author: Ellington, Chief Judge. DILLARD, Judge,

text:
    A12A2042.
    SUNTRUST BANK v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA.
    (740 SE2d 824)
   Ellington, Chief Judge.

In this appeal arising from a personal injury lawsuit, SunTrust Bank (“SunTrust”), as the administrator of the estate of Michael Patrick, appeals from the trial court’s order granting a motion to enforce a subrogation lien that was filed by Travelers Property Casualty Company of America (“Travelers”), the workers’ compensation insurer for Patrick’s employer, Unique Industry Corporation. Patrick was injured in a collision while working for his employer, and he received workers’ compensation benefits before filing suit against two third-party tortfeasors, Associated Grocers of the South, Inc. (“Associated Grocers”) and Larry Granger, whose negligence caused the collision. Although Travelers timely intervened in the suit in order to protect its workers’ compensation subrogation lien, Patrick and the tortfeasors settled the case for a confidential “lump sum” without Travelers’ knowledge, participation or consent. Among other terms, the settlement agreement included a conclusory statement that the proceeds of the settlement did not fully and completely compensate Patrick for his injuries. On appeal, SunTrust contends that the trial court erred in finding that the express terms of the settlement agreement did not extinguish Travelers’ right to enforce its subrogation lien. For the following reasons, we find no error and affirm.

The record shows the following relevant, undisputed facts. On March 27, 2007, Patrick was driving a pickup truck on Interstate 985 when a tractor-trailer driven by Granger struck his truck from behind and caused Patrick to suffer severe, permanent injuries. At the time of the collision, Granger was working for Associated Grocers, while Patrick was working for Unique Industry Corporation. As a result of Patrick’s injuries, Unique Industry’s workers’ compensation insurance carrier, Travelers, paid him over $800,000 in workers’ compensation benefits for medical costs and lost wages.

In November 2008, Patrick filed a negligence and personal injury suit against Granger and Associated Grocers (collectively, “AG”). Travelers moved to intervene in the suit in order to protect its workers’ compensation subrogation rights under OCGA § 34-9-11.1 (b), and the trial court granted the motion.

On February 2 or 3, 2010, an employee of the law firm representing AG notified Travelers’ counsel that a mediation session had been scheduled in an effort to settle Patrick’s suit. On February 8, however, an attorney with that law firm told Travelers’ counsel that AG and Patrick were not going to allow Travelers to attend or participate in the mediation. In response, Travelers’ attorney insisted that, as a party to the suit pursuant to its intervention, a representative of Travelers should be allowed to attend and represent its interests during the mediation. Later that day, AG’s attorney told Travelers’ attorney that the mediation session with Patrick had been cancelled and that, at trial, his clients (AG) would admit their liability for Patrick’s injuries.

Unbeknownst to Travelers, however, Patrick and AG actually proceeded with the mediation on February 10, 2010, during which they executed a confidential, “lump sum” settlement of the suit. The next day, AG’s attorney notified Travelers that his clients and Patrick had settled the suit and that he could not disclose the terms of the settlement to Travelers because they were confidential.

Patrick then filed a motion to extinguish Travelers’ workers’ compensation subrogation lien. In response, Travelers filed a motion to protect and enforce its lien interest. Patrick filed a motion for a protective order to keep the terms of the settlement agreement confidential, while Travelers filed a motion to compel discovery of, inter alia, the agreement’s terms. Following a hearing on the motions, the trial court granted Travelers’ motion to compel and denied Patrick’s request for a protective order.

The terms of the settlement agreement were then disclosed, and, in addition to the settlement amount, they included the following provisions: that the settlement amount would remain confidential, except as required by law or by court order; that Patrick would indemnify AG for any workers’ compensation subrogation claims that Travelers may assert against AG; and that Patrick would sign a general release as to AG’s liability and would dismiss his suit against AG. In addition, the settlement agreement stated that “[a]ll parties acknowledge that [Patrick] has not been made whole or fully compensated for his claims” by the settlement.

Following this disclosure, the trial court issued an order granting Travelers’ motion to enforce its workers’ compensation subrogation lien. In its order, the court concluded that Travelers’ absolute right to intervene in Patrick’s personal injury suit against AG, pursuant to OCGA § 34-9-11.1 (b), would be rendered null and unenforceable if Patrick and AG could summarily extinguish Travelers’ subrogation lien simply by executing a “lump sum” settlement agreement stating that the settlement amount did not completely compensate Patrick for his injuries. The court concluded that Travelers was entitled to a hearing, during which Travelers could attempt to enforce its subrogation lien by proving to the court, as the finder of fact, that Patrick had been “fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses [he] incurred as a result of the injur [ies],” pursuant to OCGA § 34-9-11.1 (b).

Before conducting the hearing, however, the trial court granted Patrick’s request for a certificate of immediate review. This Court granted the interlocutory application, and this appeal followed. After this Court docketed the appeal, however, Patrick died, and SunTrust, as the administrator of his estate, was substituted as the appellant.

1. In arguing that the trial court’s order on Travelers’ motion to enforce its subrogation lien constitutes reversible error, SunTrust contends that, given the express terms of the “lump sum” settlement agreement between Patrick and AG, it will be impossible for Travelers to meet its threshold burden for enforcing its subrogation lien under OCGA § 34-9-11.1 (b), i.e., proving that the workers’ compensation benefits Patrick received, plus the proceeds of his settlement with AG, “fully and completely compensated [him] ... for all [of his] economic and noneconomic losses” that resulted from his injuries. SunTrust asserts two bases for this argument: (a) the parties to the agreement specifically acknowledged in the agreement that Patrick has not been made whole or fully compensated for his injuries; and (b) the “lump sum” settlement amount fails to expressly divide the proceeds between Patrick’s economic damages (i.e., his medical expenses and lost wages) and his noneconomic damages (i.e., pain and suffering).

(a) As to the first issue, it is solely for the trial court ■— not a jury, the employee, or third-party tortfeasors — to determine whether the insurer has met its burden of showing that the employee has been fully compensated for his or her injuries. See Austell HealthCare v. Scott, 308 Ga. App. 393, 397 (4) (707 SE2d 599) (2011) (“If an employer has intervened in an employee’s lawsuit against a third-party tortfeasor, after the employee has obtained a verdict in his favor or settled the case, it is the trial court’s duty to consider evidence and determine whether the employee has been fully and completely compensated. In doing so, the trial court is required to weigh the evidence and make a factual determination as to whether the employer has carried its burden.”) (citation omitted; emphasis in original); see also Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. 866, 870-873 (1), (2) (570 SE2d 60) (2002) (accord); Ga. Elec. Membership Corp. v. Garnto, 266 Ga. App. 452, 453-454 (597 SE2d 527) (2004) (accord); see also City of Warner Robins v. Baker, 255 Ga. App. 601, 602 (1) (a) (565 SE2d 919) (2002) (The determination of whether an employee has been fully and completely compensated is a mixed question of law and fact. Therefore, it requires the presentation of evidence.).

