author: BARNES, Presiding Judge. MCFADDEN, Judge,

text:
    A11A1806.
    HOME DEPOT U. S. A., INC. v. WABASH NATIONAL CORPORATION.
    (724 SE2d 53)
   BARNES, Presiding Judge.

This case centers on 33 flatbed trailers manufactured by Wabash National Corporation and leased to Home Depot U. S. A., Inc. After using the trailers for several years, Home Depot brought this action against Wabash in which it alleged multiple tort claims predicated on its assertion that the coupling assemblies of the 33 trailers had been defectively manufactured. Home Depot also asserted multiple claims pertaining to a repair procedure developed by Wabash for correcting cracks and corrosion in the coupling assemblies of the trailers. Following discovery, the trial court entered an order granting summary judgment in favor of Wabash on all of Home Depot’s claims. For the reasons discussed below, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to Home Depot as the nonmovant, the record shows that at all times relevant to this litigation, Wabash designed, manufactured, and marketed standardized and customized truck trailers and related transportation equipment. Over the course of many years, Home Depot relied upon several hundred Wabash-manufactured flatbed trailers to deliver its products to homes and construction sites throughout North America. At Home Depot’s direction, the trailers had been purchased from Wabash by Ryder Truck Rental, Inc. or Lease Plan U. S. A., leased to Home Depot, and then operated by third-party carriers under contract with Home Depot.

To meet Home Depot’s operational requirements, Wabash specially designed the flatbed trailers to allow a heavy forklift to be mounted on the rear of the trailer. Part of the design pertained to the trailer’s kingpin and coupler assembly. The kingpin assembly is the primary mechanism for attaching the load bearing trailer to the motorized truck tractor. If the kingpin assembly fails, the trailer can disconnect from the tractor without having any steerability.

Wabash represented to Home Depot that it would fasten a block or two of solid metal ingot inside the kingpin assembly of the trailers to serve as a counterweight; otherwise, the weight of the mounted forklift on the back of a trailer would make it tilt when it was unhooked from the trailer. The counter-weight would be placed inside the upper coupling beneath the trailer bed. Wabash further represented to Home Depot that the kingpin assembly interiors would be coated with a unique anti-corrosive material and would be designed and manufactured with sufficient holes to drain water and moisture. According to Wabash, these special design features meant that a Wabash flatbed trailer would “never rust in its lifetime” and should have “no problem” remaining operable for “10 to 14 or 15 years,” longer than the duration of Home Depot’s leases with Ryder and Lease Plan.

The trailers leased to Home Depot were manufactured either at Wabash’s Scott County, Tennessee facility (the “S” trailers) or its Lafayette, Indiana facility (the “L” trailers). The “S” trailers and “L” trailers did not have the same design.

On July 13, 2007, one of Home Depot’s third-party carriers reported that the kingpin had rusted out of an “L” trailer that had been leased to Home Depot from Ryder. On July 19, 2007, after being informed of the kingpin incident, Wabash issued a technical bulletin to Home Depot that provided a methodology for an inspection of the kingpin assemblies of all “S” and “L” trailers for cracks and corrosion. On July 24, 2007, Wabash released a second technical bulletin to Home Depot advising how to repair the kingpin assembly on trailers that failed the inspection.

According to Home Depot, 183 trailers failed the inspection for cracks and corrosion outlined in Wabash’s first technical bulletin. On July 27, 2007, and again on July 31, 2007, Home Depot asked Wabash whether the repair specified in the second technical bulletin had been used before and whether there had been any tests conducted to determine its safety and effectiveness. Before Wabash had provided an answer to these questions, Home Depot began having the trailers repaired by Wabash’s service providers in accordance with the second technical bulletin. Home Depot paid for the repairs of the trailers and hired a third-party engineering firm to advise it regarding the inspection and repair protocols developed by Wabash.

On October 1, 2007, Wabash communicated that the “[r]epair as noted in [the second technical bulletin] is designed to meet SAE J133.” SAE J133, a standard promulgated by the Society of Automotive Engineers, established testing procedures and minimum performance standards for kingpins and their supporting structures. However, Wabash had not conducted any actual lab testing of the repair outlined in the second technical bulletin and thus was unable to provide any testing data to Home Depot to verify its safety and effectiveness.

Without receiving any test data from Wabash, the engineering firm hired by Home Depot was unwilling to provide any assurances about the safety and effectiveness of the repair outlined in the second technical bulletin. However, there is no evidence in the record that either the engineering firm or Home Depot itself ever tested Wabash’s repair protocol outlined in the first technical bulletin to determine whether it complied with SAE J133. Nor did Home Depot present, during the course of this litigation, any analysis of the repair’s safety and effectiveness from the engineering firm it hired or from any other expert.

In or around August 2008, Home Depot directed its carriers to stop having the Wabash-manufactured trailers repaired in the manner outlined in the second technical bulletin. Home Depot further ordered its carriers to stop using any of the trailers that had received the repair.

Ryder agreed to take back the 150 Wabash-manufactured trailers that Ryder had purchased and leased to Home Depot which had failed the inspection outlined in the first technical bulletin. Home Depot thus was able to mitigate its damages with respect to these trailers, and it transferred and assigned to Ryder “any and all claims[,] demands and cause or causes of action of any kind whatsoever arising out of or relating to” those specific trailers that Home Depot might have against Wabash. Ryder commenced but ultimately dismissed with prejudice an action against Wabash asserting claims relating to the 150 trailers in federal court.

Thirty-three of the Wabash-manufactured trailers that failed the inspection outlined in the first technical bulletin had been purchased by Lease Plan and leased to Home Depot. All 33 were “S” trailers. Ail were purchased from Wabash by Lease Plan at different times from February 1999 to March 2002. Some of the 33 trailers were repaired using the repair protocol outlined in Wabash’s second technical bulletin, and Home Depot incurred costs in carrying out those repairs. Home Depot also incurred lease repurchase costs and salvage costs associated with the 33 trailers.

In September 2008, Home Depot commenced the instant action against Wabash. Home Depot alleged that the corrosion problem identified in the trailers’ kingpin assemblies as a result of the inspection outlined in the first technical bulletin had been caused by Wabash’s failure to exercise ordinary care in manufacturing the trailers. Specifically, Home Depot contended that instead of fastening one or two blocks of solid metal ingot counter-weighting material inside the kingpin assemblies, Wabash placed loose scrap metal such that drainage holes were blocked. Home Depot further alleged that Wabash had not fully covered the interiors of the kingpin assemblies with the unique anti-corrosive coating that it had represented would be used. Additionally, Home Depot alleged that Wabash failed to exercise ordinary care in designing the repair protocol that was intended to resolve the corrosion problem. Home Depot also asserted claims for fraud, negligent misrepresentation, fraudulent concealment, promissory estoppel, and negligent failure to warn. Lastly, Home Depot sought attorney fees, the expenses of litigation, and punitive damages.

Wabash answered and denied all of the material allegations of the complaint. Following discovery, Wabash moved for summary judgment on all of Home Depot’s claims. Home Depot filed a cross-motion for summary judgment on the issue of liability. After hearing oral argument and receiving multiple submissions from the parties, the trial court entered a 27-page order granting Wabash’s motion for summary judgment. The trial court did not rule on Home Depot’s cross-motion.

