author: DOYLE, Presiding Judge.

text:
    A11A1614.
    BOYD v. THE STATE.
    (726 SE2d 135)
   DOYLE, Presiding Judge.

Following a bench trial, Toddric Jamel Boyd appeals from his conviction of contributing to the delinquency of a minor while drinking beer with a 16-year-old friend in a park. Boyd contends that there was insufficient evidence to support the guilty verdict, both as to the offense itself and as to venue. For the reasons that follow, we affirm.

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

So viewed, the evidence shows that an officer received a call from dispatch reporting three young males drinking beer in an elementary school park late one September afternoon. The officer drove to the location and saw the three young men sitting on a bench: Boyd and Shannon Owens, who were both at least 21 years old, and 16-year-old A. K. The three males saw the officer drive up, and the officer briefly drove away to see if they would leave the area. When they did not, the officer returned and saw A. K. reach below the bench into a black plastic bag that the officer later determined contained six empty beer cans and six full beer cans. The officer approached the three young men and noticed the smell of alcohol coming from each of them. The officer asked them for identification and learned that A. K. was under the age for legal alcohol possession. The officer asked A. K. to blow into an aleo-sensor, and A. K. complied, registering a 0.025 reading. Boyd explained that they had walked down to the park together from Owens’s nearby house, so they could “hang out” at the park. Shortly thereafter, the officer arrested Boyd and Owens and returned A. K. to the custody of his parents.

Boyd was indicted for one count of contributing to the delinquency of a minor, and following a bench trial, he was found guilty by the trial court and sentenced to twelve months of probation and a $250 fine. He now appeals.

1. Boyd contends that the evidence failed to support a finding that he committed the offense because, he argues, the evidence did not show anything other than he was in A. K.’s presence while A. K. drank beer. OCGA § 16-12-1 (b) (1) provides, in relevant part, that “[a] person commits the offense of contributing to the delinquency ... of a minor when such person . . . [kjnowingly and willfully encourages, causes, abets, connives, or aids a minor in committing a delinquent act.” A “delinquent act” includes “[a]n act designated a crime by the laws of this state, ” such as possession of alcohol by a minor. The term “connive” is not defined in the statute, but its usage here is plain and unambiguous. Black’s Law Dictionary defines the term to mean, in part, “[t]o knowingly overlook another’s wrongdoing,” and Webster’s dictionary defines the word to mean, in part, to “fail to take action against a known wrongdoing or misbehavior . . . [or] to be . . . secretly in favor or sympathy.”

Here, the evidence included testimony by the officer that A. K. registered positive on an alco-sensor and that A. K. was reaching into the bag containing the beer as he sat on a park bench with Boyd, whose breath also smelled of alcohol. Boyd conceded at trial that he saw A. K. drink beer at the park. Further, the officer testified that Boyd explained to him that the three young men had been at Owens’s house and walked together to the park, where the beer was consumed. This evidence supports an inference that Boyd went with A. K. to the park, where they would be unsupervised, for the purpose of drinking beer together. Although there is no evidence as to who actually provided the beer to A. K., we conclude that Boyd’s conduct in this case rose at least to the level of conniving A. K.’s possession and consumption of alcohol. While we are mindful that mere presence at the scene of a crime generally is not sufficient to demonstrate criminal conduct, the facts of this case support an inference that Boyd actively participated in the connivance. Therefore, the evidence was sufficient to support Boyd’s conviction of contributing to the delinquency of a minor.

2. Boyd also challenges the sufficiency of the evidence showing that venue was proper in Cobb County, where he was tried. In every criminal case, “venue must be proved beyond a reasonable doubt and . . . prosecutors must commit themselves to doing so.” As pointed out by Boyd, there was no clear direct testimony that the offense was committed in Cobb County. Nevertheless, there was testimony by the officer that Boyd had told him “that [A. K.] had just been in Cobb County for an hour, and they had left the other gentleman’s house and walked down to the park together to spend time together.” While somewhat vague, this testimony supports a finding that A. K. had been in the present county, Cobb County, for an hour when the officer confronted them. Further, the arresting officer was on duty for the Cobb County Police Department when he received the call from dispatch to investigate the park. This evidence, when taken together and construed in favor of the verdict, was sufficient to prove that venue was proper in Cobb County.

Decided March 19, 2012.

H. Maddox Kilgore, Carlos J. Rodriguez, for appellant.

Barry E. Morgan, Solicitor-General, Jeffrey P. Kwiatkowski, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

       OCGA § 16-12-1 (b) (1).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See OCGA § 3-3-23 (a) (2) (no person under the age of 21 shall knowingly possess any alcoholic beverage).

       (Emphasis supplied.)

       See OCGA §§ 16-12-1 (a) (1); 15-11-2 (6).

       See OCGA § 3-3-23 (a) (2).

       Black’s Law Dictionary 344 (9th ed. 2009).

       Webster’s Third New International Dictionary 481 (1981). See generally OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.”); Tatis v. State, 289 Ga. 811, 813 (716 SE2d 203) (2011) (relying on Black’s Law Dictionary and Webster’s Third International Dictionary to interpret unambiguous words in a statute).

       See generally Navarrete v. State, 283 Ga. 156, 158 (1) (656 SE2d 814) (2008).

       See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (“As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.”).

        State v. Prescott, 290 Ga. 528 (722 SE2d 738) (2012).

       See id. at 529 (the fact that investigating officer was an employee of the Screven County Sheriffs Office was, in part, evidence that the offense took place in Screven County); Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002) (public employees are assumed to be acting within their proper jurisdiction). Compare In the Interest of B. R., 289 Ga. App. 6, 8-9 (2) (656 SE2d 172) (2007) (county of employment of investigating officer is not alone sufficient to prove venue).


source: Caselaw Access Project

license: Public Domain

text:
    A11A1653.
    TRENDMARK HOMES, INC. et al. v. BANK OF NORTH GEORGIA.
    (726 SE2d 138)
   DOYLE, Presiding Judge.

Trendmark Homes, Inc., and its president, Gerald W. Rose (collectively “Trendmark”), appeal from the grant of summary judgment to Bank of North Georgia (the “Bank”), in the Bank’s suit on three promissory notes executed by Trendmark Homes and personal guaranties executed by Rose. Trendmark contends that the trial court erred by ignoring alleged factual disputes created by Rose’s affidavit filed by Trendmark in response to the Bank’s motion for summary judgment. Because the affidavit does not create a genuine dispute of fact material to the Bank’s claims or to the evidence supporting the Bank’s motion, we affirm.

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). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that on November 5, 2009, Trendmark Homes executed a promissory note in favor of the Bank with a principal amount of $342,786. The same day, Rose executed an unconditional personal guaranty of the note. On January 5, 2010, Trendmark Homes executed two additional promissory notes in favor of the Bank, with principal amounts of $457,920 and $1,101,650. On the same day, Rose again executed an unconditional personal guaranty of both notes. Each note was separately secured by security deeds to real property that Trendmark planned to develop.

After Trendmark Homes defaulted and Rose failed to satisfy the guaranty, the Bank filed this breach of contract action on the notes. Trendmark Homes and Rose filed an answer denying their liability but admitting that the promissory notes and guaranties attached to the complaint were true copies of what they purported to be. The answer also asserted three affirmative defenses: estoppel, waiver, and mutual departure from the contracts. The Bank moved for summary judgment, attaching the notes, guaranties, and statements of account, authenticating the documents with an affidavit by Wilson Shoemaker, an assistant vice president at the Bank with whom Trendmark had dealt. Trendmark responded with a three-page brief supported by an affidavit by Rose. Based on the briefs and record, the trial court granted the Bank’s motion, entering a judgment for the principal and pre- and post-judgment interest based on the notes and account statements. Trendmark now appeals.

Trendmark argues that the trial court ignored Rose’s affidavit and failed to recognize the factual dispute created by the sworn statements therein. We disagree.

Under OCGA § 9-11-56 (c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In a suit to enforce a promissory note, “[i]t is well established that a plaintiff. . . establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.”

Here, the Bank provided the authenticated loan and guaranty documents evincing the debt of Trendmark Homes and Rose, which documents were not disputed by either debtor, and an affidavit attesting to the amounts owed in account statements. Trendmark did not dispute the authenticity of the notes or guaranties; instead, it filed an affidavit by Rose outlining the substance of several meetings and conversations that he had with Bank personnel leading up to the litigation. In those conversations and meetings, the Bank and Rose discussed various options for how Trendmark might perform on its debt obligations. Those discussions included options such as obtaining the Bank’s permission to lease certain property securing the loans, negotiating a lower payoff amount to facilitate a short sale, and lowering the interest rate. The Rose affidavit alleges various occasions when Bank personnel reversed their position during those negotiations.

Even viewing allegations in the affidavit in the light most favorable to Trendmark, those averments do not demonstrate facts that change the indebtedness evinced by the loan documents. At best, the affidavit demonstrates an attempt at negotiation by the Bank in the process of collecting on the debts, but the affidavit contains no evidence that would render Trendmark’s obligations under the loan agreements unenforceable, waived, or modified.

Further, the promissory notes contain clauses whereby Trendmark Homes waived its right to require the Bank to demand payments due or provide notice of nonpayment, and Trendmark Homes agreed that if the Bank failed to declare an event a default, the Bank did not waive its right to later consider the event a default if it continued or repeated. Moreover, the loan documents, by their express terms, cannot be modified except as agreed to by the Bank in writing, and Rose’s guaranties are absolute and unconditional, and they include waivers of all defenses of Trendmark. Trendmark does not assert any ambiguity in the loan documents, nor any modification in writing.