Moreover, “one of the fundamental rules of the law of contracts is that only those parties to the agreement are bound by it.” Leone Hall Price Foundation v. Baker, 276 Ga. 318, 320 (3) (577 SE2d 779) (2003). Here, Travelers was intentionally excluded from the settlement negotiations, was not a party to the settlement agreement, and has never consented to the agreement. Thus, Travelers is not bound by the settlement agreement’s statement that Patrick and AG “acknowledge” that Patrick has not been fully compensated for his injuries. Id.

(b) As to the second issue, SunTrust argues that Georgia’s law is “clear” that an employer or insurer may never enforce a workers’ compensation subrogation lien against an employee’s recovery from a lawsuit against a third-party tortfeasor when that suit results in either a general, nonitemized jury verdict or a “lump sum” settlement. According to SunTrust, because a workers’ compensation subrogation lien is limited to the total amount of economic benefits the insurer has paid to the employee and only applies to an employee’s recovery of economic damages from the third-party tortfeasor, the lien is unenforceable as a matter of law against a jury verdict or settlement that does not apportion the proceeds between economic and noneconomic damages. In making this argument, SunTrust relies on a line of opinions from this Court that appear, at first glance, to support this broad, bright line rule by including the following (or comparable) language (hereinafter referred to as the “language at issue”):

When the employee has received a jury award, [courts] cannot determine from a general verdict form what portion of an award was meant to compensate the employee for economic losses and what portion was meant to cover non-economic losses. The same is true when the employee negotiates a settlement of his claim against the tortfeasor and the settlement is a lump sum. [Courts] cannot determine from the settlement documents what portion of the settlement was allocated to economic losses and what portion was meant to compensate for noneconomic losses. The result is that the lien cannot be enforced, because full and complete compensation cannot be shown.

(Citation omitted; emphasis supplied.) City of Warner Robins v. Baker, 255 Ga. App. at 604-605 (3). Having thoroughly reviewed each of the opinions upon which SunTrust relies, however, we have concluded that those cases are neither applicable to nor dispositive in this case for the following reasons.

Several of the cases relied upon by SunTrust are clearly distinguishable from the instant case because, unlike Travelers, the employers or insurers in those cases did not intervene in the employees’ lawsuits or take other available measures to protect their subrogation liens. For example, in Canal Ins. Co. v. Liberty Mut. Ins. Co., this Court held that an insurer’s failure to intervene in an employee’s suit against a third-party tortfeasor, and then to request a special verdict or settlement that distinguished between an award of economic versus noneconomic damages, constituted a failure by the insurer to protect its subrogation lien. 256 Ga. App. at 869-874 (1), (2). As a result of its inaction, the insurer could not enforce its lien, because it would be unable to prove that the employee had been fully compensated under such circumstances. Id.; see also CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236 (564 SE2d 836) (2002) (accord).

As for other cases relied upon by SunTrust, the broad, conclusive language at issue constitutes mere dicta, because, in each of those cases, the trial court still provided the employer/insurer an opportunity to present evidence on whether the employee had been fully compensated, and the trial court and this Court still reviewed that evidence to determine whether the employer/insurer had met its burden of proof. For example, in City of Warner Robins v. Baker, the trial court conducted a hearing on whether the employer could enforce its subrogation lien even though the employer had failed to intervene in its employee’s lawsuit, which ended in a $90,000 lump sum settlement. 255 Ga. App. at 601-602. Further, on appeal, even though there was no transcript of the hearing in the appellate record, this Court reviewed the evidence in the remaining record, which showed that the employee had presented evidence of his permanent disabilities, of the amount of medical expenses he had incurred, of the pain and suffering and severe mental health problems he continued to experience, and of his possible future medical expenses. Id. at 605 (3). The record also showed that the employee recovered about $59,000 from the settlement (after subtracting attorney fees and costs), that he had incurred at least $135,000 in medical expenses, and that he had received about $49,000 through workers’ compensation benefits (which was the amount of the lien). Id. Under these circumstances, this Court ruled that the trial court was authorized to conclude that the employer had failed to carry its burden of showing that the employee had been fully and completely compensated and, thus, could not enforce its subrogation lien. Id.

Similarly, in CGU Ins. Co. v. Sabel Indus., the insurer intervened in the employee’s lawsuit after it had been settled for a lump sum of $4.5 million, but before it had been dismissed. 255 Ga. App. at 237-238. The settlement covered both the employee’s tort claims and his wife’s loss of consortium claim, although it did not allocate a specific amount of the award to the latter’s claim. Id. Even so, the trial court conducted a hearing on whether the insurer could enforce its subrogation lien, during which the employee showed that he had suffered a traumatic amputation of his leg and other severe injuries, resulting in several surgeries, extreme pain and suffering, and extensive rehabilitation. Id. at 237-238. In response, the insurer presented the testimony of two expert witnesses, but neither had interviewed the employee or his wife, and both experts admitted that, in reaching their opinions, they had failed to consider certain essential evidence, including, inter alia, the employee’s complete educational and work history, the full extent of his injuries, and his need for future surgeries and other medical treatment. Id. at 239-241 (1). The trial court ruled that this expert testimony was speculative and, thus, “woefully deficient” in assisting the insurer in meeting its burden of proof, and, as a consequence, the insurer could not enforce its subrogation lien. Id. at 241 (1). Because some evidence supported the trial court’s conclusion, this Court affirmed its judgment. Id.

And, although this Court included the language at issue in North Bros. Co. v. Thomas, the jury in that case actually issued a special verdict, awarding the employee $25,000 for his medical expenses and $25,000 for his noneconomic damages. 236 Ga. App. 839, 841 (513 SE2d 251) (1999). Thus, the language was merely advisory and clearly dicta.

Finally, as for SunTrust’s reliance on Bartow County Bd. of Ed. v. Ray, that case is clearly distinguishable on the facts from the instant case. 229 Ga. App. 333 (494 SE2d 29) (1997). Although the employer intervened in its employee’s suit against the third-party tortfeasors, the employer did not request that the jury utilize a special verdict form when issuing its award. Id. The jury ultimately returned a general verdict for $175,000. Id. In an effort to enforce its subrogation lien against that award, the employer showed that the employee had received about $40,000 in workers’ compensation benefits, and it argued that, because the amount of special damages proven at trial totaled about $55,000, “common sense” dictated a finding that the employee had been fully compensated by the jury’s award of $175,000. Id. at 334. After opining that the use of a special verdict form would have assisted the employer in meeting its burden of proof, this Court concluded that the employer had failed to show that the employee had been fully compensated, and, as a result, the trial court properly denied its subrogation lien. Id. at 335.

Consequently, we conclude that all of the above cases are factually distinguishable from the instant case, wherein an employer/ insurer has intervened in an employee’s suit against a third-party tortfeasor and the employee and tortfeasor have agreed to a lump sum settlement without the input or consent of the employer/insurer. As a result, these cases do not prohibit a trial court, under the instant circumstances, from conducting a hearing on whether the employee was fully compensated so that the employer/insurer can attempt to enforce its subrogation lien under OCGA § 34-9-11.1 (b).

Accordingly, we reject SunTrust’s argument that the trial court erred in denying its motion to extinguish Travelers’ subrogation lien and in ruling that Travelers would have the opportunity to prove that Patrick had been fully and completely compensated for his injuries so that it can then enforce its lien, pursuant to OCGA § 34-9-11.1 (b).