In its summary judgment order, the trial court first concluded that Home Depot had put at issue in this case only the 33 Wabash-manufactured “S” trailers leased from Lease Plan. The trial court went on to rule that Home Depot’s claims with respect to the original design and manufacture of those 33 trailers were barred by the terms of the applicable supply contracts between Wabash and Lease Plan. In this regard, the trial court ruled that the terms and conditions of the supply contracts were uncontro-verted and that Home Depot was subject to them because it was a finance lessee under Article 2A of Georgia’s Uniform Commercial Code (“UCC”). See OCGA § 11-2A-209 (1). According to the trial court, the merger clause, express warranty clause, warranty disclaimer clause, and exclusive liability clause of the supply contracts precluded Home Depot’s claims for negligent misrepresentation, fraud, fraudulent concealment, negligent failure to warn, and negligent manufacture to the extent they were all based on the original design and manufacture of the trailers.

The trial court ruled in the alternative that all of Home Depot’s tort claims, except for its claims for fraud and negligent misrepresentation, were barred under the economic loss rule. In this respect, the trial court held that the uncontroverted evidence showed that the damages sought by Home Depot were for the loss of the value or use of the trailers and for the cost of repairs, and thus constituted claims for mere economic loss.

In addition, the trial court ruled that summary judgment was appropriate on the alternative ground that Home Depot had failed to come forward with sufficient evidence establishing the elements of any of its claims because there was no evidence that these specific trailers suffered from a manufacturing defect, that Wabash had made any false representations or promises to Home Depot, or that the repair outlined by Wabash in its second technical bulletin was unsafe or ineffective. Lastly, the trial court ruled that because Home Depot could not succeed on its underlying substantive claims, its claims for attorney fees, the expenses of litigation, and punitive damages likewise failed as a matter of law.

1. Home Depot now appeals from the trial court’s grant of summary judgment in favor of Wabash. As an initial matter, Home Depot asserts that the trial court erred in concluding that the only trailers at issue in this case were the 33 Wabash-manufactured “S” trailers leased from Lease Plan. In its summary judgment briefing in the trial court, Wabash relied upon the settlement agreement between Home Depot and Ryder in arguing that the additional 150 trailers leased from Ryder were not at issue in this litigation. Subsequently, in agreeing with Wabash that the additional 150 trailers were not at issue, the trial court relied in part on the settlement agreement, pointing out that any claims relating to those trailers had been assigned and transferred from Home Depot to Ryder pursuant to that agreement.

On appeal, Home Depot does not contest or present any legal argument challenging the trial court’s implicit conclusion that Wabash could enforce the settlement agreement against Home Depot in this action. Any claim in that respect has been waived or abandoned on appeal. See Court of Appeals Rule 25 (a) (3) and (c) (2). Instead, Home Depot simply maintains that it did not assign any of its current claims to Ryder in the settlement agreement.

However, as previously indicated, Section 5A of the settlement agreement expressly “assigns and transfers” to Ryder “any and all claims[,] demands and cause or causes of action of any kind whatsoever arising out of or relating to” the 150 trailers that Home Depot might have against Wabash. Ignoring this contractual language, Home Depot quotes from a separate paragraph of the settlement agreement stating that “nothing in this [ajgreement shall be considered as a waiver or release preventing or prohibiting claims against Wabash for any actions or claims either party may have against Wabash,” but omits with ellipses the central qualifying language immediately preceding the quoted language, “except for those claims transferred by Home Depot to Ryder pursuant to Section 5A hereof” (Emphasis supplied.) Accordingly, given the language of the settlement agreement clearly assigning and transferring to Ryder all claims pertaining to the 150 trailers, the trial court did not err in concluding that only the other 33 “S” trailers leased from Lease Plan were at issue in this action.

2. We turn now to the trial court’s ruling on Home Depot’s substantive claims pertaining to the 33 trailers. Among other grounds, the trial court granted summary judgment in favor of Wabash on Home Depot’s tort claims (apart from its fraud and misrepresentation claims) on the basis that they were barred under the economic loss rule. The trial court’s ruling was proper.

In cases where the losses resulting from a defective product are purely economic in nature, the economic loss rule bars the plaintiff from seeking recovery under strict liability or negligence theories. See Busbee v. Chrysler Corp., 240 Ga. App. 664, 666 (1) (524 SE2d 539) (1999); Holloman v. D. R. Horton, Inc., 241 Ga. App. 141, 147 (4) (524 SE2d 790) (1999). “Economic loss” means damages for the loss of the value or use of the defective product itself, costs of repair or replacement of the defective product, or the consequent loss of profits, unaccompanied by any claim of personal injury or damage to other property. See Vulcan Materials Co. v. Driltech, 251 Ga. 383, 384 (1) (306 SE2d 253) (1983); Henderson v. Gen. Motors Corp., 152 Ga. App. 63, 64 (2) (262 SE2d 238) (1979). Courts “have relegated those who suffer such [economic] loss to the remedies of contract law.” (Citation and punctuation omitted.) Vulcan Materials Co., 251 Ga. at 387 (3).

In the present case, there is no evidence that anyone suffered physical injury or that any property was damaged other than the trailers themselves as a result of Wabash’s alleged negligence; hence, the economic loss rule barred Home Depot’s tort claims unless some exception to the rule applied. Home Depot does not dispute this point on appeal.

Georgia has recognized two exceptions to the economic loss rule: the misrepresentation exception and the accident exception. Holloman, 241 Ga. App. at 147-148 (4). It is undisputed that the fraud and negligent misrepresentation claims asserted by Home Depot fell within the misrepresentation exception. The issue, therefore, is whether Home Depot’s remaining tort claims fell within the accident exception. The trial court properly concluded that they did not.

“Accident in this context means a sudden and calamitous event which, although it may only cause damage to the defective product itself, poses an unreasonable risk of injury to other persons or property.” (Citation and punctuation omitted.) Busbee, 240 Ga. App. at 667 (2). In Busbee, this court refused to apply the accident exception, where the engine in the plaintiffs truck suddenly seized while the plaintiff was driving to work, stranding him in rush hour traffic but not causing “a calamity, sudden violence, collision with another object, or some catastrophic event.” Id. We further noted that “inconvenience, aggravation, or fright” did not rise to the level of an “accident” within the meaning of the exception. Id.

The record reflects that Home Depot first learned of the alleged excessive corrosion problem when a trailer operator employed by its third-party carriers heard a loud noise, pulled over into a parking lot, and discovered that the kingpin on the trailer had rusted out and fallen to the ground. There was no evidence of “a calamity, sudden violence, collision with another object, or some catastrophic event” resulting from the incident; at most, the trailer operator experienced “inconvenience, aggravation, or fright” from having to pull over into a parking lot and discontinue his route due to the rusted-out kingpin. Such an incident cannot be distinguished in any material sense from the incident in Busbee. Therefore, the trial court committed no error in concluding that the accident exception did not apply and that the economic loss rule barred Home Depot’s tort claims (apart from its claims for fraud and negligent misrepresentation) as a matter of law.