It is well established that [such] a promissory note may not be modified by the imposition of conditions not apparent on its face. . . . The note being an unconditional promise, the contract is complete as written; parol evidence may not be used to impose conditions which are not apparent from the face of the note.

Therefore, even to the extent that the Bank discussed accepting a lowered payoff amount, such negotiations not reduced to a writing executed by the Bank did not alter the written promissory notes or their enforceability. In short, Trademark’s response to the summary judgment motion provides no evidence that the agreement was altered, nor any evidence supporting the defenses of estoppel, waiver, or mutual departure. Under these circumstances, the trial court did not err by granting summary judgment to the Bank.

Decided March 19, 2012.

George M. Geeslin, for appellants.

Stokes, Lazarus & Carmichael, William K. Carmichael, Rachel Humphrey, for appellee.

Judgment affirmed.

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

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citations omitted.) Newton v. Sibley, 273 Ga. App. 343 (615 SE2d 185) (2005), citing Vandegriff v. Hamilton, 238 Ga. App. 603, 604 (519 SE2d 702) (1999). Accord Collins v. Regions Bank, 282 Ga. App. 725, 726 (639 SE2d 626) (2006). See OCGA § 11-3-308 (a), (b).

       (Citations and punctuation omitted.) Bentley v. Nat. Bank of Walton County, 175 Ga. App. 732, 733 (1) (334 SE2d 331) (1985).

       See Brooks v. McCorkle, 174 Ga. App. 132, 133 (329 SE2d 214) (1985).

       See Wachovia Bank of Ga. v. Mothershed, 210 Ga. App. 853, 854 (1) (437 SE2d 852) (1993).


text:
    A11A1836.
    DIPLOMAT CONSTRUCTION, INC. et al. v. STATE BANK OF TEXAS.
    (726 SE2d 140)
   DOYLE, Presiding Judge.

Diplomat Construction, Inc., Mukesh C. Patel, and Rajesh C. Patel appeal from a superior court’s order confirming the nonjudicial foreclosure sale of a hotel leasehold interest held by State Bank of Texas (the “Lender”) under a deed securing a $10,500,000 promissory note executed by Diplomat and guaranteed by the Patels. The Appellants contend that (1) the evidence was insufficient to show that the property brought its true market value at auction, (2) the superior court erred by sustaining a certain hearsay objection, (3) the foreclosure advertisements were erroneous and therefore impeded the auction, (4) the Lender’s conduct at the auction improperly chilled bidding at the auction, and (5) the superior court erroneously excluded certain testimony by their expert. For the reasons that follow, we affirm.

In confirming a nonjudicial foreclosure sale under OCGA § 44-14-161, the trial court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale. The trial judge in a confirmation proceeding sits as the trier of fact, and its [factual] findings and conclusions have the effect of a jury verdict. Thus, witness credibility and the weight of the evidence proffered by the parties at a confirmation hearing are to be judged by the trial court, and not this Court on appeal. For this reason, we will not disturb the trial court’s decision if there is any evidence to support it, and we view the evidence in the light most favorable to the trial court’s judgment.

So viewed, the record shows that after the Appellants defaulted on their obligations under the note and guaranties, the Lender initiated foreclosure proceedings. The Lender sent the Appellants a notice of sale under power and advertised the sale by publication, including a description of the property matching that in the deed, for four weeks prior to the foreclosure sale.

On the day of the auction, the Lender was represented by an attorney, who stayed in contact with the Lender by telephone during the auction. The Patels were present and videotaped the auction, and an unaffiliated party (Birju Patel) participated in the bidding via a representative, who had in her possession $6 million in funds with authorization to bid up to $2.5 million more. The bidding began at approximately $3 million, and both Birju and the Lender engaged in multiple rounds of bidding in $50,000 increments. On three occasions during the bidding process, the Lender’s representative checked with Birju’s representative to confirm that the representative had adequate funds to cover the pending bid. After each occasion, the bidding resumed, and when the Lender entered a bid of $4.6 million, Birju did not counter, and the Lender became the holder of the successful bid.

The Lender petitioned the superior court to confirm the sale, and a two-day evidentiary hearing was held pursuant to OCGA § 44-14-161, at which hearing the Appellants challenged the sufficiency of the sale advertisement, the regularity of the auction, and the adequacy of the selling price. Following the hearing, the superior court entered an order confirming the sale, giving rise to this appeal.

1. The Appellants first challenge the sufficiency of the evidence to show that the auction brought the true market value for the property. Under OCGA § 44-14-161, “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.”

On appellate review, the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the [superior] court that the property brought its true market value at the foreclosure sale.

At the confirmation hearing, the Lender’s valuation expert testified that the value of the property was $3.4 million, which took into account the fact that the interest at auction was not fee simple and the remaining lease term was 25 years. The superior court found the expert credible and the valuation methodology sound, which supported the court’s conclusion that the auction price of $4.6 million was fair. Nevertheless, the Appellants argue that the expert’s valuation failed to take into account a separate tract of property consisting of an easement providing access to the hotel. Therefore, they contend that the valuation did not describe the entire interest sold and was an insufficient basis to determine the true market value. Despite this characterization of the expert’s testimony, it is clear from a review of the record that the expert indeed valued the entire interest, including the parking lot and tract providing access to the hotel property. The expert’s report contained photographs and a legal description of the property, which included the disputed tract here. Accordingly, as there was competent evidence supporting the superior court’s finding, this enumeration is without merit.

2. (a) The Appellants also challenge the superior court’s ruling on the Lender’s hearsay objection to testimony by Birju Patel, who was not present at the auction, as to why he stopped bidding through his representative. Appellants’ counsel’s examination focused on the Lender’s verification of funds, and the following colloquy ensued:

[Appellants’ Counsel]: . . . What happened next [as you bid during the auction]?
[Witness]: Then the bank would subsequently outbid by [$] 100,000. We would go up another [$]50,000 on top of that, and it continued. I think there was three times. Three times there was places where . . . my attorney was asked to show the funds.
[Lender’s Counsel]: Objection, Judge. This has to be hearsay.
[Court]: You weren’t there, were you?
[Witness]: My attorney let me know, and there was —
[Court]: Mr. Patel —
[Appellants’ Counsel]: Listen to the Judge.
[Court]: That’s sustained.
[Appellants’ Counsel]: The tape shows what it shows so you don’t need to say anything that your attorney told you.
[Witness]: Okay.
[Appellants’ Counsel]: At some point did you decide to stop bidding?
[Witness]: Yeah, when it reached [$]4.5 million.
[Appellants’ Counsel]: You just said you were willing to pay up to [$]8.5 [million]. Why would you stop bidding at [$]4.5 [million]?
[Witness]: Because they knew — they had all my cards in play. They knew how much I was — how much cash I had at the sale so —
[Lender’s Counsel]: Objection, foundation, hearsay.
[Appellants’ Counsel]: Your honor, this is not being used for the truth of the matter asserted. It is not hearsay for the following reason: we are not trying to establish through [the witness] whether the attorney was truthfully telling him that the lawyer kept checking the funds. What we’re establishing is his understanding that the lawyer kept checking funds. So his mindset is the linchpin to this case.
[Court]: Sustained.

The Appellants argue that this ruling was erroneous.

Under OCGA § 24-3-1, “[h]earsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” Here, the challenged testimony was, essentially, that Birju decided to stop bidding “because [the Lender] knew . . . how much cash I had at the sale.” As the superior court noted, Birju was not present at the auction, and, as explained by Birju, his attorney told him that the Lender had checked the funds. Therefore, Birju’s statement that the Lender “knew . . . how much cash I had at the sale” was essentially a recitation of what his attorney told him. But, as argued by the Appellants at trial and on appeal, the value of this testimony did not depend on the veracity of the attorney telling the witness that the Lender had checked the available funds; rather, the value of the testimony derived from the witness’s account of his own motive for ending his bidding. Offered for this purpose, the testimony was not hearsay.

Nevertheless, an erroneous hearsay ruling is not cause for reversal absent a showing of harm. Here, the trial evidence included uncontradicted competent evidence that (i) the Lender did in fact confirm on separate occasions the adequacy of the bidder’s funding, (ii) the bidder was prepared to bid substantially higher than the final bid, and (iii) the bidder chose to stop bidding after the Lender had checked the funds three times. Likewise, the Appellants were not prevented from forcefully arguing that the Lender’s practice of checking available funds chilled the bidding and adversely affected the regularity of the sale. On the other hand, the Lender’s representatives testified that the entire amount of funds was never confirmed and nothing other than the pending bid amount was communicated to the person making the Lender’s bidding decisions, which is borne out by the undisputed fact that the Lender had to successively confirm the amounts of funds as the bidding rose. Finally, the bidder testified that he was willing to bid even higher than the amount of funds on hand (and he had ready access to those additional funds), so even discounting the Lender’s testimony that it did not have knowledge of the bidder’s strategy or total funds, any knowledge allegedly gained by the Lender would not have revealed the bidder’s final bid ceiling. Under these circumstances, the ruling did not deprive Appellants of an evidentiary basis to support their challenge to the regularity, and the superior court had a sufficient record to consider the Appellants’ argument and nevertheless find that the sale was regular, which it did. Therefore, the superior court’s ruling on the hearsay objection does not warrant a reversal based on the particular facts of this case.

(b) The Appellants also argue that the superior court erred by ruling that the Lender’s conduct did not create “ ‘a chilling of the bidding’ . . . that adversely affected the foreclosure sale or the fair market value of the property.” But for the same reasons that the erroneous hearsay ruling was not harmful as stated above, the record supported the superior court’s ruling on this issue.

