be an issue for the appellate court to resolve on de novo review of undisputed evidence). But whether we treat the trial court’s determination regarding voluntariness as a finding of fact or a conclusion of law, because the evidence in this case is disputed, we construe that evidence in the light most favorable to the trial court’s judgment. “[I]n the absence of evidence of record demanding a finding contrary to the judge’s determination, [we] will not reverse the ruling sustaining a motion to suppress.” State v. Bowman, 337 Ga. App. 313, 318 (787 SE2d 284) (2016) (citations and punctuation omitted; emphasis in original).

So viewed, the hearing evidence showed that in the early afternoon on May 13, 2015, a law enforcement officer was dispatched to investigate a car stopped in the middle of a busy intersection. Ambulance personnel were on the scene when he arrived; they had found the car in gear and Brogan asleep behind the wheel.

The officer roused Brogan and spoke with her, and he observed that her face looked lethargic and “droopy” and her speech was slow and slurred. When Brogan stepped out of the car at the officer’s request, she was so unsteady that the officer believed Brogan could not safely perform field sobriety tests. Once out of the car, Brogan held out her arms in a stiff, unnatural posture; she told the officer she was doing this so that he could take her blood pressure, even though the ambulance personnel had taken her blood pressure moments before. In the video recording of the encounter, Brogan appears confused and lacking control over her physical movements, and she gives tentative and sometimes nonresponsive or incomprehensible answers to the officer’s questions.

The officer did not smell any alcohol on Brogan or in her car, and he told Brogan that he did not suspect she was impaired by alcohol. He asked Brogan if she had taken any drugs, and she responded that she had taken allergy medication. The officer told Brogan that he was worried about her and suggested she get medical attention. When Brogan replied that she wanted to go home, the officer told her that she could not drive herself home. At that point, Brogan turned away from the officer who, believing that Brogan was heading back to her car, handcuffed her and placed her in his patrol vehicle. He did not tell her that she was under arrest or explain why he had detained her.

Once Brogan was in the patrol vehicle, the officer read her Georgia’s informed consent notice. He then asked her if she consented to a blood test. The officer testified that Brogan bobbed her head, but he conceded that he “really c[ould]n’t speak to how she articulated yes,” and no answer can be heard on the video recording. The officer then drove Brogan to a hospital, where her blood was drawn for testing. The results of the blood test were not entered into evidence; however, at the hearing the prosecutor and defense counsel agreed that the test showed she had an extremely high blood alcohol level.

This evidence does not demand that we reverse the trial court’s ruling sustaining Brogan’s motion to suppress. See Bowman, 337 Ga. App. at 318. It is not clear from the evidence that Brogan gave any affirmative response to the implied consent notice, but even if she did respond affirmatively to it, our Supreme Court in Williams, 296 Ga. at 821-822, “rejected [a] per se rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment. Instead, courts must now conduct a case-by-case analysis, considering the totality of the circumstances.”Kendrick, 335 Ga. App. at 769 (citations omitted).

Decided February 15, 2017.

Sherry Boston, Solicitor-General, WystanB. Getz, Assistant Solicitor-General, for appellant.

Heit Law, Marny J. Heit, for appellee.

The evidence in this case, viewed in the light most favorable to the judgment, showed that Brogan was extremely intoxicated and confused during her encounter with the officer. These factors supported the trial court’s conclusion that she did not voluntarily consent to the blood test. See State v. Jung, 337 Ga. App. 799, 803-804 (788 SE2d 884) (2016); State v. Williams, 337 Ga. App. 791, 796 (788 SE2d 860) (2016); Bowman, 337 Ga. App. at 317-318; State v. Durrence, 295 Ga. App. 216, 217-218 (671 SE2d 261) (2008). The evidence also showed that the interaction between the officer and Brogan was ambiguous. The officer did not tell Brogan she was under arrest; instead, he told her that he did not think she was under the influence of alcohol, and he expressed concern about her medical condition and her need for medical attention. While Brogan’s knowledge of her right to refuse consent to a search was not “the sine qua non of an effective consent,” it nevertheless was a factor that the trial court could take into account, Kendrick, 335 Ga. App. at 769 (citation and punctuation omitted), and these circumstances could be construed to cast doubt on that knowledge.

In its brief, the state essentially argues that the evidence supported a finding of voluntary consent. Were we reviewing a denial of a motion to suppress, this argument might be persuasive. But we are reviewing a grant of a motion to suppress, and the evidence “[did] not demand a finding contrary to the trial court’s decision.” Durrence, 295 Ga. App. at 218. For this reason, we must affirm. Bowman, 337 Ga. App. at 319; Durrence, 295 Ga. App. at 218.