3. The trial court granted summary judgment to Wabash on Home Depot’s claims for fraud and negligent misrepresentation pertaining to the original manufacture of the 33 “S” trailers leased from Lease Plan on the ground that Home Depot presented insufficient evidence to establish the essential elements of those claims. Specifically, the trial court concluded that Home Depot presented insufficient evidence that the 33 trailers were manufactured in a manner different from what Home Depot claims was represented by Wabash; therefore, the court ruled that Home Depot could not establish that Wabash had made any false representations regarding the way in which the 33 trailers were originally manufactured. We agree with the trial court.

“The tort of fraud has five elements: (1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages.” (Citation omitted.) ReMax North Atlanta v. Clark, 244 Ga. App. 890, 893 (537 SE2d 138) (2000).

The essential elements of a claim of negligent misrepresentation are . . . : (1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance.

(Punctuation and footnote omitted.) Futch v. Lowndes County, 297 Ga. App. 308, 312 (4) (676 SE2d 892) (2009).

To support its claims for fraud and negligent misrepresentation, Home Depot presented evidence that Wabash represented that it would fasten one or two blocks of solid metal ingot counter-weighting material inside the kingpin assembly of the trailers. Home Depot also presented evidence that Wabash represented that the kingpin assembly interiors would be fully coated with a unique anti-corrosive material and would be designed and manufactured with sufficient holes to drain water and moisture. In its amended complaint and brief opposing Wabash’s motion for summary judgment, Home Depot alleged that Wabash’s representations were false because loose scrap metal rather than solid metal ingot was used for counter-weighting inside the kingpin assemblies, and because not all of the counter-weighting material in the trailers was covered in an anti-corrosive coating. Home Depot alleged that as a result of these two manufacturing defects, the drainage holes became blocked and the kingpin assemblies retained moisture, causing cracks and excessive corrosion in the kingpins of the trailers.

Notably, Home Depot did not present any eyewitness testimony, expert or otherwise, to establish that the thirty-three trailers at issue suffered from the two alleged manufacturing defects forming the basis for its fraud and negligent misrepresentation claims, i.e., the use of loose scrap metal for counter-weighting and the absence of an anti-corrosive coating. Instead, Home Depot relied on alleged business records from its third-party carriers reflecting that the 33 trailers failed the inspection protocol outlined in Wabash’s first technical bulletin. As previously noted, the first technical bulletin established a protocol for inspecting the kingpins and upper coupler assemblies of the trailers for cracks and corrosion. But the fact that the 33 trailers failed an inspection for cracks and corrosion in the kingpin assemblies after many years of use was insufficient to prove that the trailers had loose scrap metal for counter-weighting and the lack of an anti-corrosive coating at the time of their manufacture. See generally Miller v. Ford Motor Co., 287 Ga. App. 642, 644 (1) (653 SE2d 82) (2007) (noting that the failure of automobile equipment after several years of use “can be the result of myriad causes not related to its manufacture”) (citation and punctuation omitted).

Home Depot also relied upon testimony relating to what it characterized as a sample of “exemplar” trailers in an effort to show through circumstantial evidence that the kingpin assemblies of the 33 trailers had loose scrap metal for counter-weighting and lacked an anti-corrosive coating at the time of manufacture. See generally Firestone Tire & Rubber Co. v. Hall, 152 Ga. App. 560, 565 (5) (263 SE2d 449) (1979) (existence of manufacturing defect may be inferred from circumstantial evidence). Specifically, Home Depot pointed to the deposition testimony of the Lease Plan sales manager who handled the company’s account with Home Depot. The manager testified that sometime after the initial July 2007 kingpin incident involving the “L” trailer leased from Ryder, he saw two Wabash-manufactured trailers at a Home Depot facility that had been taken apart to reveal that loose scrap metal had been used as counter-weighting material rather than solid metal ingot. According to the Lease Plan sales manager, he could see that the loose scrap metal had blocked the drainage holes of the two trailers’ kingpin assemblies and had caused water to pool there, leading to corrosion around the kingpin.

Significantly, however, the Lease Plan sales manager conceded that he did not know whether the two Wabash-manufactured trailers that he saw were among the thirty-three at issue here. Moreover, the sales manager admitted that he did not know whether the two trailers he had seen were “S” trailers or “L” trailers, and thus was unable to say whether the two trailers that he observed were manufactured at the same facility and had the same design as the thirty-three trailers. Therefore, while Home Depot characterized the trailers observed by the Lease Plan sales representative as “exemplars,” there was no testimony establishing them as such.

While “circumstantial evidence relevant to prove a manufacturing defect may include evidence of the existence of the defect in goods produced at the same plant at around the same time,” Rose v. Figgie Intl., 229 Ga. App. 848, 852 (1) (b) (495 SE2d 77) (1997) (physical precedent only) (emphasis supplied), that was not the nature of the sales manager’s testimony. Accordingly, Home Depot could not prove circumstantially the alleged manufacturing defects in the kingpin assemblies of the 33 trailers through the testimony of the Lease Plan sales manager. See Atlanta Coca-Cola Bottling Co. v. Burke, 109 Ga. App. 53, 58-59 (1) (134 SE2d 909) (1964) (testimony regarding other bottle of soda had no probative value and was inadmissible, where there was no evidence reflecting that it had been bottled at the defendant’s plant where the soda at issue had been bottled).

Home Depot also relied upon the deposition testimony of Wabash’s Rule 30 (b) (6) representative in an effort to show circumstantially that the kingpin assemblies of the 33 trailers had loose scrap metal for counter-weighting and lacked an anti-corrosive coating at the time of manufacture. During his deposition, the Wabash representative conceded that at some point in time there had been “S” trailers manufactured using loose scrap metal rather than solid ingot counter-weighting material, and that the metal had blocked drainage holes in the kingpin assemblies and had scratched off the anti-corrosive coating. According to the representative, the loose scrap metal could lead to excessive corrosion in kingpin assemblies by causing water to pool around the drainage holes.

But Wabash’s representative testified that he did not know the time period during which loose scrap metal had been used in “S” trailers other than that it was for only a brief period early in the production process, after which it was corrected. Home Depot presented no evidence that the 33 trailers, which were purchased by Lease Plan at varying times from 1999 until 2002, fell within the group of trailers early in the production process to which Wabash’s representative was referring. Thus, Home Depot could not establish that the defectively manufactured “S” trailers referred to by Wabash’s representative were manufactured “around the same time” as the 33 “S” trailers at issue in the present case; a jury would be left simply to speculate on the issue. The testimony of Wabash’s representative was too slim a reed to establish circumstantially that the kingpin assemblies of the thirty-three trailers were defectively manufactured in the manner alleged by Home Depot. See Rose, 229 Ga. App. at 852 (1) (b). See also J. Kinson Cook of Ga. v. Heery/Mitchell, 284 Ga. App. 552, 559 (d) (644 SE2d 440) (2007) (“An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.”) (citation and punctuation omitted).

Lastly, in opposing summary judgment, Home Depot relied upon evidence that Wabash-manufactured trailers sold to other customers were found to have cracks and corrosion in their kingpin assemblies at some point during the course of their use, leading Wabash to issue technical bulletins to one customer in 2005 that outlined the same inspection and repair protocols authorized by Wabash in the instant case. But there is no evidence that any of these trailers sold to other customers had kingpin assemblies that were defectively manufactured through the use of loose scrap metal for counter-weighting and lack of an anti-corrosive coating. Nor is there any evidence that the trailers were manufactured “around the same time” as the 33 trailers at issue here. Accordingly, the incidents of cracks and corrosion in the kingpin assemblies of Wabash-manufactured trailers sold to other customers were insufficient to show circumstantially that the 33 trailers had loose scrap metal for counter-weighting and lacked an anti-corrosive coating at the time of manufacture.