3. The Appellants next contend that the superior court erred by finding that the Lender’s advertisement of the sale properly included a description of the property in accordance with OCGA § 9-13-140 (a). That Code section, “governing judicial sales, requires that the advertisement include a full and complete description of the property to be sold .... In the case of real property, such advertisement shall include the legal description of such real property . . . .”

Here, the notice included a legal description of the property matching that which appeared in the security deed. At trial, however, the Appellants presented testimony by a land surveyor who examined the description and discovered an apparent error in the metes and bounds, so that the property line as described would not be contiguous. This oversight, as argued by the Appellants, created an irregularity that rendered the description improper as a matter of law.

Nevertheless, it is undisputed that the legal description in the advertisement was identical to the description in the security deed by which the Lender took its interest from the Appellants. Thus, there was no discrepancy between the two, and the advertisement properly reflected the interest taken under the deed and available at the foreclosure sale. “The minimum legal requirements of a foreclosure advertisement are prescribed in OCGA § 9-13-140 (a), and only a failure to properly include those items will render the advertisement defective as a matter of law.”

If a foreclosure advertisement is not defective as a matter of law, defects in it will prevent confirmation only if the factfinder determines those defects chilled bidding and caused an inadequate selling price. A primary object of the advertisement is to attract buyers who will compete against one another so as to yield the highest price; its contents are important to the process. Thus, errors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained.

There is no evidence that the issue in the legal description was discovered prior to the sale or that the questionable description affected the bidding during the auction. Therefore, because the advertisement in this case accurately reflected the interest described in the security deed, and because there was no showing that the alleged defect affected the bidding, we discern no error in the superior court’s ruling on this issue.

4. Finally, the Appellants argue that the superior court erred by refusing to allow their expert witness to testify as to the regularity of the sale. During the hearing, the Appellants called George Maynard, an experienced real estate attorney who had conducted several hundred foreclosures, to testify about the auction process. On direct examination, Maynard described the auction process and gave his opinion about the standard practice for confirming adequate funds during a foreclosure auction. Toward the end of the examination, Appellants’ trial counsel asked “Have you reached any conclusions after watching the video as to the regularity of the sale that was called and depicted in [the] video [you saw]?” At that point, the Lender interposed an objection, stating that the question went to the ultimate issue, which was for the superior court to determine. The trial court sustained the objection, which ruling the Appellants now assign as error.

“The admissibility or exclusion of expert testimony rests in the broad discretion of the [trial] court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” This Court has stated that opinion “testimony of an expert even as to the ultimate issue is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves, i.e., the conclusion is beyond the ken of the [layperson].” Nevertheless, “it is well established that an expert witness may not state a legal conclusion as to the ultimate issue.”

In this confirmation hearing, the superior court was charged with determining whether the sale was regular in accordance with the law. In this respect, the superior court was not akin to a layperson who would not ordinarily be able to determine whether a foreclosure sale was regular. The trial court did admit the witness’s testimony describing the usual practices, based on his experience, during a foreclosure auction, and the trial court explicitly acknowledged the witness’s testimony about the “usual standard . . . for the verification of funds.” The only testimony excluded by the trial court was the witness’s opinion as to whether the sale was regular. Under these circumstances, we discern no abuse of discretion in the trial court’s ruling.

Decided March 19, 2012.

Knight Johnson, James M. Johnson, Ariel D. Zion, for appellants.

Parker, Hudson, Rainer & Dobbs, Joshua J. Lewis, Eric J. Taylor, Paul H. Anderson, Jr., for appellee.

Judgment affirmed.

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

       (Punctuation and footnotes omitted.) Metro Land Holdings Investments v. Bank of America, 311 Ga. App. 498, 498-499 (716 SE2d 566) (2011).

       State Bank of Texas was, for the relevant period, the ultimate successor to the original lender, Integrity Bank.

       The videotape was not made a part of the appellate record. The record does, however, contain sufficient competent testimony to describe the events of the auction.

        Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454 (1) (415 SE2d 4) (1992).

       See id.

       See OCGA § 24-3-2; DI Uniform Svcs. v. United Water Unlimited Atlanta, 254 Ga. App. 317, 324 (4) (562 SE2d 260) (2002) (“When the conduct and motives of the actor are relevant to the issues on trial, then conversations and similar evidence known to the actor are admissible to explain his conduct.”).

        See Albarran v. State, 249 Ga. App. 331, 334 (4) (548 SE2d 440) (2001) (“It is axiomatic that harm as well as error must be shown to authorize a reversal by this court.”) (punctuation omitted).

       “A nonjudicial foreclosure sale must be advertised in the same manner as a judicial foreclosure sale. OCGA § 44-14-162 (a). That manner is set forth in OCGA §§ 9-13-140 (a) and 9-13-141, which provide, among other things, that notice of the sale shall be published once a week for four weeks in the legal organ for the county.” Nexgen Cumming, LLC v. State Bank & Trust Co., 313 Ga. App. 715, 716 (722 SE2d 428) (2012).

        Dan Woodley Communities, Inc. v. SunTrust Bank, 310 Ga. App. 656 (714 SE2d 145) (2011) (quoting OCGA § 9-13-140 (a)).

        Southeast Timberlands v. Security Nat. Bank, 220 Ga. App. 359, 360 (1) (469 SE2d 454) (1996).

       (Punctuation omitted.) Dan Woodley Communities, Inc., 310 Ga. App. at 657.

       See Belans v. Bank of America, 306 Ga. App. 252, 256-257 (3) (701 SE2d 889) (2010) (advertisement description was sufficient because the property description in the advertisement was the same as that in the loan deed); Norwood Realty Co. v. First Fed. Sav. & Loan Assn. of Atlanta, 99 Ga. App. 692, 695 (3) (109 SE2d 844) (1959) (same).

       (Punctuation omitted.) Caswell v. Caswell, 285 Ga. 277, 280 (3) (675 SE2d 19) (2009).

       (Punctuation omitted.) PN Express v. Zegel, 304 Ga. App. 672, 679 (4) (697 SE2d 226) (2010).

        McGraw v. Smith, 232 Ga. App. 513, 515 (2) (502 SE2d 347) (1998). See also Rayburn v. Ga. Power Co., 284 Ga. App. 131, 139 (3) (643 SE2d 385) (2007) (expert’s opinion that defendant company “retained control” over contractor’s employees was an inadmissible legal conclusion); DeVooght v. Hobbs, 265 Ga. App. 329, 334 (3) (593 SE2d 868) (2004) (expert opinion that actions of one party were imputable to another was an inadmissible legal conclusion); Allen v. Columbus Bank & Trust Co., 244 Ga. App. 271, 277-278 (2) (534 SE2d 917) (2000) (opinion that letter “may be fraudulent” was an inadmissible legal conclusion).

       See OCGA § 44-14-161 (c) (“at the hearing the court shall . . . pass upon the legality of the notice, advertisement, and regularity of the sale”).

       See, e.g., Giannotti v. Beleza Hair Salon, 296 Ga. App. 636, 642 (2) (676 SE2d 544) (2009) (expert testimony about the standard of care was admitted, but further testimony excluded as not beyond the ken of the average juror).


author: Adams, Judge.

text:
    A11A1964.
    PATTERSON v. BENNETT STREET PROPERTIES, L.P
    (726 SE2d 147)
   Adams, Judge.

Chip Patterson signed a guaranty for a restaurant lease, and when the tenant failed to pay, Bennett Street Properties, L.P, the landlord, unsuccessfully sought to collect on the guaranty. Bennett Street then brought suit to enforce the guaranty, and after discovery, the trial court granted summary judgment in its favor and denied Patterson’s cross-motion for summary judgment. Patterson appeals.

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). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construing the facts in favor of Patterson for purposes of analyzing the summary judgment granted against him, the record shows the following: Two or three restaurants have been operated on certain premises located on the first floor at 2110 Peachtree Road (near Bennett Street) in Atlanta, Georgia (the “Bennett Street Premises”) pursuant to multiple assignments and other amendments of one original 20-year lease dated January 20, 1989 between a predecessor-in-interest of Bennett Street and The Peasant Restaurants, Inc. The 1989 lease allows both amendments and assignments upon consent of the landlord. As of 2007, appellee Bennett Street was the landlord of the premises.

Appellant Patterson founded and is the chief executive officer of a company that manages parking services; the company has about 1,500 employees across the country. On behalf of that business, Patterson has signed at least 100 parking service agreements. Nevertheless, he testified that he does not usually read documents before signing them.

In the 1990s, Patterson met and became friends with Anthony LaRocco, a restaurauteur, while providing parking services to a restaurant run by LaRocco near the Bennett Street Premises. That restaurant ceased operating in about 2006, and, approximately one month before Christmas 2007, LaRocco asked Patterson to lend him $250,000 in connection with opening a new restaurant named Vita at the Bennett Street Premises; Patterson knew that LaRocco was “broke” at the time. The two discussed the plans for the restaurant, including the restaurant concept, the menu, and what the revenue and expense projections were. Part of Patterson’s “research, [or] due diligence,” was his knowing LaRocco. In addition, LaRocco gave Patterson a one-page proforma about the business, as well as the proposed menu. Patterson testified that he obtained legal advice relative to the documents. During this process, Patterson also received a copy of a lease for the proposed restaurant: He averred, “At some point, I did get the lease, yes.” Patterson was asked specifically, “But did you ever have a copy of the Vita — of the lease that Vita was going to enter into?” Patterson responded, “At some point, yes.” He testified that he looked at the lease “[to] analyze, I guess, [LaRocco’s] expenses, what his rent expense would be.” (Emphasis supplied.) He also testified that the 1989 lease “might have been” what he saw during his due diligence regarding the transaction. Patterson knew that Vita would be the restaurant that would be operating in the premises identified in the lease and that the tenant would either be LaRocco or Vita. A closing would eventually take place on December 27, 2007, for the assignment of the lease to LaRocco, and Patterson’s loan to LaRocco would eventually close on January 4, 2008.