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


author: Andrews, Judge.

text:
    A16A1762.
    HARVEST ASSETS, LLC v. NORTHLAKE MANOR CONDOMINIUM ASSOCIATION.
    (796 SE2d 319)
   Andrews, Judge.

The sole issue in this appeal is whether the term “special assessments” in OCGA § 48-4-42 encompasses condominium assessments. We hold that it does and reverse the trial court’s opposite conclusion.

The operative facts are not disputed. On December 3, 2013, the appellant, Harvest Assets, LLC, paid $7,600 for a tax deed to a unit in the Northlake Manor Condominiums. Subsequently, Harvest Assets also paid $5,000 to the Northlake Manor Condominium Association earmarked for condominium assessments due after the tax sale. The Association, which claimed a lien on the subject property for unpaid condominium assessments, sought to redeem the property, and eventually obtained a quitclaim deed from the actual taxpayer. Harvest Assets initially disputed the Association’s right to redeem but ultimately provided an itemized pay-off amount to the Association: $7,600 for the tax deed purchase; $1,520, representing a 20 percent premium on the tax deed purchase price; $5,000 for the condominium assessments paid; and $1,000, representing a 20 percent premium on the $5,000 condominium assessments.

The Association tendered only $9,120, covering the tax sale price plus the 20 percent premium on that payment, but denied any obligation to reimburse the condominium assessments under the redemption statute. Harvest Assets rejected that tender, and the Association commenced this action to force acceptance of the tender and delivery of a deed of redemption. This appeal follows the trial court’s grant of summary judgment for the Association and denial of summary judgment for Harvest Assets.

OCGA § 48-4-42, in effect at the time of the events in this case, provided:

The amount required to be paid for redemption of property from any sale for taxes as provided in this chapter, or the redemption price, shall with respect to any sale made after July 1, 2002, be the amount paid for the property at the tax sale, as shown by the recitals in the tax deed, plus any taxes paid on the property by the purchaser after the sale for taxes, plus any special assessments on the property, plus a premium of 20 percent of the amount for the first year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made and 10 percent for each year or fraction of a year thereafter. . . .

Decided February 16, 2017.

Ayoub & Mansour, John A. B. Ayoub, Carolina D. Bryant, for appellant.

This Court has previously decided that a tax deed purchaser is obligated to pay homeowner/condominium assessments while holding title to the subject property See Croft v. Fairfield Plantation Property Owners Assn., 276 Ga. App. 311 (623 SE2d 531) (2005). In so deciding, we expressed concern that a contrary determination could result in a windfall profit for a tax deed purchaser, i.e., “a situation in which a tax deed purchaser could, by inaction, keep the redemption period alive indefinitely, reap the benefit of property value increases, and avoid the obligation to pay maintenance expenses which increase the value of the property.” Id. at 314 (1).

In Reliance Equities v. Lanier 5, LLC, 299 Ga. 891, 894 (1) (792 SE2d 680) (2016), the Supreme Court noted that as the enforcement and collection of taxes through the sale of a taxpayer’s property is such a harsh remedy, “the policy has been to favor the rights of the property owner in the interpretation of such laws.” But balancing the policy favoring the taxpayer’s right to redeem is a compelling policy that a tax deed purchaser should be made whole upon the taxpayer’s redemption of the property See Herrington v. Old South Investment Co., 222 Ga. 428 (150 SE2d 623) (1966).

If it is appropriate to obligate a tax deed purchaser to pay homeowner/condominium assessments in order to prevent the possibility of a windfall profit to that purchaser, it is equally appropriate to obligate the redeeming taxpayer to make that purchaser whole by reimbursing any such assessment payments. Accordingly, we conclude the term “special assessments” in OCGA § 48-4-42 includes private assessments on the property and is not limited to governmental assessments, as held by the trial court.

The trial court thus erred in granting summary judgment for the Association and denying summary judgment for Harvest Assets on this issue. However, the record shows that part of Harvest Assets’s $5,000 payment was applied toward interest and attorney fees assessed for its late payment of some of the assessments, and Harvest Assets may not be reimbursed for any such interest and properly assessed attorney fees. Accordingly, the trial court must now determine to what extent the Association was entitled to assess attorney fees under OCGA § 13-1-11 (a), including any applicable limitations provided in subsections (1) or (2).

Judgment reversed and case remanded.

Doyle, C. J., and Ray, J., concur.

Lipshutz Greenblatt, Randall M. Lipshutz, for appellee.