For these combined reasons, we agree with the trial court that Home Depot failed to point to specific evidence, direct or circumstantial, giving rise to a triable issue over whether the kingpin assemblies of the 33 trailers at issue suffered from the two alleged manufacturing defects forming the basis for its fraud and negligent misrepresentation claims. Specifically, Home Depot presented no competent evidence establishing that, contrary to Wabash’s initial representations concerning how the 33 trailers would be designed and manufactured, Wabash used loose scrap metal for counter-weighting in the kingpin assemblies of those trailers and failed to coat them fully with anti-corrosive material. It follows that Home Depot could not prove that the 33 trailers were manufactured in a manner different from what Home Depot claims was represented; thus, the trial court did not err in granting summary judgment to Wabash on the fraud and negligent misrepresentation claims.

4. The trial court also granted summary judgment to Wabash on Home Depot’s claim for fraudulent concealment because of insufficient evidence. To prove fraudulent concealment in cases involving alleged manufacturing defects in a product, the plaintiff must prove that the product was defective at the time of sale and that the defendant manufacturer had actual knowledge of the defect, yet chose to conceal it. Dasher v. Davis, 274 Ga. App. 788, 789 (618 SE2d 728) (2005). For the reasons discussed supra in Division 3, Home Depot cannot prove that the 33 trailers at issue suffered from the two manufacturing defects forming the basis for its fraud-related claims. Consequently, because there was no evidence that the 33 trailers were defective at the time of sale, the trial court committed no error in granting summary judgment in favor of Wabash on Home Depot’s claim for fraudulent concealment.

5. Concluding that there was insufficient evidence to create a jury issue, the trial court also granted summary judgment in favor of Wabash on Home Depot’s fraud and negligent misrepresentation claims regarding the repair protocol outlined by Wabash in its second technical bulletin. Among other reasons, the trial court concluded that there was no evidence that the alleged misrepresentations regarding the repair proximately caused any harm to Home Depot. Again, we agree with the trial court.

In opposing summary judgment, Home Depot presented evidence of the following sequence of events: (1) on July 27, 2007, Home Depot asked Wabash whether the repair protocol for the kingpin assemblies outlined in the second technical bulletin had been used before and whether it had been tested to determine its safety and effectiveness; (2) on July 31, 2007, Home Depot reiterated to Wabash that it wanted to know whether the repair protocol had been tested; (3) on October 1, 2007, Wabash communicated that the “[rjepair as noted in [the second technical bulletin] is designed to meet SAE J133.” According to Home Depot, Wabash’s October 1, 2007 statement was false because the repair protocol had not been tested at that point to determine if it met the minimum performance standards for kingpins and their supporting structures set out in SAE J133.

Yet, while Home Depot presented evidence that Wabash had not previously tested the repair protocol as of October 2007 to determine whether it complied with SAE J133, Home Depot presented no evidence that the protocol would have in fact failed that specific test. Notably, Home Depot presented no evidence, through expert testimony or otherwise, regarding the safety or effectiveness of the repair protocol, its compliance with the minimum performance standards for kingpins and their supporting structures set out in SAE J133, or any damage to the trailers caused by the repair. Therefore, even if Wabash’s October 1, 2007 communication could be construed as falsely representing that the repair protocol had been tested to determine its compliance with SAE J133, Wabash failed to point to any specific evidence creating a triable issue of fact over whether the representation was the proximate cause of any harm to Home Depot. The trial court thus did not err in granting summary judgment to Wabash on Home Depot’s claims for fraud and negligent misrepresentation pertaining to the repair of the trailers.

6. In addition, the trial court granted summary judgment in favor of Wabash on Home Depot’s promissory estoppel claim relating to the repair protocol. The trial court concluded that Home Depot had failed to identify an enforceable promise that it relied upon to its detriment such that its promissory estoppel claim failed as a matter of law. The trial court did not err in this regard.

Under the equitable doctrine of promissory estoppel, “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44 (a). In its amended complaint, Home Depot alleged that by providing the repair protocol for the trailers outlined in the second technical bulletin, Wabash “promised that the trailers could be repaired in a manner that they would be safe to operate on the road.”

Even assuming that the alleged promise that the repair would make the trailers “safe to operate on the road” was sufficiently specific and definite to support a promissory estoppel claim, we conclude that the claim nevertheless fails as a matter of law. As explained supra in Division 5, Home Depot failed to present any evidence regarding the safety and effectiveness of the repair protocol, and thus could not establish that the repaired trailers were not “safe to operate on the road.” Hence, Home Depot could not show that it relied upon the alleged promise to its detriment, and so the trial court committed no error in granting summary judgment to Wabash on the promissory estoppel claim on this ground.

7. Lastly, the trial court granted summary judgment in favor of Wabash on Home Depot’s claims for attorney fees, the expenses of litigation, and punitive damages. Home Depot could prevail on these claims only if it succeeded on an underlying substantive claim. See DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 52 (5) (668 SE2d 737) (2008). Because, as explained in the prior divisions of this opinion, Wabash was entitled to summary judgment on all of Home Depot’s substantive claims, the trial court did not err in granting summary judgment to Wabash on Home Depot’s claims for attorney fees, the expenses of litigation, and punitive damages.

Judgment affirmed.

Adams, J., concurs. McFadden, J., concurs fully and specially.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to further explain why the evidence put forward by Home Depot is not sufficient to avoid summary judgment.

Home Depot has focused on evidence that the 33 trailers at issue in this case failed inspections. The fact that trailers failed inspections, however, does not show that those trailers suffered from the specific manufacturing defects that Home Depot must prove to prevail on its misrepresentation claims, namely the lack of an anti-corrosive coating and the use of loose scrap metal as a counterweight in the trailers’ coupling assemblies. Home Depot’s 30 (b) (6) representative testified that Home Depot concluded that these alleged manufacturing defects caused the failed inspections based upon information it received from an engineering firm. Home Depot presented no evidence, however, that the engineering firm actually examined any of the 33 trailers at issue. Moreover, a representative of the engineering firm testified that there could be many different causes for a failed inspection and cautioned that the firm’s analysis would not support statistical inferences about the reasons why trailers failed inspections. Instead, he stressed that the trailers should be considered on a “case by case basis.”

Home Depot did not put forward any other competent evidence to show that the alleged manufacturing defects caused the failed inspections in the 33 trailers. Notably, the evidence that for a brief period of time, loose scrap metal was used as counterbalancing material in the coupling assemblies of trailers manufactured at the Scott County facility (where the 33 trailers were built), is hearsay; Wabash’s 30 (b) (6) representative stated that he had been told this information by another person, whose testimony is not part of the record. Without some evidence connecting the failed inspections of the 33 trailers to the alleged manufacturing defects, the jury would be left merely to speculate as to the cause of those failed inspections. As the majority opinion points out, “[sjummary judgment cannot be avoided based on speculation or conjecture.” (Citation omitted.) Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010).