Meanwhile, prior to the closings, LaRocco called Patterson on or the day before December 24, 2007 and told him that Bennett Street would not let him open the restaurant without Patterson signing a guaranty. LaRocco gave Patterson the guaranty document on December 24, and Patterson signed it that day at his home; LaRocco did not present Patterson with any other documents that day; and Patterson did not have any lease in his possession that day. Before signing the guaranty, Patterson averred that he “probably read over it lightly,” but he could not recall reading it, and he did not consult an attorney or seek advice from any other professional. He did not discuss the guaranty with anyone from Bennett Street. Obviously, prior to signing the guaranty, Patterson did not see the finalized lease assignment or other documents that were signed and dated at the closing of the lease assignment on December 27, 2007.

Patterson did not attend the December 27, 2007 closing, but the signed guaranty was presented to Bennett Street with all five pages and Patterson’s original signature. Partly in reliance on that guaranty, Bennett Street consummated the agreement to assign the lease to LaRocco. At the same closing, the lease was reassigned to Vita, LLC, a company formed by LaRocco and certain investors, and the lease was amended to fit the particulars of the arrangement between the landlord and the new tenant.

Patterson’s loan to Vita, which actually came from a family trust, closed on January 4, 2008. LaRocco personally guaranteed the loan in favor of Patterson’s family trust.

Vita defaulted on its obligations under the lease. Months after the transaction, Patterson and LaRocco met with Jack Brown, a representative of Bennett Street, in an attempt to “let him know the business couldn’t support the rent that was in the lease”; in other words, to attempt to renegotiate the lease. Those talks failed, Patterson eventually failed or refused to respond to a demand to make good on the guaranty, and this suit followed.

On cross-motions for summary judgment, the trial court found as undisputed fact, among other things, that as of 2007, Bennett Street was the landlord and Atlanta’s Best Dining Bennett, Inc. (ABDB) was the tenant of the relevant premises pursuant to the 1989 lease; that LaRocco asked his friend Patterson, an experienced businessman, who had already loaned $250,000 in connection with opening Vita, to sign the guaranty that had been prepared by Bennett Street; that Patterson signed it on December 24, 2007 without reading it or discussing it with anyone; that on December 27, the signed guaranty was brought to the closing and the transaction closed, which included an assignment of the lease to LaRocco and an amendment to that lease; that the lease was then assigned to Vita which later defaulted; and that Bennett Street made demand on Patterson under the guaranty, but Patterson refused to pay. Our review of the briefs and record shows that the facts found by the trial court as recited in this paragraph are not in dispute. The trial court concluded that Patterson’s legal arguments were not persuasive, and, accordingly, it found as a matter of law that the guaranty is valid and binding on Patterson. It therefore granted summary judgment in favor of Bennett Street and denied Patterson’s cross-motion. The court also made a ruling on damages that will be further discussed below.

1. Patterson contends the guaranty does not comply with the Statute of Frauds, which requires a promise to answer for the debt of another to be in writing and signed by the party to be bound. See OCGA § 13-5-30 (2). More specifically, he contends the guaranty does not satisfy the requirement that the writing must “identify the debt, the principal debtor, the promisor, and the promisee. [Cits.]” John Deere Co. v. Haralson, 278 Ga. 192, 193 (599 SE2d 164) (2004).

Here, the guaranty specifically identifies the debt as the obligations of the tenant under the January 20, 1989 lease for a portion of the building located at 2110 Peachtree Road, commencing on December 24, 2007 and terminating on December 31, 2010. The guaranty makes clear that the obligations of the tenant may be changed or altered without notice to the guarantor and assigned without effect on the guaranty. The guaranty specifies that ABDB has assigned to LaRocco its interest in the lease, which, when read with the remainder of the guaranty, can only be read to mean the interest of the tenant. Thus, based solely on the plain reading of the agreement, the guaranty identifies the debt as the obligations of the tenant under the specified 1989 lease, as assigned to LaRocco, for a three-year period running from December 24, 2007 to December 31, 2010.

The assignment contemplated in the guaranty occurred on December 27, 2007, and it is documented by a written agreement of that date entitled “Assignment of Leasehold Estate Assumption Agreement and Bill of Sale” (the “2007 Assignment”). The 2007 Assignment explains that the landlord and LaRocco were agreeing to a “Fourth Amendment” to the lease and that “in the event of any conflict between the original lease and prior amendments, with the Fourth Amendment, that the Fourth Amendment shall control.” The 2007 Assignment itemizes the amendments and modifications to the original lease.

Under the rules of construction applicable when addressing the Statute of Frauds, “a personal guaranty can be read in conjunction with another writing without violating the statute of frauds if (1) the guaranty refers to the other writing or (2) the two can be deemed contemporaneous writings under OCGA § 24-6-3 (a). [Cits.]” LaFarge Bldg. Materials v. Pratt, 307 Ga. App. 767, 770 (706 SE2d 131) (2011). Under the second prong, “as long as all the necessary terms are contained in signed contemporaneous writings, the statutory requirements and purpose of the Statute of Frauds have been met, whether or not the writings are cross-referenced.” Baker v. Jellibeans, Inc., 252 Ga. 458, 460 (1) (314 SE2d 874) (1984).

Here, both the 2007 Assignment to LaRocco and the Fourth Amendment to the 1989 lease were signed on December 27, 2007, three days after Patterson signed the guaranty. The terms of the guaranty itself (without relying on parol evidence) show that an assignment of the 1989 lease from ABDB to LaRocco was contemplated as a part of the same transaction as the guaranty; indeed, the guaranty states that it was a “condition precedent to the Landlord’s consent to the assignment. . . .” See LaFarge, 307 Ga. App. at 771 (2) (in order to construe contemporaneous writings together, they must be made in the course of the same transaction). And Patterson agreed to guarantee the tenant’s obligations even if the lease were further amended or assigned. See generally Brzowski v. Quantum Nat. Bank, 311 Ga. App. 769, 771 (1), n. 7 (717 SE2d 290) (2011) (a person may guarantee present and future debts of the debtor); Pendley v. Stewart, 116 Ga. App. 327, 329-330 (3) (157 SE2d 511) (1967) (“one can execute a contract of guaranty making himself liable for future debts to be incurred by another”). Further, writings may be considered contemporaneous even when they are not executed on the same day as long as they are part of the same transaction. See Dabbs v. Key Equip. Finance, 303 Ga. App. 570, 574 (694 SE2d 161) (2010) (The word “contemporaneous” “does not connote perfect or absolute coincidence in point of time.”). Finally, even though the guaranty refers to the assignment as having already occurred, there is no question that the 2007 Assignment is the assignment to which the guaranty refers. See Senske v. Harris Trust & Sav. Bank, 233 Ga. App. 407, 410 (1) (504 SE2d 272) (1998) (where guaranty plainly shows to which document it refers, a minor error in a reference to the second document is not fatal). Accordingly, the guaranty and the 2007 Assignment, along with the Fourth Amendment, can be read together to determine whether the guaranty complies with the Statute of Frauds.

When read together, these documents identify the principal debt as required by the Statute of Frauds. In addition, the guaranty sufficiently identifies the principal debtor as LaRocco, and it provides that Patterson consented to any subsequent assignment. Finally, the guaranty identifies Patterson as the promisor and Bennett Street as the promisee. We therefore conclude that the trial court did not err by holding that the Statute of Frauds does not bar Bennett Street’s claim on the guaranty. “The statute of frauds is ‘for the prevention of frauds and perjuries.’ [Cit.]” John Deere, 278 Ga. at 194, n. 2. Under the facts of this case, the harm sought to be avoided by the Statute of Frauds does not exist.

The case of Avec Corp. v. Schmidt, 207 Ga. App. 374 (427 SE2d 850) (1993), is not controlling. In that case, the guaranty only referred to a lease dated February 10, but there was no lease with that date, and the guaranty and a lease of a different date were internally inconsistent. Unlike in Avec, in this case the guaranty shows on its face that the 2007 Assignment was a part of the same transaction. Dabbs v. Key Equip. Finance is also distinguishable on the facts. In that case, the guaranty referred only to an “agreement,” yet there were three leases with the same date as the guaranty. Therefore, without parol evidence, it could not be shown which lease was a part of the same transaction as the guaranty. Dabbs, 303 Ga. App. at 575. See also LaFarge, 307 Ga. App. at 771-772 (2) (contemporaneous writing rule could not be employed because one document was unsigned).

2. Patterson contends the trial court erred by granting summary judgment against him on the guaranty because there is an issue of fact as to whether he signed the complete five-page guaranty that Bennett Street seeks to enforce or a version that was missing one page. But undisputed evidence shows that Bennett Street’s attorney Duncan drafted the guaranty with five pages and faxed all five pages to LaRocco’s attorney; that LaRocco gave the document to Patterson who signed it; that neither Patterson nor LaRocco claims that the document had four pages when Patterson signed it; and that the signed guaranty was presented to Bennett Street at the December 27, 2007 closing with all five pages and Patterson’s original signature. The fact that Bennett Street’s file contains the signed but unstapled original with page 4 out of order and that the copy of the guaranty attached to the complaint omitted page 4 does not raise an issue of fact as to whether page 4 was present when Patterson signed it in December 2007. “[W]hile there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where, as in this case, the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Punctuation and footnote omitted.) Heretyk v. P. M. A. Cemeteries, 272 Ga. App. 79 (1) (611 SE2d 744) (2005).