2. SunTrust also challenges the trial court’s ruling that Travelers’ exclusion from the mediation session between Patrick and AG compromised Travelers’ ability to enforce its subrogation lien. According to the court, Travelers’ absolute right to intervene in Patrick’s lawsuit against AG, pursuant to OCGA § 34-9-11.1 (b), necessarily encompassed a right to participate in mediation and settlement negotiations between those parties. The court explained that, if Travelers had no opportunity to participate in the negotiations and, thus, to influence the terms of the settlement in a manner that would protect its statutory subrogation lien, its absolute right to intervene would be rendered “futile, unenforceable, and ineffectual.” Further, if Patrick and AG were allowed to extinguish Travelers’ lien by surreptitiously executing a lump sum agreement between themselves that stated that Patrick was not “made whole” by the settlement, then all employees and third-party tortfeasors would be able to summarily abrogate the statutory rights of employers and insurers to protect and enforce their workers’ compensation subrogation liens.

While we believe that the trial court’s order expresses a legitimate concern about the potential consequences of a ruling that sanctions the exclusion of employers and insurers from settlement negotiations between employees and third-party tortfeasors, the question of whether Travelers should have been allowed to appear and participate in the mediation session at issue here — and the nature and extent of such participation ■— is no longer an issue in this case and is, thus, moot. The trial court did not order the parties to renegotiate the settlement with Travelers’ participation and consent; instead, it effectively treated the settlement as final and ruled that Travelers will now be allowed to attempt to prove that Patrick was fully compensated by the proceeds of the settlement so that it can enforce its subrogation lien. Accordingly, we do not reach the question of whether Travelers should have been allowed to participate in the mediation session and, if so, to what extent.

Decided March 28, 2013

Reconsideration denied April 12, 2013.

McDonald, Cody & Cook, Matthew E. Cook, for appellant.

Forrester & Brim, Weymon H. Forrester, Tracy M. Baker, for appellee.

Even so, we must address SunTrust’s bold assertion that, after Travelers learned about the mediation session, Travelers “abandoned” its right to participate in the session by failing to obtain a court order allowing it to participate. The undisputed evidence of record clearly shows that this assertion is completely lacking in merit. In fact, the record shows that, two days before the mediation session, AG’s attorneys told Travelers’ attorney that the insurer’s representative would not be allowed to attend the session and that the representative would be treated as a trespasser if he or she appeared at the session. After Travelers’ attorney repeatedly insisted that the insurer had a right to be represented during the mediation session and that it would seek a court order if necessary, AG’s attorneys told him that the mediation session had been cancelled. This was apparently untrue, however, because the mediation session was conducted as scheduled, and Patrick and AG settled Patrick’s suit in Travelers’ absence. Thus, the record clearly does not support SunTrust’s assertion that Travelers abandoned its right to participate in the mediation session.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       See OCGA § 34-9-11.1 (a) (“When the injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability against some person other than the employer, the injured employee or those to whom such employee’s right of action survives at law may pursue the remedy by proper action in a court of competent jurisdiction against such other persons, except as precluded by Code Section 34-9-11 or otherwise.”).

       In relevant part, OCGA § 34-9-11.1 (b) provides as follows:
      In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer’s liability under this chapter has been fully or partially paid, then the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien.. . .
      See also OCGA § 9-11-24 (a) (1) (“Intervention of right. Upon timely application anyone shall be permitted to intervene in an action . . . [wjhen a statute confers an unconditional right to intervene!)]”); Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27, 28 (464 SE2d 7) (1995) (OCGA § 9-11-24 (a) (1) grants an employer and its workers’ compensation insurer an unconditional right to intervene in a suit brought by its employee against a third-party tortfeasor in order to protect and enforce its subrogation lien under OCGA § 34-9-11.1 (b).).

       The amount of the settlement has been redacted from the appellate record.

       Contrary to AG’s prior representations that all of the settlement’s terms were confidential, the agreement specifically provides that only the amount of the settlement was to remain confidential.

         See OCGA § 34-9-11.1 (b) (The employer’s or insurer’s recovery on its workers’ compensation subrogation lien “shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.”).

       See Court of Appeals Rule 43 (a), (d).

       See Dept. of Admin. Svcs. v. Brown, 219 Ga. App. at 28 (noting that the interests of an employee and an insurer may conflict when the insurer asserts a workers’ compensation subrogation lien against the employee’s recovery in a suit against a third-party tortfeasor).

         Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. at 871 (1).

       See also Austell Healthcare v. Scott, 308 Ga. App. at 393-396 (1) (After the employee settled his third-party suit for a lump sum of $76,000, he moved to extinguish the $59,000 subrogation lien held by his employer and insurer. The employee presented evidence of his surgeries and permanent partial disability and argued that he had not been fully compensated by the settlement proceeds. The employer and insurer failed to come forth with any evidence to show otherwise, and they failed to provide a transcript of the hearing for appellate review. As a result, this Court affirmed the trial court’s conclusion that the employer had not met its burden of proof and its grant of the employee’s motion to extinguish the lien.); Paschall Truck Lines v. Kirkland, 287 Ga. App. 497, 499 (651 SE2d 804) (2007) (After the employee settled his third-party suit for a lump sum of $100,000, he moved to extinguish his employer’s subrogation lien by presenting evidence that showed he had not been fully compensated by the settlement proceeds, and his employer failed to come forth with any evidence to show otherwise. As a result, the trial court concluded that the employer had not met its burden of proof, and it granted the employee’s motion to extinguish the lien.); Hartford Ins. Co. v. Fed. Express Corp., 253 Ga. App. 520 (559 SE2d 530) (2002) (After receiving approximately $65,000 in workers’ compensation benefits, the employee settled his third-party suit for a lump sum of $75,000. During a hearing on the insurer’s subrogation lien, the employee showed that he had become permanently disabled, continued to suffer severe pain, and needed future medical treatment. Given this evidence, this Court affirmed the trial court’s conclusion that the insurer had failed to meet its burden of proving that the employee had been fully compensated for his injuries.).

       We also note that, in North Bros. Co. v. Thomas, the employee admitted that his medical expenses totaled approximately $60,000. 236 Ga. App. at 840, n. 1. Under those circumstances, the trial court ruled that the insurer could enforce its subrogation lien against the jury’s $25,000 award for medical expenses. Id. at 842.

       See City of Warner Robins v. Baker, 255 Ga. App. at 603 (2) (acknowledging that an employer or insurer with a subrogation lien under OCGA § 34-9-11.1 (b) “has an absolute right to intervene in both trials and settlement negotiations”).

       See Dept. of Admin. Svcs. v. Brown, 219 Ga. App. at 28 (holding that an insurer must have the right to intervene to protect its subrogation rights prior to a jury verdict or a settlement because the employee and the insurer have conflicting interests in the verdict or settlement; for example, the employee’s interests would be best served by a general verdict, while an employer’s interests would be best served by a special verdict).

       Neither Patrick nor AG has sought to make the settlement a consent judgment of the court.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A12A2100.
    GOODWIN v. STATE OF GEORGIA.
    (739 SE2d 814)
   Dillard, Judge.