Decided February 27, 2012.

Parker, Hudson, Rainer & Dobbs, John W. Mitchell, William J. Holley, King & Spalding, Tracy C. Braintwain, Dwight J. Davis, for appellant.

Fried & Bonder, Scott L. Bonder, for appellee.

       We note that Home Depot’s Rule 30 (b) (6) representative testified that only the 33 “S” trailers leased from Lease Plan were at issue in this case. But the representative’s testimony is best construed as an admission regarding a mixed question of law and fact, and Georgia law provides that a party is not bound to that type of admission. See Avery Enterprises v. Lyndhurst Builders, 304 Ga. App. 353, 355 (696 SE2d 389) (2010).

       Home Depot contends that the trial court erred in ruling as a matter of law that it was a finance lessee and that its claims with respect to the original design and manufacture of the 33 trailers were barred by the terms and conditions of the supply contracts between Wabash and Lease Plan. We need not resolve whether the trial court erred in this regard, given our conclusion that the trial court’s grant of summary judgment was appropriate on alternative grounds. See Gilbert v. City of Jackson, 287 Ga. App. 326, 327 (1) (651 SE2d 461) (2007) (“A grant of summary judgment must be affirmed if right for any reason[.]”).

       Of course, Home Depot’s claim for promissory estoppel was not a tort claim and thus was not barred by the economic loss rule.

       Home Depot also alleged that Wabash represented that a Wabash-manufactured trailer would “never rust in its lifetime” and should have “no problem” remaining operable for “10 to 14 or 15 years.” But “[i]t is axiomatic that a false representation made by a defendant, to be actionable, must relate to an existing fact or a past event.” Fuller v. Perry, 223 Ga. App. 129, 131 (1) (476 SE2d 793) (1996). Wabash’s representations were on their face mere opinions, expectations, and predictions of the future and thus could not serve as the basis for either a fraud or a negligent misrepresentation claim. See Bithoney v. Fulton-DeKalb Hosp. Auth., 313 Ga. App. 335, 343 (2) (721 SE2d 577) (2011).

       Home Depot’s Rule 30 (b) (6) representative submitted an affidavit in which he stated in summary fashion that the kingpin assemblies of the trailers had loose scrap metal for counter-weighting material rather than solid metal ingot and had not been properly treated with an anti-corrosive coating. But conclusory and self-serving affidavits are insufficient to create a genuine issue of material fact for trial. See J. Kinson Cook of Ga. v. Heery/Mitchell, 284 Ga. App. 552, 559 (d) (644 SE2d 440) (2007).

       The parties dispute whether the documents at issue were admissible as business records. We need not resolve this issue because even if the documents were admissible, they failed to create a genuine issue of material fact over whether the thirty-three trailers suffered from the two manufacturing defects forming the basis for Wabash’s fraud and negligent misrepresentation claims.

       Home Depot further relied on an internal company inspection conducted by Wabash in 2007 that showed cracks and corrosion in kingpin assemblies of trailers that had been used by Home Depot. Again, the fact that the trailers failed an inspection for cracks and corrosion after many years of use did not establish that the trailers suffered from the two original manufacturing defects alleged by Home Depot.

       See, e.g., Standard Cotton Mills v. Cheatham, 125 Ga. 649, 652-653 (3) (54 SE 650) (1906) (evidence of other misaligned machines positioned on same floor at the same plant admitted to show machine at issue was misaligned); Carsten v. Wilkes Supermarket of Gwinnett County, 181 Ga. App. 834, 834-835 (1) (353 SE2d 922) (1987) (evidence of no complaints regarding 125 other turkeys supplied by same wholesaler and purchased from the same supermarket during the same Thanksgiving season was circumstantial evidence that turkey at issue was not infected with salmonella); Comer Co. v. Joyner, 32 Ga. App. 661 (124 SE 356) (1924) (evidence that other bad salt was stored in the same place, under the same conditions, and within a few weeks of the salt at issue was properly admitted to show defect).

       Home Depot points out that after this litigation commenced, Wabash for the first time tested the repair protocol outlined in the second technical bulletin but objected to producing the test results. According to Home Depot, Wabash’s refusal to produce the test results entitles Home Depot to an evidentiary presumption that the results were adverse to Wabash’s defense. See OCGÁ § 24-4-22. However, the record reflects that Wabash objected to production of the test results based upon the work-product doctrine, and there is nothing in the record indicating that Home Depot ever moved for the trial court to compel production of the test results or otherwise sought and obtained a ruling on whether the work-product doctrine applied in this circumstance. It is axiomatic that we will not resolve issues that were not raised and ruled upon by the trial court. Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 287 (2) (690 SE2d 225) (2010). Having failed to file a motion to compel or seek a ruling on the application of the work-product doctrine, Home Depot cannot obtain remedial action in the first instance at the appellate level. See id.

       To the extent that Home Depot’s promissory estoppel claim was predicated on the same alleged representations forming the basis for its fraud and negligent misrepresentation claims tied to the original manufacture of the trailers, the claim fails for the same reasons discussed supra in Division 3.

       See Mariner Healthcare v. Foster, 280 Ga. App. 406, 412 (5) (634 SE2d 162) (2006) (“Promissory estoppel does not apply to a promise that is vague, indefinite, or of uncertain duration.”).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A1840.
    BROWN v. THE STATE.
    (724 SE2d 410)
   BARNES, Presiding Judge.

A Walton County jury convicted Kendra Jamielle Brown of one count of robbery by force, after which she was sentenced to twenty years with three to be served in confinement. Brown filed a motion for new trial, which the trial court denied. She now appeals, contending that the evidence was insufficient to sustain her conviction. Upon our review, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). So viewed, the evidence shows that Brown and her aunt gave Tasha Jones a ride to the victim’s house under the guise of retrieving some personal items Jones had at the victim’s home. Jones and the victim had recently ended a romantic relationship. Jones testified that Brown had previously asked if the victim had any money, and that the women went to the victim’s house for the specific purpose of robbing him. She further testified that on the ride to the victim’s home, Brown opened the glove compartment of the car, showed her aunt a knife, and said that she “wasn’t going away empty-handed.” When the women arrived at the victim’s house, Brown and her aunt stayed in the vehicle while Jones talked with the victim. Brown later came into the house, asked to use the restroom, then went outside again. She called for Jones to come outside and asked her what was taking so long. Jones went back into the house, and Brown stood near the open front door holding the knife at “the side of her pants.”

Jones and the victim walked outside the house and as the two continued to talk, the aunt drove away and left the two women. Jones asked the victim for a ride home, and while the victim was putting on a shirt he retrieved from his vehicle, Brown gave Jones the knife and told her to “sit behind [the victim] and she would sit in the front seat.” Jones testified that she threw the knife behind the victim’s Jeep, but that Brown did not know that she “got rid of [the knife].” The victim told the women that he had to go inside for a moment, and the women followed him toward the house. The victim testified that he went to the house to put some of the money he had on his person in his bedroom. Jones followed him to the bedroom, and although he could not remember where Brown was, Jones testified that she was standing partially inside the front door. The victim was then hit on the back of his head, pushed down, and someone grabbed his wallet. He could not tell which of the women hit him or pushed him. Jones testified that Brown stood near the door “looking at [her] like, come on, come on” and she then pushed the victim and he hit his head, and she pushed him again and took his wallet. Brown and Jones split the money between them and threw the wallet away. The women were arrested within hours of the crime. Jones later pled guilty to the crime charged, and testified for the State at Brown’s trial.