3. Patterson also contends the guaranty cannot be enforced because it was altered after he signed it, thereby voiding the agreement. The undisputed evidence shows that at the closing on December 27, 2007, Duncan added handwritten language to Paragraph 1, and LaRocco’s attorney initialed the change “0¾” meaning Patterson, who was not present. Paragraph 1 contains the main guaranty, which provides that Patterson guarantees the obligations of the tenant under the lease. Paragraph 12 of the guaranty only states the term of the agreement: “This Guaranty and the obligations of the Guarantor shall apply to all obligations of Assignee as the tenant under the Lease commencing on the date hereof and terminating on December 31, 2010.” At the end of Paragraph 1, LaRocco’s attorney simply added the following: “subject to the limitation in Paragraph 12.”

Patterson’s claim fails because he has not shown that the change materially altered the agreement.

If a written contract is altered intentionally and in a material part thereof by a person claiming a benefit under it with intent to defraud the other party, the alteration voids the whole contract, at the option of the other party. If the alteration is unintentional or by mistake or in an immaterial matter or not with intent to defraud and if the contract as originally executed can be discovered and is still capable of execution, it shall be enforced by the court. If the alteration is made by a stranger and not at the instance or by collusion of a party or privy and if the original words can be restored, the contract shall be enforced.

OCGA § 13-4-1. Here, the guaranty was already limited by the term specified in Paragraph 12. Accordingly, the meaning of the guaranty was not changed by the handwritten entry, and therefore the agreement is not void. See, e.g., Price v. Mitchell, 154 Ga. App. 523, 526 (2) (268 SE2d 743) (1980) (alteration that neither adds nor takes away from the agreement “is merely ‘surplusage’ and not ‘material’ ” and cannot therefore create an issue for the jury).

4. Finally, Patterson contends the trial court erred with regard to damages. Patterson’s two arguments are that the trial court erred by admitting an alleged business record as an exception to the hearsay rule and that the document is incomplete on its face and therefore inadequate to establish the relevant debt. A trial court’s decision to admit evidence as an exception to the hearsay rule will not be disturbed absent an abuse of discretion. Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (2) (501 SE2d 30) (1998).

With its motion for summary judgment, Bennett Street submitted two affidavits of its managing partner Jack Brown. In those affidavits, Brown averred that he was personally familiar with the books and records of Bennett Street and its method of keeping records; that it was and is the regular course of business for Bennett Street “to make a memorandum or record of [the relevant] acts, events, transactions and occurrences at the time of their occurrence, or within a reasonable time thereafter”; and that he knew that the attached, one-page “Customer Balance Detail” was made in the regular course of Bennett Street’s business. He did not aver that the document was computer generated or state when it was made. The undated document has Bennett Street’s name at the top; it indicates that it pertains to Vita, LLC; it purports to list “all transactions”; it shows invoices and payments from July 31, 2009 through April 6, 2010, and it reflects a total balance of $197,221.76.

The type of writing admissible as a hearsay exception under the business records exception is “[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event. ...” OCGA § 24-3-14. The record submitted by Bennett Street is not such a record; it is a summary of such records. It was not made at the time of those transactions; it was clearly printed sometime after April 6, 2010, yet it purportedly represents the amount owed on a lease whose term commenced on January 1, 2008.

In order for summaries to be admitted, the underlying records must be available to the court and the parties:

[A] 1 though a summary prepared in support of a demand for payment may not qualify as a business record under OCGA § 24-3-14, [cit.], summarized statements of what records show are admissible if the records themselves are accessible to the court and the parties. [Cit.]

Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 444 (1) (c) (430 SE2d 813) (1993). See, e.g., Walter R. Thomas Assocs. v. Media Dynamite, 284 Ga. App. 413, 417 (1) (b) (643 SE2d 883) (2007) (summary of invoices admissible given that invoices themselves were admitted). Compare E. H. Crump Co. of Ga. v. Millar, 200 Ga. App. 598, 600 (3) (409 SE2d 235) (1991) (summary of commissions under an employment agreement created for use in litigation was not made in the regular course of business and was not admissible as evidence on summary judgment); Wickes Lumber v. Energy Efficient Homes, 157 Ga. App. 303 (277 SE2d 298) (1981) (monthly account statement was itself an admissible business record). Our search of the record reveals no underlying business records were available to the court or Patterson.

We accordingly find that the trial court abused its discretion by considering the one-page summary of the amount owed under the lease in determining the damages to be awarded. In sum, we affirm the judgment as to liability but reverse the award of damages and remand for further proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

Barnes, P. J., concurs. Blackwell, J., concurs in Divisions 1, 2 and 3, and in the judgment.

Decided March 19, 2012.

Kitchens, Kelley & Gaynes, Mitchell S. Rosen, for appellant.

Johnson & Ward, Stanley E. Kreimer, Jr., for appellee.

       In their appellate briefs, neither party used proper citations to the record as required by Court of Appeals Rule 25 (a) (1) (“Record and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.”). See also Court of Appeals Rule 25 (c) (2) (iii).

       Although Patterson also averred that he looked at “a lease or a lease proposal or some template of a lease” and that he did not know what it was, his testimony that he analyzed a lease for the proposed restaurant in order to understand what the rent expense would be was not withdrawn or further explained. Accordingly, to the extent the vague comments about a “template” are somehow inconsistent with his other testimony, it will be construed against him. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986) (“[T]he testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal.”).

       In fact, LaRocco suggested to Bennett Street that Patterson be the guarantor. And William Duncan, an attorney for Bennett Street, drafted the guaranty. About a week before the closing, Duncan faxed all five pages of the document to LaRocco’s attorney with an understanding that LaRocco’s attorney or LaRocco would somehow see to it that Patterson signed it.

       See OCGA § 24-6-3 (a) (“All contemporaneous writings shall be admissible to explain each other.”); Cox v. U. S. Markets, 278 Ga. App. 287, 289 (628 SE2d 701) (2006) (Statute of Frauds satisfied “if the guaranty ‘either in itself or in connection with other writings, identifies) the debt which is the subject of the promise. . . .’ [Cit.]”).

       LaRocco deposed that the guaranty only had four pages when he saw it prior to the closing. But he clarified his answer to say that he saw a document with four pages only after, or perhaps at, the closing when the other documents were signed, which would be December 27, 2007. He testified that he was not otherwise “involved” with the guaranty; and that he first noticed that he had a signed copy with four pages in his file about a month before his deposition.

       In response, Patterson submitted an affidavit by LaRocco, who averred simply that, based on his review of Vita’s records, “[t]he Bennett Total is not correct.” The only supporting detail that he provided was that the total failed to take into account a payment of $49,500 that Vita made to Bennett Street
      as prepaid rent, rent abatement and rent reduction Bennett St. provided to Vita and [his subsequent restaurant on the premises] before April 6, 2010, credit due to Vita for referring a tenant to Bennett St., credit due from Bennett St. for an insurance reimbursement, and credit due for some furniture sold to Bennett St.

        The trial court held that LaRocco’s affidavit failed to raise an issue of material fact as to the principal indebtedness with the exception of the asserted $49,500 credit. It therefore granted summary judgment in the amount of $147,721.76, because that amount was undisputed but denied summary judgment regarding the asserted credit.


text:
    A11A2223.
    WILDER v. THE STATE.
    (726 SE2d 154)
   DOYLE, Presiding Judge.

Richard Keith Wilder was convicted of forgery after entering a guilty plea pursuant to North Carolina v. Alford. The trial court entered a restitution order from which Wilder now appeals. For the reasons that follow, we vacate the order of restitution and remand with direction.

The proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence. And the burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the [S]tate. On review of a restitution order, the appellate court has the duty of reviewing the transcript to determine whether each party has met his or her specified burden and determining whether a restitution award was supported by the preponderance of the evidence.

So viewed, the record reveals that Wilder was indicted on two counts of first degree forgery for allegedly forging the names of two previous owners on a motor vehicle title and one count of alteration of an odometer. Wilder agreed to plead guilty to one of the two forgery charges in exchange for the State moving for entry of an order of nolle prosequi as to the remaining forgery charge and the alteration of an odometer charge.

At the guilty plea hearing, the State contended that Wilder sold a used vehicle to Andrea Berlin with a forged signature of a previous owner and an incorrect odometer for $7,900. The car immediately showed signs of disrepair, and Berlin invested $3,574 in repairs before attempting to resell the vehicle to another used car establishment, which offered her $1,700 for the vehicle.

At the guilty plea hearing, the State asked for a separate hearing on restitution and argued that the amount would be significant. During the plea colloquy, Wilder testified that he understood that there was restitution at issue in the case, and he would be required to pay the amount that the trial court would determine at the later hearing.

At the restitution hearing, the State presented evidence of the purchase amount of the vehicle as well as amounts Berlin spent in repairing the vehicle before giving it to a repairman after concluding that she could not invest more money in the automobile. At the hearing, the State contended that Wilder should be ordered to pay restitution in the amounts Berlin invested in the vehicle, both in its purchase and in its repair, while Wilder contended that those amounts did not flow from the forgery conviction.

The trial court entered its restitution order, finding that on March 5, 2007, Berlin purchased a vehicle from Wilder for $7,900 with mileage represented by Wilder to be 49,000, but in actuality the mileage was 98,000. Berlin was able to use the vehicle for three weeks during which time she invested $3,574 in repairs in the vehicle. Based on these findings, the trial court ordered Wilder pay Berlin $11,474 in restitution.

Wilder argues that the trial court erred by ordering him to pay restitution in the amount of the purchase price and repair expenses of the car because the State failed to meet its burden of proof. Wilder explains that his guilty plea was entered only as to forgery of the title document, which offense did not result in the losses making up the ordered amount of the restitution.