Following a bench trial in this in rem civil forfeiture action, Tasha Goodwin forfeited $14,350 to the State on the ground that it was used to facilitate the possession, sale, and distribution of marijuana. Goodwin appeals, arguing that the trial court (1) failed to conduct a hearing within 60 days of the forfeiture complaint being served, as required by OCGA § 16-13-49 (o) (5); and (2) erred in finding that the money was subject to forfeiture based on it being used to facilitate a drug transaction. Because we conclude that the hearing on the forfeiture action was untimely, we reverse.

Following a traffic stop involving Goodwin’s vehicle, the Butts County Sheriff’s Office seized $28,700 that it alleged was being used to facilitate the possession, sale, and distribution of marijuana. On August 19, 2011, the State filed, pursuant to OCGA § 16-13-49, a complaint for forfeiture. Service of the complaint was then perfected on Goodwin on August 24, 2011. Goodwin timely answered, averring that (1) she owned fifty percent of the seized money (i.e., $14,350); (2) the money came from lottery winnings, legal settlements, death benefits, tax refunds, and profits derived from operating a beauty salon; and (3) the money was being used in order to hire an attorney to represent her fiancé in a habeas-corpus action pending in Calhoun County. A notice ofhearingwas issued on September 26,2011, setting the forfeiture hearing for October 26, 2011 — 63 days after the service of the complaint on Goodwin. For reasons not contained in the record, the hearing was continued on October 26 and two additional times before eventually being conducted on March 21, 2012. Following the March 21 hearing, the trial court issued an order and judgment forfeiting Goodwin’s money to the State. This appeal follows.

1. Goodwin argues that the trial court’s judgment of forfeiture must be reversed because the trial court failed to conduct a hearing, or continue the hearing for good cause, within 60 days of the service of the State’s forfeiture complaint as requiredby OCGA § 16-13-49 (o) (5). We agree.

OCGA § 16-13-49 (o) (5) provides that in a civil-forfeiture action, “[i]f an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause and must be held by the court without a jury.” The Supreme Court of Georgia has held that this 60-day hearing requirement is mandatory, not permissive, reasoning that the requirement “is consistent with the apparent purpose of that paragraph, which is to ensure a speedy resolution of contested forfeiture cases in the courts, as well as a speedy resolution of property rights.” Thus, it is the duty of the State to obtain a continuance if it “does not invoke a hearing within the 60-day period or otherwise avoid the necessity of the hearing, e.g., by obtaining a dismissal of an answer.” The result of a failure to conduct a hearing within 60 days, or to obtain a good-cause continuance, is a dismissal of the State’s complaint.

Decided March 14, 2013

Reconsideration denied April 12, 2013

Zell & Zell, Rodney S. Zell, for appellant.

Richard G. Milam, District Attorney, James L. Moss, Jr., Assistant District Attorney, for appellee.

In the case sub judice, it is undisputed that the initial hearing on the State’s forfeiture complaint was not scheduled until 63 days after Goodwin was served with the complaint, and the State neither moved for, nor did the trial court grant, a continuance within the statutorily imposed 60-day time period. And because the mandatory statutory time limitations contained within OCGA § 16-13-49 (o) (5) were not met, we are constrained to reverse the trial court’s judgment of forfeiture.

2. Because of our holding in Division 1, we need not address Goodwin’s remaining enumeration of error.

Judgment reversed.

Ellington, C. J., and Phipps, P. J., concur.

       Although the notice of appeal also included the name of Goodwin’s co-claimant, Oranda Walker, Walker failed to file a brief or enumeration of error. Moreover, Goodwin’s brief, which purports to be written on behalf of both Goodwin and Walker but includes argument only as to Goodwin, makes no challenge to the forfeiture of Walker’s property. Indeed, the forfeiture of Walker’s property was based upon the trial court’s determination that Walker’s answer was insufficient, and its subsequent grant of the State’s motion to strike the answer for that reason. See OCGA § 16-13-49 (o) (4) (“If... no [timely] answer has been filed, the court shall order the disposition of the seized property....”); State of Ga. v. Adams, 264 Ga. 842, 842 (1) (452 SE2d 117) (1995) (“The 60-day time period [in which to conduct a forfeiture hearing] does not commence to run until the filing of a sufficient answer, as determined by the requirements of OCGA § 16-13-49 (o) (3).” (punctuation omitted)); McFarley v. State of Ga., 268 Ga. App. 621, 623 (602 SE2d 341) (2004) (the failure to file a sufficient answer is the equivalent of filing no answer at all and results in a forfeiture of the subject property without triggering the hearing requirement set forth in OCGA § 16-13-49 (o) (5)); see also State of Ga. v. Alford, 264 Ga. 243, 245 (2) (b) (444 SE2d 76) (1994). Because the trial court’s ruling with respect to Walker’s answer is neither enumerated as error nor challenged in the appellate brief, Walker’s appeal is deemed abandoned and dismissed pursuant to Court of Appeals Rule 23 (a).

       (Emphasis supplied.)

        State v. Henderson, 263 Ga. 508, 510 (436 SE2d 209) (1993) (noting that, “the plain meaning of ‘must’ is a command, synonymous with ‘shall’ ” and “[i]f the [60] day requirement were directory, rather than mandatory, there would be no need-for a ‘good cause’ continuance”); see also The Compact Oxford English Dictionary 1137 (2d ed. 1991) (defining “must” as, inter alia, “a necessity . . . [e]ssential, mandatory, obligatory . . . .”).

        Henderson, 263 Ga. at 511.

        Id. at 511 n.7. Additionally, the trial court may continue the hearing on its own, for good cause, “without a motion by either party.” Id. And in the event that a continuance is granted, “the outermost limits of a continuance would be another 60-day period before either the matter is heard or another continuance is granted.” Blanks v. State of Ga., 240 Ga. App. 175, 178 (1) (522 SE2d 770) (1999).

        See Henderson, 263 Ga. at 510-11 (reversing judgment of conviction due to 60-day violation and ordering case dismissed); McDowell v. State of Ga., 290 Ga. App. 538, 540 (2) (660 SE2d 24) (2008) (same); Griffin v. State of Ga., 250 Ga. App. 93, 94-95 (1) (550 SE2d 138) (2001) (same). The State’s argument that the proper remedy for an untimely hearing is the claimant’s right to request a return of the property pending further proceedings is misplaced. The State is confusing the remedy for a failure to conduct a timely hearing or obtain a good-cause continuance with the remedy for failing to initiate forfeiture proceedings within 60 days after the date on which the property is seized. The former, as noted supra, requires dismissal of the State’s complaint. The latter requires a return of the property pending further proceedings. See OCGA § 16-13-49 (h) (3) (“If the [S]tate fails to initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within the time limits specified in paragraphs (1) and (2) of this subsection, the property must be released on the request of an owner or interest holder, pending further proceedings pursuant to this Code section, unless the property is being held as evidence.”); Smith v. State of Ga., 301 Ga. App. 870, 872 (690 SE2d 208) (2010).