On appeal, Brown contends that the evidence was insufficient to support her conviction. She argues that there is no evidence that she participated in the crime either directly or as a party to the crime. We do not agree.

“A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y use of force.” OCGA § 16-8-40 (a) (1). Under OCGA § 16-2-20, “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” One is concerned in the commission of a crime if she “[intentionally aids or abets in the commission of the crime.” OCGA § 16-2-20 (b) (3).

Viewed in the light most favorable to the jury’s verdict, we find that the evidence was sufficient to authorize the jury’s finding of guilt of robbery by force beyond a reasonable doubt. Brown’s conduct before, during and after the offense authorized the jury to find that she was not only present when the crime was committed but also actively aided and abetted the commission of the crime. “[P]resence, companionship, and conduct before and after the offense are circumstances from which an accused’s participation in the criminal [enterprise] may be inferred.” Billups v. State, 241 Ga. App. 825, 826 (1) (527 SE2d 905) (2000). Jurors make the required credibility determinations, and any inconsistencies in witness testimony must by resolved by the jury, not this Court. See Anthony v. State, 275 Ga. App. 274, 275 (1) (620 SE2d 491) (2005). “As long as there is some evidence, even though contradicted, to support each necessary element of the [S]tate’s case, this Court will uphold the jury’s verdict.” Id.

Decided February 27, 2012.

Charles E. W. Barrow, for appellant.

Layla H. Zon, District Attorney, Walter C. Howard, Assistant District Attorney, for appellee.

The evidence shows that Brown accompanied Jones to the victim’s home, was present with Jones while the victim was attacked and robbed by force, left the scene with Jones, and received part of the robbery proceeds. See Boggs v. State, 304 Ga. App. 698, 701 (1) (697 SE2d 843) (2010) (evidence that defendant was present at scene where victim was injured and had possession of the victim’s backpack was sufficient for robbery by force conviction).

Under these circumstances, the jury was authorized to find Brown guilty of robbery by force.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: Miller, Judge.

text:
    A11A1999.
    SKY KING 101, LLC v. THURMOND.
    (724 SE2d 412)
   Miller, Judge.

When Joseph Anduze stopped working for Sky King 101, LLC (“Sky King”), he sought unemployment compensation benefits. The Georgia Department of Labor found that Anduze was entitled to receive unemployment compensation benefits, and that Sky King was required to pay unemployment compensation taxes on the wages paid to Anduze. Sky King appealed to an administrative law judge (“ALJ”). Following an evidentiary hearing, the ALJ affirmed the Department of Labor’s initial determination, finding that the wages Sky King paid to Anduze constituted employment since the company failed to show a lack of control over him. The superior court affirmed the agency’s decision, and this Court granted Sky King’s application for discretionary appeal. On appeal, Sky King contends that the superior court applied an incorrect standard of review, and that it erred by affirming the ALJ’s decision. For the reasons that follow, we reverse the superior court’s judgment.

Judicial review of an administrative decision requires the court to determine that the findings of fact are supported by “any evidence” and to examine the soundness of the conclusions of law that are based upon the findings of fact. When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.

(Citations, punctuation and footnote omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009).

The record shows that Ra-Lin and Associates (“Ra-Lin”) formed Sky King to provide air transportation to its executives. David Rogers, a Ra-Lin employee, operated the flight department and was the regular pilot of Sky King’s plane. Rogers scheduled the flights for Sky King and would select a co-pilot to fly with him. Rogers used Anduze as a co-pilot on an as-needed basis, and Anduze was free to accept or reject any work assignments. Sky King paid Anduze $150 for each day he worked, and it also paid for other expenses he incurred during his travels for the company.

When Sky King did not have enough work for Anduze, he subsequently sought unemployment benefits. After an investigation, a claims examiner with the Department of Labor determined that Sky King was Anduze’s last employer, and that, as a result, Sky King was liable for unemployment compensation taxes on the wages paid to Anduze.

Sky King appealed that determination to an ALJ in the Office of State Administrative Hearings. Following a hearing, the ALJ upheld that Department of Labor’s initial determination. After the ALJ’s decision became the final decision of the Department of Labor, Sky King filed a petition for judicial review to the superior court. In its review, the superior court found that there was substantial evidence to support the ALJ’s findings and affirmed. Sky King appeals from the superior court’s ruling.

Sky King contends that the ALJ erred in determining that it should be assessed unemployment tax liability because Anduze was not an “employee” under the Employment Security Act, OCGA § 34-8-35 (f). We agree.

OCGA § 34-8-35 (f) (1) pertinently provides that services performed by an individual for wages shall be deemed to be employment unless it is shown that:

(A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under the individual’s contract of service and in fact; and
(B) Such individual is customarily engaged in an independently established trade, occupation, profession, or business[.]

An employer bears the burden to prove an exemption from the statutory definition of employment, and in order to do so, it must meet both elements of OCGA § 34-8-35 (f) (1). See Tanner v. Brooks, 190 Ga. App. 228, 229 (1) (378 SE2d 405) (1989) (applying former OCGA § 34-8-40 (g)); Sarah Coventry, Inc. v. Caldwell, 243 Ga. 429, 432 (2) (254 SE2d 375) (1979).

In this case, there is no challenge to the ALJ’s finding that Anduze was engaged in an independently established profession, satisfying OCGA § 34-8-35 (f) (1) (B). The question here is whether Sky King also met subsection (A). The controlling inquiry under OCGA § 34-8-35 (f) (1) (A) is whether there is an “absence of significant control or direction.” (Emphasis supplied.) Sarah Coventry, supra, 243 Ga. at 433 (2) (a). Factors showing that an individual is free from significant control or direction include, but are not limited to, the following: (i) a lack of territorial or geographic restrictions placed on the individual; (ii) no prohibition placed on the individual from working for other companies or holding other employment contemporaneously; (iii) the individual has no prescribed minimum hours to work or orders to be obtained; (iv) the individual is free to accept or reject work without consequence; and (v) the individual has the discretion to set his or her own schedule. See Sarah Coventry, supra, 243 Ga. at 433-434 (2) (a); Vocational Placement Svcs. v. Caldwell, 168 Ga. App. 198, 200 (1) (a) (308 SE2d 618) (1983).

Here, the record does not support the ALJ’s finding that Anduze was not in fact free from significant control or direction by Sky King over the performance of his services. To the contrary, Anduze was free to accept or reject offers to fly as a co-pilot; he did not have a prescribed number of hours or flights to work; he could vacation whenever he chose; and he was free to fly for other companies. Sarah Coventry, supra, 243 Ga. at 433-434 (2) (a); Vocational Placement Svcs., supra, 168 Ga. App. at 200 (1) (a). Although Rogers was the pilot in command of the airplane, Anduze was subject to Rogers’s supervision and control as a co-pilot only for purposes of ensuring compliance with flight procedures. The evidence reflected that the flight procedures and regulations that Rogers and Anduze followed were mandated by the Federal Aviation Administration, not Sky King. The fact that Sky King supplied the airplane used by Anduze establishes only minimal control. Cf. Sarah Coventry, supra, 243 Ga. at 433 (2) (a) (holding that the fact that the employer supplied property for the claimant’s use and set the terms of sales was not evidence of significant control). Compare Moore v. Williams, 95 Ga. App. 309, 311 (97 SE2d 718) (1957) (affirming finding that claimant was not free from control or direction where the employer supplied the materials, supervised work, could discharge the claimaint at will, and paid the claimant only for his labor). Under these circumstances, Sky King established that it lacked significant control over Anduze.