Pursuant to OCGA § 17-14-2 (2), damages recoverable through an order of restitution are “all damages which a victim could recover against an offender in a civil action based on the same act or acts for which the offender is sentenced. . . . The statute does not require that the damage be a direct result of the crime committed, but only that it be based on the same act or acts.” Moreover, “a defendant cannot be ordered to pay restitution for a count on which he was acquitted or not charged.” “Although the trial court was thorough in making written findings as to the calculation of the restitution award, it is nevertheless difficult to ascertain whether the court improperly included amounts based on” the nolle prossed charges in light of the trial court’s emphasis on the odometer readings. Thus, upon remand, the trial court should clarify its order to indicate whether any amounts were improperly included based on the nolle pressed charges and deduct those amounts, if any.

Decided March 19, 2012.

McArthur, McArthur & Overend, John J. McArthur, for appellant.

Daniel J. Porter, District Attorney, Jennifer G. Hendee, Assistant District Attorney, for appellee.

Order of restitution vacated and case remanded with direction.

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

       OCGA § 16-9-1 (a).

       400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

       (Citation and punctuation omitted.) Mayfield v. State, 307 Ga. App. 630 (2) (705 SE2d 717) (2011). See also OCGA § 17-14-7 (b).

       OCGA § 40-8-5 (c).

       (Citation and punctuation omitted; emphasis in original.) Burke v. State, 201 Ga. App. 50 (1) (410 SE2d 164) (1991).

        McMahon v. State, 284 Ga. App. 192, 195 (3) (643 SE2d 236) (2007).

        McMahon v. State, 273 Ga. App. 574, 576 (4) (615 SE2d 625) (2005).

       See id.


text:
    A11A2343.
    FORRESTER v. THE STATE.
    (726 SE2d 476)
   Adams, Judge.

Karen Allison Forrester appeals after a jury convicted her of three counts of forgery in the first degree and one count of theft by deception. Because we find the evidence insufficient to support Forrester’s convictions on the three forgery counts, we reverse as to those charges, but we affirm her conviction on the charge of theft by deception.

In weighing the sufficiency of the evidence, this Court construes the evidence at trial, and all reasonable inferences from it, most strongly in favor of the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. Brown v. State, 293 Ga. App. 633 (667 SE2d 899) (2008). We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Id.

So viewed, the evidence shows that on or about May 28, 2009, Forrester responded to a sign posted by Rene Rosas and his wife, Myrna Valdez, advertising the rental of a house located at 6201 Caprice Drive in Flowery Branch (the “Rental House”). Valdez showed the Rental House to Forrester that day, and they discussed the leasing terms. The next day Forrester returned to meet with Rosas and Valdez. The parties signed a lease contract prepared by Valdez, which reflected a monthly rent of $850, with a $850 deposit, and Forrester gave Rosas and Valdez three money orders in the amount of $920 each to cover the security deposit, the first month’s rent and pre-payment of future rent. A few days later, Forrester called Valdez to say that she had some extra money and wanted to advance an additional amount for rent. She had a $2,000 check and she wanted to pay Valdez $1,000 of that amount. Rosas and Valdez went with Forrester to the bank, which declined to cash it. Later, Forrester asked Rosas and Valdez to return $560 of the money she had advanced through the money orders, and they wrote her a check for that amount. The money orders were subsequently dishonored as “counterfeit,” however, and when Forrester later called to request the return of an additional $500, Rosas and Valdez called the police.

1. Forrester asserts that the evidence was insufficient to support her convictions because the State failed to prove the offenses occurred in Hall County.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. The [S]tate may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence. On appeal, we view the evidence in the light most favorable to the verdict and determine whether the evidence was sufficient to permit a finding that the crime was committed in the county where the defendant was indicted.

(Punctuation omitted.) Bowen v. State, 304 Ga. App. 819, 822-823 (1) (b) (697 SE2d 898) (2010).

In charging Forrester with forgery, the indictment alleged that she possessed the counterfeit money orders and delivered them to Rosas, and the State was required to prove that these actions occurred in Hall County. The police officer who responded to the call by Rosas and Valdez testified, without contradiction, that the Rental House was located in Hall County. Valdez testified that she first met Forrester at the Rental House on or around May 28, 2009, and the next day Forrester “returned” to sign the lease and gave them the money orders. Rosas testified about only two meetings with Forrester: the first when he went to the Rental House to sign the lease and the second when they went to the bank a few days later in an attempt to cash the $2,000 check. Rosas said that Forrester gave them the money orders the day she signed the lease, and on that day, he showed her some rooms in the Rental House. We find this evidence sufficient to establish Hall County as the proper venue for the forgery charges.

The indictment charged that Forrester committed theft by deception when she obtained $560, by “creating Rene Rosas’ impression of an existing fact which was false and which the accused knew to be false, to-wit: that the money orders provided by the accused to Rene Rosas were not counterfeit....” “Theft by deception (OCGA§ 16-8-3) is considered to have been committed in any county in which the accused exercised control over the property which was the subject of the theft. OCGA§ 16-8-11.” Arnold v. State, 210 Ga. App. 843, 847 (1) (b) (437 SE2d 844) (1993). Valdez testified that, at Forrester’s request, she placed the $560 check in the mailbox at the Rental House where she saw Forrester driving by like she was “waiting for me to drop it off.” This occurred the same day that Forrester cashed the check. We find this evidence sufficient to establish venue in Hall County for the theft by deception charge. Id. (venue established where evidence showed that defendant’s agent obtained check for defendant in county where defendant charged).

2. Forrester also argues that the evidence was insufficient to support her forgery convictions because the State failed to prove that she lacked the authority to possess or utter the three money orders. We agree.

OCGA § 16-9-1 (a) provides in pertinent part:

A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes ... any writing in... such manner that the writing as made ... purports to have been made ... by authority of one who did not give such authority and utters or delivers such writing.

And each forgery count of the indictment charged that Forrester “did with intent to defraud knowingly possess a writing, to-wit: counterfeit Money Gram money order ... in such a manner that the writing as made purports to have been made by the authority of one who did not give such authority and did deliver said writing to Rene Rosas in violation of OCGA § 16-9-1. . . .” Thus, the State contended that Forrester lacked authority from Money Gram to possess and deliver the money orders because they were counterfeit. But the only evidence introduced at trial to demonstrate that the money orders were counterfeit were copies of the processed orders themselves, each bearing a stamp reading, “Payment Stopped Counterfeit,” which the State proffered under the business records exception to the hearsay rule, OCGA§ 24-3-14 (b).

Although Forrester asserts that the State failed to lay the proper foundation for admitting the money orders into evidence under this exception, her principal argument is that the stamp on each money order did not qualify as a business record because it reflects a conclusion by a third party that the money orders were counterfeit. Forrester further argues that the admission of these documents as proof that the money orders were counterfeit violated the Confrontation Clause.

To lay a foundation for the admission of the money orders, the State presented the testimony of Jean Rene Tchocksi, a branch manager at Bank of America. Tchocksi explained that after a negotiable instrument such as a check or money order is deposited into a customer’s Bank of America account in Georgia, the instrument is transferred to the bank’s proof department in College Park. The proof department, in turn, transmits the instrument electronically to the originating financial institution for a determination of whether the funds are valid. If the instrument clears, the financial institution verifies a return receipt and sends the deposited funds to Bank of America. But if the instrument is not approved, the proof department is notified and that department returns a copy of the instrument directly to the customer who deposited the money order (not to the branch where the deposit was made). When the instrument is returned to the customer, it typically shows the reason for the return, such as insufficient funds, stop payment, account closure or counterfeitness. The copy also is marked “legal tender,” which means that the copy of the instrument is legally the same as the original because the originals may no longer be available. Tchocksi said that Bank of America relies upon such copies in the usual course of its business.

Pretermitting whether this testimony was sufficient to lay a foundation generally for the admission of the three money orders under the business records exception, it is well settled that “[t]hose portions of business records which contain conclusions, opinions, estimates and impressions of third parties who are not before the court are not admissible under the business records exception to the hearsay rule.” (Citations and punctuation omitted.) Malcolm v. State, 263 Ga. 369, 370 (3) (434 SE2d 479) (1993). Here, Tchocksi’s testimony indicates that the determination that the money orders delivered by Forrester were counterfeit was a conclusion made by a third party institution, whose representatives did not testify at trial. Thus, we agree with Forrester that the “counterfeit” stamps should not have been admissible as a business record to show that the documents were, in fact, counterfeit. See Miller v. State, 266 Ga. 850, 854 (3) (472 SE2d 74) (1996); Kesler v. State, 249 Ga. 462, 474 (11) (291 SE2d 497) (1982). Compare Ross v. State, 298 Ga. App. 525 (680 SE2d 435) (2009) (affirming admission of copies of processed checks as a business record where defendant raised only foundational arguments and did not contend that the “NSF’ stamp on a check represented a conclusion or violated the confrontation clause).

Moreover, as Forrester notes, “the use of hearsay testimony to support a criminal conviction is bounded by the substantive limits of the confrontation clause.” (Citation and punctuation omitted.) Miller v. State, 266 Ga. at 853 (2). “ ‘The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’ Maryland v. Craig, 497 U. S. 836, 845 (110 SC 3157, 111 LE2d 666) (1990).” Id. To allow the admission of the stamp on the money orders as proof that they were indeed counterfeit would deprive Forrester of her right to conduct a thorough and sifting cross-examination on that determination. Allowing the admission of such evidence would also relieve the State of its burden of proving that Forrester lacked the authority to possess and deliver the money orders, instead impermissibly shifting the burden to her to prove the money orders were not counterfeit, a burden she would have to undertake without full knowledge of the evidence against her. For example, the State presented no evidence showing how the determination of counterfeitness was made or identifying the factors that the institution relied upon in making that determination. See id. at 856 (7).