       There is no evidence that Goodwin consented to a hearing date outside of the 60-day deadline. See Griffin, 250 Ga. App. at 94-95 (1) rejecting the State’s argument that the claimants waived their right to a speedy resolution of their property rights by failing to object when the hearing was scheduled on a date outside the mandatory 60-day period). Compare Turner v. State of Ga., 234 Ga. App. 878, 879 (508 SE2d 223) (1998) (claimant waived the 60-day requirement by seeking a continuance of the forfeiture hearing to a date outside the statutory deadline).

        See Henderson, 263 Ga. at 510 (dismissing the forfeiture complaint when the hearing was held five months after service of the complaint); Williams v. State of Ga., 302 Ga. App. 617, 618-19 (691 SE2d 385) (2010) (dismissing forfeiture complaint when hearing took place 69 days after the grant of the last continuance); McDowell, 290 Ga. App. at 540 (dismissing forfeiture complaint when no hearing was held until 175 days after claimant’s counsel filed a notice of conflict in response to the initial hearing, scheduled within the 60-day window); Griffin, 250 Ga. App. at 94-95 (1) (dismissing the forfeiture complaint when hearing was held 63 days after second continuance was granted); see also Jackson v. State of Ga., 212 Ga. App. 340 (441 SE2d 811) (1994). Cf. In the Interest of Doe, 319 Ga. App. 574 (737 SE2d 581) (2013) (holding that the trial court’s order issued in violation of the mandatory statutory deadline was void ab initio).


author: Branch, Judge.

text:
    A12A2112.
    SHERMAN v. DEVELOPMENT AUTHORITY OF FULTON COUNTY et al.
    (739 SE2d 457)
   Branch, Judge.

This appeal arises from a revenue bond validation proceeding in which the State of Georgia petitioned the Fulton County Superior Court for a judgment approving the issuance of certain taxable revenue bonds by the Development Authority of Fulton County (“DAFC”) and validating both the bonds and related bond security documents. John Sherman, a resident of Fulton County, attempted to make himself a party to the proceeding by filing a document entitled “Notice of Becoming Party to Bond Validation Petition Proceeding,” and shortly thereafter he filed objections to the validation petition. DAFC filed a motion to strike Sherman’s pleadings on the grounds that he had failed to follow the statutory procedure for intervening in a civil action. The trial court granted that motion and also entered an order validating the bond issuance. Sherman now appeals from both the order striking his pleadings and the order validating the issuance of the bonds. With respect to the striking of his pleadings, Sherman argues that the court below erred in finding that Georgia’s Civil Practice Act (“CPA”) applies to bond validation proceedings and thereby dictates the procedure by which a private citizen may become a party to such an action. Sherman also challenges the bond validation order on a number of grounds.

We agree with the trial court that the intervention procedure contained in the CPA applies to bond validation proceedings. Given Sherman’s failure to follow that procedure, therefore, we affirm the order of the trial court striking his pleadings. Moreover, because he was not properly a party to the proceedings below, Sherman has no standing to appeal the bond validation order. Accordingly, we decline to address Sherman’s attempted appeal of that order.

The facts in this case are undisputed and we therefore review the record de novo to determine whether the trial court committed plain legal error. Sherman v. Dev. Auth. of Fulton County, 317 Ga. App. 345, 346 (730 SE2d 113) (2012) (“Sherman II").

The record shows that the purpose of the revenue bonds at issue is to finance a data center and related facilities in Fulton County (“the Project”) that, once completed, will be leased to T5@Atlanta, LLC (“T5”). Thus, among other things, the petition sought to create a bond transaction leasehold estate where, in consideration for the issuance of the bonds, T5 agreed to transfer fee simple title in the Project to DAFC, and DAFC and T5 agreed to execute a lease agreement under which T5 would have the right to possession of the Project for a term of ten years. At the conclusion of the lease term, T5 would have the right to acquire the Project for nominal consideration.

As part of the transaction, the Fulton County Board of Tax Assessors (the “Board”), DAFC, and T5 proposed to enter into a Memorandum of Agreement (the “Memorandum”) which establishes the valuation methodology the Board is to use in assessing ad valorem taxes on the leasehold estate.

The State’s bond validation petition and complaint were filed on December 7, 2011, and a hearing on the matter was scheduled for December 21, 2011. On December 19, 2011, Sherman filed, through counsel, his notice of intent to make himself a party to the proceeding. On December 21, the day of the scheduled hearing, Shermán filed a document captioned “Objections to Bond Validation Petition,” wherein he requested, inter alia, that the trial court provide an order setting forth findings offact and conclusions oflaw pursuant to OCGA § 9-11-52 (a), “including without limitation, specific factual findings regarding the evidence presented regarding the valuation of the proposed leasehold estate . . . according to the Harris factors, as required under Sherman [7], as well as conclusions of law regarding the constitutional issues raised by Intervenor Sherman.” Also on December 21, DAFC filed its motion to strike Sherman’s pleadings on the grounds that Sherman had failed to follow the procedure for intervening in a civil action set forth in OCGA § 9-11-24, because he did not file a motion to intervene. The court below entered the order granting DAFC’s motion on the same day it was filed. Also on that day, the court entered an order validating the bond issuance. This appeal followed.

1. Sherman contends that the court below erred in finding that, because he did not follow the intervention procedure set forth in OCGA § 9-11-24, he was not a proper party to these proceedings. We find no error.

A bond validation proceeding such as the one at issue is governed by Georgia’s Revenue Bond Law, OCGA § 36-82-60 et seq., and that law allows a private citizen to become a party to such proceedings. Specifically, OCGA § 36-82-77 (a) provides, in relevant part:

. . . 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 [bond confirmation and validation] hearing and any party thereto who is dissatisfied with the judgment of the court confirming and validating the issuance of the bonds or refusing to confirm and validate the issuance of the bonds and the security therefor may appeal from the judgment under the procedure provided by law in cases of injunction. Only a party to the proceedings at the time the judgment appealed from is rendered may appeal from such judgment.

Sherman argues that because this statutory provision neither uses the word “intervene” nor explicitly states that the CPA applies to a citizen seeking to become a party to a bond validation proceeding, such a citizen is not required to follow the intervention procedure set forth in OCGA § 9-11-24. Thus, he concludes that OCGA § 36-82-77 (a) allows him to become a party to the bond validation proceeding simply by filing a notice of his intent to do so. In support of his argument, Sherman relies on this Court’s decision in Hay v. Dev. Auth. of Walton County, 239 Ga. App. 803, 804 (521 SE2d 912) (1999). In Hay, we considered a different provision of the Revenue Bond Law, OCGA § 36-82-23, which contains language virtually identical to that found in OCGA § 36-82-77 (a). In interpreting that language, this Court held that a citizen of a county seeking to become a party to a bond validation proceeding was not required to follow the procedure for intervention set forth in OCGA § 9-11-24, reasoning:

[T]he statute does not contain the word “intervene,” nor does it refer to the procedural requirements of OCGA § 9-11-24. If the legislature, in enacting OCGA § 36-82-23, intended the strict intervention procedures of OCGA § 9-11-24 to be used, it would have referenced the statute or at least used the term “intervene” or “intervention” when referring to the objecting residents. Cf. ADC Constr. Co. v. Hall, 191 Ga. App. 33, 34 (1) (381 SE2d 76) (1989).