Decided February 27, 2012.

William G. Hamrick III, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellee.

Accordingly, we conclude that Anduze was not an employee of Sky King pursuant to OCGA § 34-8-35 (f) (1). For this reason, we reverse.

Judgment reversed.

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

       There is an alternative exception when the Internal Revenue Service determines that there is no employee status. OCGA § 34-8-35 (f) (2). However, it is undisputed that this provision does not apply in this case.


text:
    A11A2185.
    MOUGH et al. v. PROGRESSIVE MAX INSURANCE COMPANY.
    (724 SE2d 414)
   BARNES, Presiding Judge.

This case addresses whether the parents and estate administrator of an insured man who was shot and killed on his motorcycle may recover damages from the man’s uninsured motorist carrier. The trial court granted partial summary judgment to the insurance company, and the parents and administrator appeal. For the reasons that follow, we affirm.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.” McKinnon v. Progressive Bayside Ins. Co., 278 Ga. App. 429, 430 (629 SE2d 100) (2006).

So viewed, the record shows that Chélsea Gear was driving her father’s car when she became involved in an altercation with 21-year-old motorcyclist B. J. Mough. As traffic behind Mough slowed, Chelsea passed him on the right and cut back in front of him. At a stop light, Mough pulled up beside the car and Chelsea thought he was trying to intimidate her by staring, so she made an obscene gesture toward him. She then turned right toward home, and Mough followed her.

Chelsea’s sister Samantha Gear was a passenger in the car, and called their mother Diana Gear to tell her the girls were being followed by a motorcyclist. Chelsea stopped at a stop sign, Mough pulled up beside her, and as both vehicles started forward, Chelsea turned toward the left and collided with the motorcycle. Chelsea did not stop. Diana Gear told her husband Richard Gear that the girls were being followed, and he waited for them in his driveway, holding a gun. Chelsea pulled the car into the driveway, close to the house. Mough rode slowly by the house, and after he turned around at the end of the street, Richard Gear shot and killed him.

Individually and as the administrators of Mough’s estate, Mough’s parents sued all four members of the Gear family as well as Mough’s uninsured motorist carrier, Progressive Max Insurance Company. Progressive moved for summary judgment, arguing that Richard Gear’s conduct did not arise out of the use of the covered motorcycle and thus damages resulting from that conduct were not covered by Mough’s uninsured motorist policy. The trial court agreed that Progressive was entitled to partial summary judgment on Mough’s wrongful death claim, but denied its motion for summary judgment on Mough’s claim for damages resulting from physical contact between Mough and the Gear vehicle.

The Moughs appeal the trial court’s grant of summary judgment to Progressive on their wrongful death claim, arguing that issues of fact in the record would authorize a jury to find that the uninsured motorist policy covered the circumstances of B. J. Mough’s death.

The insurance policy provides coverage for

damages, other than punitive or exemplary damages, which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury or property damage:
1. sustained by an insured person;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of an uninsured motor vehicle.

The Moughs argue that the Gear vehicle was used to lead their son

to his death because the Gear sisters used it to leave the location of a traffic accident that obviously did not occur in the presence or vicinity of their father and his gun. [Cites.] Without the Gear vehicle leading B. J. Mough to the barrel of Defendant Richard Gear’s gun, the occasion for B.J. Mough to be shot at and killed would not have occurred.

“Arising out of” does not equal proximate cause or require that the injury be directly caused by the use of a vehicle; only a “slight causal connection” between the damages and the use of the vehicle is required. Abercrombie v. Ga. Farm Bureau Mut. Ins. Co., 216 Ga. App. 602, 604 (454 SE2d 813) (1995). In Abercrombie, two cars collided, the drivers argued, and a passenger in one car shot and killed the driver of the other car. His widow sued the shooter and his driver, who had no liability coverage because the driver’s insurance policy excluded damages resulting from intentional acts. The widow also sued her husband’s uninsured motorist carrier, and this court held that the shooting was covered because the initial collision arose from the “use” of the uninsured vehicle, which was again “used” to chase and inflict injury on the decedent. Id. at 603.

Numerous cases address whether injuries from gunshots arose from the use of a vehicle. On the one hand, injuries resulting from an overturned truck that wrecked because an unidentified motorist shot at it during a high speed chase following a collision “indisputably” arose from the use of the uninsured vehicle. See Ins. Co. of North America v. Dorris, 161 Ga. App. 46, 47 (1) (288 SE2d 856) (1982). In a different context, injuries caused by the accidental discharge of a gun inside a vehicle traversing bumpy roads are also caused by the use of the vehicle. See Payne v. Southern Guaranty Ins. Co., 159 Ga. App. 67 (282 SE2d 711) (1981); Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 563-564 (1) (236 SE2d 550) (1977).

On the other hand, we have held that various incidents of “road rage” did not arise out of the use of a vehicle so as to be covered by an insurance policy, in cases unlike this one where the raging person was actually the vehicle’s driver. See Rustin v. State Farm &c. Ins. Co., 254 Ga. 494, 495 (1) (330 SE2d 356) (1985) (shooting after both drivers left their vehicles did not “result from” vehicle use); Longabaugh v. State Farm &c. Ins. Co., 205 Ga. App. 854, 855 (1) (424 SE2d 49) (1992) (emotional distress from other driver’s derogatory remarks after collision did not result from vehicle use).

“[T]he general rule is that where a connection appears between the ‘use’ of the vehicle and the discharge of the firearm and resulting injury!,] such as to render it more likely that the one grew out of the other, it comes within the coverage defined.” (Citation and punctuation omitted.) USAA Property &c. v. Wilbur, 207 Ga. App. 57, 59 (427 SE2d 49) (1993) (use of insured vehicle to transport murder victim to woods where she was killed is “too remote and attenuated to establish the required causal nexus”). So, for example, the death of a taxi driver who was shot in his cab did not arise out of the use of his vehicle, see Westberry v. State Farm &c., 179 Ga. App. 700, 700-702 (1) (347 SE2d 688) (1986); nor did the death of a passenger shot inside a bus arise out of the use of the bus. See Payne v. Twiggs County School Dist., 269 Ga. 361, 363-364 (2) (496 SE2d 690) (1998); Washington v. Hartford Accident & Indem. Co., 161 Ga. App. 431, 431-432 (1) (288 SE2d 343) (1982).

Decided February 27, 2012.

Eberhardt & Hale, M. Eric Eberhardt, for appellants.

Downey & Cleveland, Robert C. Harrison, Joshua S. Ruplin, Worsham, Corsi, Scott & Edwards, Toqeer A. Chouhan, for appellee.