Because the trial court erred in admitting the “counterfeit” stamps on the money orders as business records and the State failed to present any other evidence to establish that the money orders were counterfeit, the State failed to prove Forrester lacked the authority to possess and deliver the money orders as required to support her convictions under OCGA § 16-9-1 (a). Accordingly, we reverse those convictions.

3. Forrester further contends that the trial court erred in allowing a signed statement to go out with the jury during their deliberations over her objection based upon the continuing witness rule.

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations. These documents, which generally contain their makers’ assertions of purported truths, are ascribed evidentiary value only to the extent that their makers are credible.

(Citations and punctuation omitted.) Davis v. State, 285 Ga. 343, 348 (8) (676 SE2d 215) (2009).

The “signed statement” at issue is an “Acknowledgment of Receipt of Demand for Possession,” which Forrester signed before a notary. That document reads, in pertinent part:

Decided March 19, 2012.

Travis A. Williams, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Randall C. Schonder, Assistant District Attorney, for appellee.

I, Karen Forrester, hereby declare that I received a demand for possession dated June 10, 2009, stating that I leave the premises for failure to pay rent past due and making bad faith payments of fraudulent money orders.

Forrester contends that this statement was essentially a “signed confession.” We disagree.

The statement is, as it purports to be, simply an acknowledgment that she received a demand for possession with a description of what that demand states, i.e., that she must leave the premises for failure to pay rent and making bad faith payments with fraudulent money orders. Thus, by signing the document, Forrester acknowledged her receipt of the demand containing the reasons Rosas and Valdez gave for evicting her. These reasons were consistent with testimony from Rosas and Valdez at trial as to why she was evicted. The acknowledgment does not purport to be, and is not, an admission that she actually committed the acts described.

We conclude, therefore, that the acknowledgment is original documentary evidence, not written testimony, because the document did not derive its evidentiary value solely from the credibility of its maker. Accordingly, the trial court did not err in allowing it to go out with the jury. Davis v. State, 285 Ga. at 348 (8).

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. Blackwell, J., concurs in Divisions 1 and 3 and in the judgment.

       Forrester does not contest the sufficiency of the evidence to support her conviction for theft hy deception, other than as to venue, which we addressed in Division 1 above. Accordingly, we expressly do not address the arguments raised in Division 2 as they pertain to the theft by deception charge.

       Subsection (b) of OCGA § 24-3-14 reads, in pertinent part:
      Any writing . . . made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

       As previously explained in Ross v. State, 298 Ga. App. 525, 526, n. 3 (680 SE2d435) (2009),
      [p]ursuant to the federal “Check 21 Act,” any bank at any point in the check clearing process may truncate or remove the original paper check from the check clearing process and instead transmit an electronic image of the check through the process. When necessary, a bank may create a substitute check which, among other requirements, must be a paper reproduction of the original check that contains an image of the front and the back of the original paper check and which is the legal equivalent of the original check so long as it accurately represents all of the information on the front and hack of the original check at the time of truncation. Andrea McGlinn, “Check Clearing for the 21st Century Act: The Impact on Consumers,” 9 N.C. Banking Inst. 179 (April 2005).

       See id. at 527 (affirming trial court’s admission of certified copy of returned check showing insufficient funds under business record exception where branch manager of depository bank testified that the bank received, relied upon and retained the checks in the regular course of its business, but representatives of originating institutions did not testify).

       Moreover, we note that no specific evidence was even presented as to who applied the “counterfeit” stamp to the copy of the money orders and thus no adequate foundation laid as to the stamp’s admissibility as a business record.

       The impermissibility of such a burden is evident in a case such as this, where the originals of the money orders may have been removed during processing, allowing Forrester access only to copies that may not be subject to a thorough, independent examination.


author: BARNES, Presiding Judge.

text:
    A12A0702.
    TROTTER v. AYRES et al.
    (726 SE2d 424)
   BARNES, Presiding Judge.

Kyung Trotter was divorced in 2006 in Virginia and, in 2009, she filed a petition in Georgia seeking to change custody of the child of that marriage from her ex-hushand, Michael Ayres, Jr., to herself. The paternal grandparents, Michael Ayres, Sr. and Teresa Ayres, intervened as party defendants. In August 2011, after conducting a two-day evidentiary hearing, the trial court entered a 26-page final order awarding the grandparents custody of the child, with the mother receiving visitation and parenting time. Proceeding pro se, Trotter appeals from the trial court’s final custody order. For the reasons discussed below, we affirm.

1. At the outset, we point out that Trotter’s pro se brief violates Court of Appeals Rule 25 (a) (1) because many pages of the procedural and factual background section contain no “citation of such parts of the record or transcript essential to a consideration of the errors complained of.” As we have explained, “[o]ur requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996). Nevertheless, in light of Trotter’s pro se status, we will attempt to address the arguments insofar as possible despite the limitations of her brief. See Finch v. Brown, 216 Ga. App. 451, 452 (454 SE2d 807) (1995).

2. In several related enumerations of error, Trotter contends that the trial court applied the wrong legal standard for determining when a third party can be granted custody of a child over the biological parents. We disagree.

When this custody dispute arose in 2009, Trotter’s child was not in her custody but rather was being raised by the paternal grandparents after having been abandoned by the father. The instant case thus is similar to Clark v. Wade, 273 Ga. 587, 588 (I) (544 SE2d 99) (2001) (plurality opinion), where a non-custodial parent filed an action seeking a change in custody, and the grandparents who were raising the child intervened. Consequently, we apply the legal standard enunciated by a plurality of the justices in Clark. See Galtieri v. O’Dell, 295 Ga. App. 797, 798 (673 SE2d 300) (2009). As we have explained, that legal standard is predicated upon OCGA § 19-7-1 (b. 1), which governs custody disputes between a biological parent and a limited number of third parties who are related to the child, including grandparents.

[OCGA§ 19-7-1 (b.1)] establishes a rebuttable presumption that it is in the best interest of the child to award custody to the parent of the child. The following three presumptions are implicit in the statute: (1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent. The presumption can nonetheless be overcome by the third-party relative showing, by clear and convincing evidence, that parental custody would harm the child. Harm in this context has been defined ... as either physical harm or significant, long-term emotional harm, not merely social or economic disadvantages. Once the presumption has been overcome, the third-party relative must prove that an award of custody to him or her will best promote the child’s health, welfare, and happiness.

(Citations and punctuation omitted.) Galtieri, 295 Ga. App. at 798. See OCGA § 19-7-1 (b.1); Clark, 273 Ga. at 598-599 (IV). Thus, in applying the legal standard set forth in OCGA § 19-7-1 (b.1), the trial court need not determine that the parent seeking custody is unfit, only that the third-party relative has established by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child. See Clark, 273 Ga. at 593 (II), 598 (IV). If the third-party relative meets this burden, then the relative must show that an award of custody to him or her would best promote the child’s health, welfare, and happiness. See id. at 598 (IV).

In its final custody order, the trial court found, based upon the testimony of the court-appointed custody evaluator, the child’s guardian ad litem, and other witnesses, that clear and convincing evidence showed that the child’s primary psychological bond was with her paternal grandparents because she had lived with them for substantial periods in her life from 2004 onward; that the child would suffer significant, long-term emotional harm if custody was returned to the mother; and that an award of custody to the grandparents would best promote the child’s health, welfare, and happiness. Accordingly, the court found that the presumption in favor of granting custody to the mother had been rebutted by clear and convincing evidence and that the child’s best interests would be better served by awarding custody to the paternal grandparents. Therefore, the trial court’s final custody order reflects that the court applied the correct legal standard.

3. Trotter enumerates several additional errors, including sufficiency of the evidence, that would require this court to review the transcript of the evidentiary hearing conducted by the trial court on the custody issue. But Trotter stated in her amended notice of appeal that no transcript would be filed for inclusion in the appellate record, and no statutorily authorized substitute for the transcript has been submitted. Because the transcript of the evidentiary hearing is not part of the record, we must presume that the trial court’s ruling was correct and affirm. See Charlot v. Goldwire, 310 Ga. App. 463, 465 (2) (713 SE2d 667) (2011); Roberts v. Windsor Credit Svcs., 301 Ga. App. 393, 396 (2) (687 SE2d 647) (2009).

4. Trotter also argues that the trial court erred in granting the guardian ad litem’s request that a custody evaluation be performed. However, Uniform Superior Court Rule 24.9 (8) (a) authorizes a guardian ad litem to request that the trial court order the parties to undergo a custody evaluation performed by a mental health expert approved by the court. Furthermore, we have held that a trial court has discretionary power to compel the family in a custody dispute to submit to a psychological custody evaluation. See Gottschalk v. Gottschalk, 311 Ga. App. 304, 310 (1) (715 SE2d 715) (2011); Rowe v. Rowe, 195 Ga. App. 493, 496 (5) (393 SE2d 750) (1990). See also OCGA § 19-9-3 (a) (7). Thus, Trotter’s argument is unpersuasive.

5. Trotter further contends that the court-appointed custody evaluator failed to timely provide her with a written report of the evaluation and should not have been permitted to testify at the evidentiary hearing by way of deposition. “The burden is on the appellant to show both harm and error affirmatively by the record.” In the Interest of B. B. S., 253 Ga. App. 119, 120 (3) (558 SE2d 447) (2001). There is nothing in the record before us to show that Trotter was harmed by these alleged errors relating to the custody evaluator. Accordingly, Trotter has failed to carry her burden of showing that appellate relief is warranted in this case.