Hay, 239 Ga. App. at 804.

On appeal, Sherman argues that the foregoing rationale should apply to revenue bond validation proceedings initiated under OCGA § 36-82-77 (a). For reasons explained below, however, we find that the Hay Court erred in holding that OCGA § 9-11-24 does not apply to bond validation proceedings.

In determining whether the intervention procedure set forth in the CPA applies to bond validation proceedings, the Hay Court failed to address OCGA § 9-11-81, which provides that the CPA

shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, intervention, evidence, motions, summary judgment, relief from judgments, and the effect of judgments shall apply to all such proceedings.

(Emphasis supplied.) OCGA § 9-11-81.

The parties do not dispute that a bond validation proceeding, as a proceeding that is created by statute, constitutes a “special statutory proceeding” within the meaning of OCGA § 9-11-81. See also Anderson v. Flake, 267 Ga. 498, 500 (1) (480 SE2d 10) (1997) (the process for obtaining an extraordinary remedy, “which exists solely by virtue of statute[,]” is a special statutory proceeding to which the CPA applies); Rojas v. State of Ga., 269 Ga. 121, 122 (2) (498 SE2d 735) (1998) (acomplaintforforfeitureofpropertyfiledpursuanttoOCGA § 16-13-49 is a special statutory proceeding within the meaning of OCGA § 9-11-81); Hardin Constr. Group v. Fuller Enterprises, 265 Ga. 770, 771 (462 SE2d 130) (1995) (“an arbitration award confirmation proceeding filed pursuant to the Georgia Arbitration Code ... is a special statutory proceeding”) (footnote omitted). Thus, “pursuant to the explicit statutory language of OCGA § 9-11-81 and [given] the absence of any provision to the contrary in the Georgia [Revenue Bond Law],” the provisions of the CPA addressing intervention apply to bond validation proceedings. Hardin Constr. Group, 265 Ga. at 771. Our holding to the contrary, found in Hay, 239 Ga. App. at 804-805 is hereby overruled.

In reaching this conclusion, we note that the fact that the Revenue Bond Act fails to mention the word “intervention” or otherwise specify the procedure by which a citizen may make himself a party to a bond validation proceeding does not create a conflict between that statute and the CPA. Rather, the statute’s “silence” on this issue means that the CPAapplies. See Anderson v. Flake, 270 Ga. 141, 142 (1) (508 SE2d 650) (1998) (under OCGA § 9-11-81, the CPA applies to all statutory proceedings “[i]n the absence of an express provision in the [relevant] statute that conflicts with the CPA”); General Acceptance Corp. v. Bishop, 126 Ga. App. 421, 421-422 (1) (a) (190 SE2d 825) (1972) (the fact that the statute at issue does not provide for all the remedies allowed under the CPA does not mean that it conflicts with the CPA, and the additional remedies allowed under the CPA must be allowed in the special statutory proceeding); Phagan v. State, 287 Ga. 856, 859 (700 SE2d 589) (2010); Rojas, 269 Ga. at 122-123 (2).

Accordingly, because Sherman failed to follow the statutory process for intervening in this action, the trial court acted properly in striking his pleadings.

Decided March 7, 2013

Reconsideration denied April 12, 2013

John F. Woodham, for appellant.

Paul L. Howard, Jr., District Attorney, Ichter Thomas, Cary Ichter, S. Renee Huskey, Sutherland, Asbill & Brennan, Ramon R. Plowden, Thomas W. Curvin, Schiff Hardin, Lewis C. Horne, Jr., for appellees.

2. Sherman also seeks to appeal the trial court’s order validating the issuance of the bonds. Under OCGA § 36-82-77 (a), however, only one who is “a party to the proceedings at the time the judgment appealed from is rendered may appeal from such judgment.” Sherman’s failure to intervene means that he was not properly a party to the proceedings below, and therefore he has no standing to appeal the bond validation order. Coffield v. Kuperman, 269 Ga. App. 432, 434 (604 SE2d 288) (2004); In the Interest of J. C. H., 224 Ga. App. 708, 710 (2) (482 SE2d 707) (1997). See also OCGA § 5-6-33 (a) (1) (only parties to the proceeding may appeal from the judgment, decision, or decree entered by the trial court). Accordingly, we decline to address Sherman’s appeal of the validation order. S ee Inthe Interest of J. C. H., 224 Ga. App. at 710 (2).

For the reasons set forth above, the order of the court below striking Sherman’s pleadings for failure to follow the statutory intervention procedure is affirmed. Furthermore, given that Sherman lacks standing to challenge the trial court’s order validating the issuance of the bonds, we also affirm that order.

Judgment affirmed.

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

       Abond 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 from such taxes 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). And as DAFC explains in its brief, “to provide predictability to the [business] regarding the tax consequences of the bond transaction, the development authority and the [business] typically join with the local tax assessor to memorialize an agreement setting forth the method by which the leasehold estate will be valued for tax purposes over the term of the lease.”

       No hearing transcript appears in the record, but the trial court’s validation order references the hearing and the parties do not dispute that a hearing occurred. Sherman concedes that at the hearing, he offered no evidence, either personally or through counsel.

       OCGA § 9-11-52 (a) states, in relevant part, that “in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.”

       Under Harris, to prove that it acted properly in valuing a leasehold estate such as the one at issue, a taxing authority must demonstrate that the valuation method used was neither arbitrary nor unreasonable. It may make such a showing through evidence establishing that its valuation method followed an authorized appraisal approach — i.e., an approach that takes into account factors such as “the terms and conditions” of the lease, “the nature and location of the property involved,” the “fair market value of similarly leased property,” and the “prevailing rents in the area.” 248 Ga. at 281 (3). See also Sherman I, 288 Ga. at 92.

       Under OCGA § 9-11-24, a person seeking to intervene, including those intervening under a statute granting them such a right, “shall serve a motion to intervene upon the parties as provided in Code Section 9-11-5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.” OCGA § 9-11-24 (c).

       While OCGA § 36-82-77 deals exclusively with the validation procedure for revenue bonds, OCGA § 36-82-23 deals with the validation procedure for other types of bonds a municipality or other local government entity might seek to issue.

       Sherman’s counsel asserted at oral argument that any decision that OCGA § 9-11-24 applied to bond validation proceedings should be applied prospectively only — i.e., that it should not be applied to Sherman in this case. We disagree. Here, DAFC’s motion to strike Sherman’s pleadings put him on notice of the possibility that he might not properly be a party to the proceedings below. At that point, had Sherman simply appeared and moved to intervene, the trial court would have been constrained to grant that motion. See OCGA §§ 36-82-77 (a) (granting citizens a statutory right to intervene anytime “at or before the time set for the [bond validation] hearing”); 9-11-24 (a) (1) (a trial court must grant a timely motion to intervene based upon a statutory right of intervention). Despite this fact, however, Sherman declined to attend the bond validation hearing, where the motion to strike was heard and decided. Nor did Sherman take advantage of other procedural avenues available to him below, such as filing a motion for reconsideration of the order striking his pleadings in conjunction with a motion to intervene. Given these circumstances, we do not believe that Sherman has been caught unaware of the possibility that he might not be a proper party to this litigation.


author: PHIPPS, Presiding Judge.

text:
    A12A2248.
    FORSH et al. v. WILLIAMS et al.
    (740 SE2d 297)
   PHIPPS, Presiding Judge.