6. Contrary to Trotter’s assertion, the trial court did not err in permitting the grandparents to intervene in response to her petition seeking a change in custody. See OCGA§§ 9-11-24 (a) (2); 19-7-1 (b.1).

7. Trotter claims that the trial court erred by not ruling on her motion to dismiss the grandparents’ motion to intervene. Yet, the record shows that the trial court expressly denied Trotter’s motion to dismiss in a footnote contained in its final custody order. In the footnote, the trial court explained that it was denying Trotter’s motion on the ground that the grandparents “proffered sufficient evidence for the matter to go forward” and that “the case would not have been properly decided as a matter of law,” as well as “for all of the same reasons contained” in the final custody order. Notwithstanding Trotter’s claim to the contrary, the trial court clearly reviewed and ruled on her motion to dismiss, and Trotter has failed to demonstrate that the court’s ruling on the motion was erroneous.

Decided March 5, 2012

Reconsideration denied March 20, 2012

Kyung Trotter, pro se.

Debbie C. Pelerose, for appellees.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       The trial court also ruled that the father had abandoned the child and awarded him no custody or visitation rights. The father has not appealed the trial court’s order and is not a party to this appeal.

       To the extent that Trotter argues that the legal standard prescribed in OCGA § 19-7-1 (b.1) is unconstitutional, the Supreme Court of Georgia has held otherwise, see Clark, 273 Ga. at 599 (V), and this court is “constitutionally bound by the decisions of our own Supreme Court.” Williamson v. Ward, 192 Ga. App. 857, 858 (1) (386 SE2d 727) (1989). See Ga. Const. of 1983, Art. VI. Sec. VI. Par. VI.


author: BARNES, Presiding Judge. BLACKWELL, Judge,

text:
    A11A1644.
    McCONVILLE v. COTTON STATES MUTUAL INSURANCE COMPANY.
    (726 SE2d 481)
   BARNES, Presiding Judge.

After Bruce McConville was injured when his car was rear-ended, he filed a complaint for personal injury against the driver, and also served Cotton States Mutual Insurance Company, his insurer, pursuant to the uninsured/underinsured motorist statute, OCGA § 33-7-11 (b) (1) (D). The driver, through his insurer, settled with McConville for his policy limits of $25,000. Cotton States filed its answer and defenses, and subsequently moved for summary judgment on the basis that McConville’s policy only provided so-called “reduction” uninsured motorist benefits under the pre-2008 version of OCGA § 33-7-11, and not “excess” uninsured motorist coverage pursuant to the statute as amended in 2008. McConville countered that the amended statute applies to all policies existing on January 1,2009, when the amended statute became effective. Because of that, McConville maintained, he was entitled to receive “excess” coverage; thus, his uninsured motorist coverage from Cotton States would be stacked with the other driver’s coverage for a total sum available to him of $50,000. The trial court granted Cotton States’ motion for summary judgment, finding that McConville’s policy with Cotton States was subject to the “reduction” rule under the pre-2008 statute, and thus, there was no uninsured motorist coverage available to him under his policy. It is from that order that McConville appeals, and for the reasons discussed below, we affirm.

“This Court’s review of the grant or denial of summary judgment is de novo in order to determine whether any genuine issue of material fact exists for resolution by a jury.” (Citation omitted.) QBE Ins. Co. v. Couch Pipeline &c., 303 Ga. App. 196, 197 (692 SE2d 795) (2010). The record reveals that at the time of the accident, McConville was insured with Cotton States under a policy that he had renewed on December 9, 2008. The policy included uninsured motorist coverage of $25,000 per person and expired on June 9, 2009, at which time McConville renewed it. Per the policy, “[a]mounts payable for damages under Uninsured Motorist, Coverage U, will be reduced by: (1) all sums paid by or on behalf of persons or organizations who may be legally responsible for the bodily injury or property damage.” McConville was injured in a car accident on April 27, 2009, during the policy period but after OCGA § 33-7-11 was amended. The statute provides:

[A] motor vehicle shall be considered uninsured to the full extent of the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policies, and such coverages shall apply to the insured’s losses in addition to the amounts payable under any available bodily injury liability and property damage liability insurance coverages. The insured’s uninsured motorist coverage shall not be used to duplicate payments made under any available bodily injury liability insurance and property damage liability insurance coverages but instead shall be available as additional insurance coverage in excess of any available bodily injury liability insurance and property damage liability insurance coverages; provided, however, that the insured’s combined recovery from the insured’s uninsured motorist coverages and the available coverages under the bodily injury liability insurance and property damage liability insurance on such uninsured motor vehicle shall not exceed the sum of all economic and noneconomic losses sustained by the insured. . . .

(Emphasis supplied.) OCGA § 33-7-11 (b) (1) (D) (ii) (I). The statute also provides that the insured can reject in writing the uninsured motorist coverage entirely, OCGA§ 33-7-11 (a) (3), or

select in writing coverage for the occurrence of sustaining losses from the owner or operator of an uninsured motor vehicle that considers such motor vehicle to be uninsured only for the amount of the difference between the available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverages provided under the insured’s motor vehicle insurance policies.

OCGA § 33-7-11 (b) (1) (D) (ii) (II). The statute also requires the insurer to give notice of the available uninsured motorist coverage to its policy holders whose policies are up for renewal after January 1, 2009. It provides:

. . . For private passenger motor vehicle insurance policies in effect on January 1, 2009, insurers shall send to their insureds who have not rejected coverage pursuant to paragraph (3) of subsection (a) of this Code section a notice at least 45 days before the first renewal of such policies advising of the coverage options set forth in this division. Such notice shall not be required for any subsequent renewals for policies in effect on January 1, 2009, or for any renewals for policies issued after January 1, 2009. . . .

OCGA§ 33-7-11 (b) (1) (D) (ii) (III).

The only issue on appeal is whether McConville’s policy in effect at the time of the April 2009 accident was subject to OCGA§ 33-7-11, as amended, resulting in excess coverage of $25,000, or whether it was subject to its terms, resulting in a reduction of his underinsured coverage by the $25,000 paid by the other driver’s liability carrier and thus no additional coverage to him.

Generally, “statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention.” (Citations omitted.) Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988). Substantive law “creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations.” (Citations omitted.) Id. at 55 (3). Here, although not codified by the General Assembly, the bill provided that the amendment to OCGA § 33-7-11 shall apply “to all policies issued, delivered, issued for delivery, or renewed in this state on and after [January 1, 2009].” Ga. L. 2008, p. 1192, § 5. Nothing in the statute, however, explicitly states whether the amendment applies to policies existing on January 1, 2009.

In Devore v. Liberty Mut. Ins. Co., 257 Ga. App. 7 (570 SE2d 87) (2002), we considered whether an amendment to OCGA § 46-7-12 permitting a direct action against the insurer of a motor common carrier under certain conditions could be applied retroactively. Id. at 9. We held that the amendment applied retroactively because it altered evidentiary rules rather than substantive rights. Id. Likewise, in Jackson v. Sluder, 256 Ga. App. 812 (569 SE2d 893) (2002), we also held that OCGA§ 46-7-12 applied retroactively because it did not create a new cause of action against the insurer or expand its contractual obligations, but simply removed a technical bar to filing against an insurer directly. Id. at 816. Conversely, in State Farm &c. Ins. Co. v. Hall, 309 Ga. App. 271, 272 (709 SE2d 867) (2011), we held that a 2008 amendment to OCGA§ 33-7-11 (i), allowing an uninsured motorist insurer to set off payments made to its insured under the medical benefits provision of the policy, altered substantive rights rather than procedural or evidentiary rules, and thus, did not apply retroactively.

Before it was amended, OCGA § 33-7-11 (b) (1) (D) (ii) defined “uninsured motor vehicle” as one on which the liability insurance coverage was less than the uninsured motorist coverage under the insured’s policy, but only to the extent of the difference between the available coverage under the liability insurance policy and the coverage under the uninsured motorist policy. OCGA § 33-7-11 (2007).

The statute as amended now provides that “no automobile liability policy or motor vehicle liability policy shall be issued or delivered” unless the insured is given the option of selecting the type of uninsured motorist coverage desired. This change created a new right for the insured — the ability to elect to have excess uninsured motorist coverage, a reduction in that coverage, or no uninsured motorist coverage at all. Likewise, the insurer’s rights were affected by the statutory amendment, which now requires the insurer to provide excess coverage unless its insured specifically rejects it.

Thus, because the amendment affected the rights of all parties, the amendment was substantive in nature and could not be retroactively applied to authorize excess coverage for McConville’s accident that occurred before he renewed his policy. Accordingly, the trial court did not err in granting summary judgment to Cotton States.

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs specially.

BLACKWELL, Judge,

concurring specially.

I agree that the judgment below ought to be affirmed, but I do not think the analysis is as complicated as the majority opinion suggests. When the General Assembly amended OCGA § 33-7-11 in 2008, it specified that the amendment applies “to all policies issued, delivered, issued for delivery, or renewed in this state on and after [January 1, 2009].” Ga. L. 2008, p. 1192, § 5. That is all we need to know to conclude that the amendment does not apply to the policy at issue here, inasmuch as that policy was issued and delivered prior to January 1, 2009. For that reason, the commentary in the majority opinion about the distinctions between substantive and procedural statutes is unnecessary.

Decided March 20, 2012.

Carl G. Fulp III, for appellant.

Young, Thagard, Hoffman, Smith & Lawrence, James B. Thagard, Brian J. Miller, Hall, Booth, Smith & Slover, Anthony A. Rowell, Charles A. Dorminy, for appellee.