Frankie Forsh and Chet Forsh appeal a trial court’s grant of James White’s motion to be dismissed from a tort action on the basis that the Forshes failed to state a claim upon which relief could be granted against White. The Forshes contend that the trial court erred in: (1) dismissing White based upon their alleged failure to state a claim upon which relief could be granted against him; and (2) failing to address their assertion of a cause of action against White for negligence under federal law governing “Section 8 housing and ‘H[ousing] Quality Standards.’ ” For the following reasons, we reverse the trial court’s grant of White’s motion to dismiss, and remand this case to the trial court.

1. The Forshes contend that the trial court improperly granted White’s motion to dismiss for failure to state a claim upon which relief could be granted. We agree.

Under the Civil Practice Act a motion to dismiss a complaint for failure to state a claim upon which relief may be granted should not be granted unless averments in the complaint disclose with certainty that plaintiffs would not be entitled to relief under any state of facts that could be proven in support of the claim. While conclusions may not generally be used in affidavits to support or oppose summary judgment motions, conclusions may generally be pleaded under the Civil Practice Act. U nder this “notice” theory of pleading it is immaterial whether a pleading states “conclusions” or “facts” as long as fair notice is given, and the statement of claim is short and plain. The true test is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly, and not whether as an abstract matter it states “conclusions” or “facts.” There are no prohibitions in the rules against pleading conclusions and, if pleaded, they may be considered in determining whether a complaint sufficiently states a claim for relief. It is immaterial whether an allegation is one of fact or conclusion if the complaint effectively states a claim for relief.

“[A] plaintiff is not required to plead in the complaint facts sufficient to set out each element of a cause of action so long as it puts the opposing party on reasonable notice of the issues that must be defended against.” “If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” “We review the trial court’s ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under the de novo standard of review.”

So viewed, the Forshes alleged in their complaint that White owned real property which he leased to certain tenants. Those tenants kept on the premises dogs that on July 5, 2010 suddenly and without provocation attacked Frankie Forsh and inflicted injuries upon her as she walked on a roadway. The Forshes further alleged that White was negligent and reckless in failing to adequately screen his tenants, failing to enter into an agreement whereby the tenants were prohibited from having and keeping vicious dogs, failing to adequately inspect the premises, failing to comply with legal requirements under state and federal law for ownership of rental property, and “other specifications of negligence to be proven at trial.”

In his motion to dismiss, White asserted that assuming the truth of all the pertinent facts alleged in the complaint, the Forshes still failed to state a claim against him under OCGA § 44-7-14, because “any and all injuries that [the Forshes] suffered... were the result of a dog attack and were not the result of injuries arising from defective construction or from injuries rising from the failure to keep [the premises] in repair.” The Forshes then filed an amended complaint, alleging that White was negligent and reckless for, pertinently,

[fJailing to keep the premises in repair as required under OCGA § 44-7-14 by not installing an appropriate gate on the deck from which the dogs escaped and attacked Ms. Forsh; failing to install fencing in the yard after having knowledge of the presence of the dogs; and failure to make other repairs to be shown at trial.

The Forshes further alleged that White was negligent and reckless for failing to comply with federal law governing “Housing Quality Standards” for “Section 8” housing.

OCGA § 44-7-14, entitled “Tort liability of landlord,” provides:

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

After a hearing on White’s motion, the trial court, citing OCGA § 44-7-14, held:

[Frankie Forsh] does not challenge the assertion that White was an out-of-possession landlord. Rather, she insists that Defendant White is liable for his failure to repair the premises. In her [amended] complaint, [Frankie Forsh] alleges that White is liable based on his “failure to install an appropriate gate on the deck” or “install fencing after having knowledge of the presence of the dogs.” Yet in the case law [Frankie Forsh] herself cites, a “repair” contemplates an existing structure which has become imperfect, and means to supply in the original structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be. . . . There being no allegations that there was some fence in need of restoration to its original condition due to loss or destruction, White cannot be held liable under his statutory duty as an out-of-possession landlord to keep the premises in repair.

“An out-of-possession landlord’s tort liability to third persons is subject only to the statutory provisions of OCGA § 44-7-14.” In their appellate brief, the Forshes do not challenge the finding that White was an out-of-possession landlord. And they admit that OCGA § 44-7-14 is the Georgia statute that governs White’s tort liability. They argue that the trial court should have liberally construed their complaint, which alleged a case against White that “could have been proven in several ways.”

The trial court, in its order, found that although the Forshes alleged in their amended complaint that White was liable based on his “failure to install an appropriate gate on the deck” or his failure to “install fencing after having knowledge of the presence of the dogs,” there was no allegation that White was liable based on his failure to repair “some fence.” The trial court did not consider that the Forshes had alleged that White was negligent and reckless due to his “failure to make other repairs” — an allegation, which, if proven, could entitle the Forshes to relief against White.

A complaint fails to state a claim upon which relief can be granted and warrants dismissal or judgment on the pleadings only if its allegations disclose with certainty that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief he seeks. Put another way, if, within the framework of the complaint, evidence may he introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient____[Wjhen we assess the sufficiency of the complaint on appeal, we must accept the allegations of fact that appear in the complaint and view those allegations in the light most favorable to the plaintiff.

Because it was possible for the Forshes to introduce evidence showing that White had failed to make repairs on the property, and that such failure(s) resulted in the injuries allegedly sustained by Frankie Forsh, the trial court erred in dismissing the tort claim against White for failing to state a claim upon which relief could be granted. By our ruling, “[w]e express no opinion about the credibility of any facts alleged by [the Forshes], nor do we speculate about the likelihood of [the Forshes] being able to present evidence to support . . . the allegations contained in [their] complaint.”

2. The Forshes contend that the trial court erred in failing to address their assertion of a cause of action against White for negligence under 42 USCS §§ 1437f and 1437z-3.

The Forshes alleged in their complaint that at the time of the dog attack, White was negligent and reckless for

[f]ailing to comply with the requirements under 42 USCS § 1437 et seq., commonly referred to as “Section 8,” including, but not limited to, failure to comply with “Housing Quality Standards” [“HQS”] requiring adequate infrastructure to keep the dogs confined either on the deck, in a suitable fence, or otherwise.

The purpose of 42 USCS § 1437 (the United States Housing Act of 1937) is

(1) to promote the general welfare of the Nation by employing the funds and credit of the Nation, as provided in this Act — (A) to assist States and political subdivisions of States to remedy the unsafe housing conditions and the acute shortage of decent and safe dwellings for low-income families; (B) to assist States and political subdivisions of States to address the shortage of housing affordable to low-income families; and (C) consistent with the objectives of this title, to vest in public housing agencies that perform well, the maximum amount of responsibility and flexibility in program administration, with appropriate accountability to public housing residents, localities, and the general public.

“Section 8 housing must comply with HQS that HUD[] prescribes.”

However, “violating statutes and regulations does not automatically give rise to a civil cause of action by an individual claiming to have been injured from a violation thereof.” Although 42 USCS §§ 1437f and 1437z-3 establish policy of the United States concerning low-income housing standards, the Act does not expressly provide a cause of action for damages under those provisions for noncomplianee. And the Forshes have pointed to nothing in the statutory schemes that shows any legislative intent for noncompliance to create a civil cause of action against a landlord for damages by victims of an alleged violation.

A plaintiff asserting an implied right of action under a federal statute bears the relatively heavy burden of demonstrating that Congress affirmatively contemplated private enforcement when it passed the statute. In other words, [a plaintiff] must overcome the familiar presumption that Congress did not intend to create a private right of action.

The Forshes, in their appellate brief, make no argument in their favor on this point; instead, they state that they found “no reported cases... as to whether landlords who lease houses to tenants under what is commonly referred to as Section 8 can be held liable to third parties for violating federal law requiring decent, safe, and sanitary housing as far [as] physical condition requirements.” The Forshes have not met their burden.

We have held that “[a]n out-of-possession landlord’s tort liability to third persons is subject only to the statutory provisions of OCGA § 44-7-14.” The Forshes’ claim that the trial judge erred by not addressing their assertions regarding White’s negligence under 42 USCS § 1437 presents no basis for reversal.

Judgment reversed and case remanded.

Ellington, C. J., concurs. Dillard, J., concurs fully as to Division 2 and concurs in judgment only as to Division 1.

Decided March 20, 2013

Reconsideration denied April 12, 2013.

Jack E. Clay, for appellants.

Brian C. McCarthy, for appellees.

       The Forshes filed suit against Shawn Williams, Akmad Coleman, Eugenia Watkins, and James White. Williams, Coleman, and Watkins failed to answer the complaint, and the trial court ruled that they had therefore admitted liability. Atrial on the' issue of damages was held, and subsequently, the trial court awarded damages against Williams, Coleman, and Watkins. The Forshes do not appeal the trial court’s award of damages against Williams, Coleman, and Watkins.

        Ledford v. Meyer, 249 Ga. 407, 408-409 (2) (290 SE2d 908) (1982) (citations, punctuation and emphasis omitted).

        TechBios, Inc. v. Champagne, 301 Ga. App. 592, 593 (688 SE2d 378) (2009) (footnote omitted).

        Koehler v. Massell, 229 Ga. 359, 361 (1) (191 SE2d 830) (1972) (citations and punctuation omitted).

        TechBios, Inc., supra (footnote omitted).

       The Forshes filed also a response in opposition to White’s motion to dismiss.

         Ranwez v. Roberts, 268 Ga. App. 80, 81 (1) (601 SE2d 449) (2004) (citation omitted).

       See OCGA § 44-7-14.

        Bush v. Bank of New York Mellon, 313 Ga. App. 84, 89 (720 SE2d 370) (2011) (citations and punctuation omitted; emphasis supplied).

       See Scouten v. Amerisave Mtg. Corp., 283 Ga. 72, 73-74 (2) (656 SE2d 820) (2008); TechBios, supra at 594-595 (1) (a); Peacock Constr. Co. v. Erickson’s, Inc., 121 Ga. App. 544, 545 (2) (174 SE2d 276) (1970) (allegations of a complaint to the effect that the defendants intentionally and maliciously published false, libelous and defamatory statements about the plaintiff which subjected the plaintiff to ridicule and contempt and which damaged plaintiff’s good name and reputation, stated a claim for which relief may be granted and sufficiently notified the defendants of the basis therefor so as to comply with the very minimal requirements of notice pleadings).

        Speedway Motorsports v. Pinnacle Bank, 315 Ga. App. 320, 321, n. 3 (727 SE2d 151) (2012). See Harrison v. Higgle, 225 Ga. 211, 213 (2) (167 SE2d 395) (1969) (holding that although appellate court had previously ruled that petition was not subject to dismissal for failure to state a claim, even if it was established as the law of the case that if the plaintiffs proved their case as laid a finding for them would be authorized, it did not follow that the mere proving of the facts alleged in the petition demanded a finding of the ultimate conclusion, so as to authorize the grant of a summary judgment; grant of plaintiffs’ summary judgment, reversed); Gold Creek SL v. City of Dawsonville, 290 Ga. App. 807, 813 (2) (660 SE2d 858) (2008) (holding that although the city’s pleadings were sufficient to withstand a motion to dismiss, the evidence did not establish the city’s entitlement to summary judgment).

       42 USCS § 1437 (a) (1). See Crochet v. Housing Auth. of the City of Tampa, 37 F3d 607, 610-611 (III) (A) (11th Cir. 1994); Jefferies v. District of Columbia, Civil No. 11-1159 (RCL), 2013 U. S. Dist. LEXIS 1770, *81 (TV) (C) (1) (D.D.C. Jan. 7, 2013).

        Reyes-Garay v. Integrand Assurance Co., 818 FSupp.2d 414, 417 (I) (D.P.R. 2011) (“HUD” is the United States Department of Housing and Urban Development).

       Id. at 429 (IV) (B) (citations omitted); 42 USCS § 1437f (o) (8).

        U. S. Bank, N.A. v. Phillips, 318 Ga. App. 819, 825 (3) (734 SE2d 799) (2012) (citation and punctuation omitted).

       See Jefferies, supra at *1-3, 75, 78-82 (IV) (C) (1) (holding that nothing in the text of 42 USCS § 1437f indicates an intent to establish a private right of action; mother of slain child faulted housing authority for failing to enforce eviction standards, and mother sought damages against housing authority for killing which allegedly occurred in or near public housing units); Reyes-Garay, supra at 430-431 (IV) (B) (“the Court finds that low income families in need of affordable housing are the intended beneficiaries of Sections 1437; however, these provisions contain only broad declarations of housing policy which Congress did not intend to be transferred into a private right of action for monetary damages. Simply we cannot find that Congress intended to create a private right of action [to individuals suing HUD over the poor quality of their Section 8 housing] under this statute and, accordingly, [tenants’] claims under the U. S. Housing Act are hereby DENIED.”).

       See generally Govea v. City of Norcross, 271 Ga. App. 36, 41-42 (1) (608 SE2d 677) (2004); Troncalli v. Jones, 237 Ga. App. 10, 12-13 (1) (514 SE2d 478) (1999).

        Reyes-Garay, supra at 430 (IV) (B) (citations and punctuation omitted); Cenzon-Decarlo v. Mount Sinai Hosp., 09 CV 3120 (RJD), 2010 U. S. Dist. LEXIS 3208, *8 (E.D. N.Y. 2010) (“The Supreme Court has held that ‘[t]he question whether Congress... intended to create a private right of action [is] definitively answered in the negative’ where a ‘statute by its terms grants no private rights to any identifiable class.’ ”) (punctuation omitted), citing Gonzaga Univ. v. Doe, 536 U. S. 273, 283-284 (122 SC 2268, 153 LE2d 309) (2002).

        Ranwez, supra (emphasis supplied).