In this case, the father who shot and killed B. J. Mough was never inside the vehicle driven by his daughter, and the vehicle itself did not cause B. J.’s death. While Chelsea Gear’s driving may have provoked a confrontation of some sort, and her failure to stop after colliding with Mough’s motorcycle may have “led” him to her driveway, Richard Gear’s decision to shoot Mough was independent of his daughter’s use of the vehicle. “Simply put, [B. J. Mough’s] physical injuries were too remote from [Gear’s] vehicle use, ownership, or maintenance to fall within the UM provision.” Kinzy v. Farmers Ins. Exchange, 293 Ga. App. 509, 510-511 (1) (667 SE2d 673) (2008). While the “use” of the Gear vehicle may have led B. J. Mough to pass by the Gears’ driveway, the damages leading to his death were caused by the father’s independent actions. Accordingly, we find no error in the trial court’s grant of partial summary judgment to Progressive.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Richard Gear was incarcerated in a state prison when he answered the complaint in March 2010


author: Dillard, Judge.

text:
    A11A2314.
    IN RE MAHMOODZADEH.
    (724 SE2d 797)
   Dillard, Judge.

Monica Mahmoodzadeh, the widow of Payam Mahmoodzadeh, filed a petition for year’s support in the Probate Court of Cobb County, seeking to set aside real property and funds in various money-market accounts. In response to the petition, Renasant Bank and the parents of the decedent, Aghdad and Roohullah Mahmoodza-deh, filed caveats objecting to setting aside one of the accounts and the real property as year’s support, contending that these items were not part of the decedent’s estate. The probate court allowed these objections and subsequently denied any sum of year’s support to the widow on the basis that she had failed to prove the amount of year’s support necessary. This appeal by the widow follows, in which she contends that the trial court erred by (1) exceeding its subject matter jurisdiction, (2) allowing the bank and decedent’s parents to raise objections, (3) converting caveats challenging title into caveats as to the nature and amount of year’s support, and (4) improperly shifting the burden of proof to the widow. And because we agree that the probate court erred by allowing objections by the bank and decedent’s parents on the basis of adverse title, we reverse the court’s judgment and remand for further proceedings consistent with this opinion.

The record reflects that Payam and Monica Mahmoodzadeh were married without children, and that Payam died intestate on July 28, 2010. On August 16, 2010, the widow filed a petition for year’s support from the decedent’s estate, proposing to set aside the balance of four money-market accounts. In response to this petition, Renasant Bank filed a caveat on September 17, 2010, contending that one of the money-market accounts was not part of the decedent’s estate and, thus, that it could not be set aside as year’s support.

In November 2010, the widow amended the schedule of property requested for year’s support to include, in addition to the four money-market accounts previously requested, four pieces of real property. Thereafter, the decedent’s parents sought permission to file an out-of-time caveat to the petition for year’s support and filed same on April 12, 2011. The parents’ caveat contended that the four pieces of real property were “a continuing joint investment program between the decedent and . . . his parents.” The parents amended their caveat two times but continued to solely argue that the real property should not be set aside in an award of year’s support due to the parents’ ownership interest in the property. The widow sought to dismiss the parents’ caveat on the basis that they did not have an enforceable interest in the land and that they lacked standing to bring a caveat against the petition for year’s support.

At a hearing on the petition, caveats, and various motions, the widow’s attorney announced that the widow would not contest the bank and decedent’s parents “having a hearing on the merits if they want to make an adverse claim to the estate,” and further noted that after speaking with counsel for both caveators, there was a stipulation that “they’re not challenging the amount or nature of the property sought in the petition or the amended petition except to the extent that they’re making adverse claims to the estate.” In response, the probate court explained that it did not have jurisdiction over the validity of any adverse-title claims. Nevertheless, counsel for the decedent’s parents then offered that the parents were present “to object to the setting aside of property that belongs to a partnership and doesn’t belong to the estate.” But the probate court again expressed that it did not have jurisdiction over claims of adverse title.

Thereafter, counsel for the widow again stated that the parties

all agreed to stipulate as to the amount and nature of the property, that [this] was proper and then they have claims that their two pieces of property — the bank’s one [money-market account] and [the parents’] four [pieces of contested property] [ — ]are not part of the estate. And [that is] the nature of their objection.

Counsel for the bank also noted that it was “not making an adverse claim on the estate” but was instead “filing a caveat to that part of the petition in which the petitioner asks that a certain money market account be set aside as year’s support” because “the money market account and those funds are not part of the estate and can’t be set aside as year’s support.”

After hearing the foregoing arguments, the court, yet again, explained that it did not have jurisdiction over title disputes and that it only had the power to grant or deny the petition for year’s support and, if granted, to determine the amount awarded. Specifically, the court instructed the bank and the decedent’s parents that “[y]ou are either objecting to this petition for year’s support or you’re not. And, if you’ve got a claim to that property, you have to go somewhere else.” The court also instructed the parties that “[m]aking an adverse claim to a line item of property is not contemplated in year’s support.”

Discussion of the matter continued, and the probate court once more reiterated that “[t]itle to property is not within my jurisdiction.” Counsel for the widow then replied:

I think that’s really the issue between us and I don’t think really anybody has contested the nature or whether she’s entitled to it or whether the amount is sufficient or excessive or etcetera. So, what I would propose ... is that the property be set aside subject to rights of any adverse claimant to the property to litigate the issue of title to those properties.

But the court responded, “That’s not what’s before me. A contested petition for year’s support is before me. They have objected because their rights to the estate may be affected by the petition.” The court also explained that “[i]f the estate doesn’t own it, then it’s not a valid transfer,” but then the court, nevertheless, allowed the proceedings to continue by construing the objections by the parents and the bank to be based on the petition as a whole.

After the hearing, which included testimony by the widow as to the lifestyle she enjoyed with the decedent and testimony by the decedent’s parents as to the nature of their real-estate partnership with the decedent, the court declined to award the widow any amount of year’s support, holding that she had failed to meet the burden of proof as to the amount required for her support. This appeal by the widow follows, in which she argues that the probate court erred by (1) exceeding its subject-matter jurisdiction, (2) allowing the bank and decedent’s parents to raise objections, (3) converting caveats challenging title into caveats as to the nature and amount of year’s support, and (4) improperly shifting the burden of proof. We agree with the widow that the trial court erred by placing upon her a burden of proof by allowing the bank and decedent’s parents to object when their objections were clearly limited to a matter outside the probate court’s jurisdiction.

At the outset, we note that “[t]he probate court’s determination of the amount awarded as year’s support will be upheld on appeal absent an abuse of discretion.” A claim for year’s support “is a statutory claim stemming from the historical purpose: to prevent a family from being turned away houseless — a widow and children — and cast upon the world in their forlorn condition.” In this regard, the modern intent of providing year’s support “is to protect the family survivors from a reduction in their standard of living while the estate is being settled, at least for one year.” Thus, our law provides that “[t]he surviving spouse and minor children of a testate or intestate decedent are entitled to year’s support in the form of property for their support and maintenance for the period of 12 months from the date of the decedent’s death.”

A petition for year’s support must be filed in the probate court with jurisdiction over the decedent’s estate within 24 months of the decedent’s death. And when a petition is filed, the probate court is required to issue a citation and publish notice in accordance with the provisions of OCGA § 53-3-6, including as to any “interested persons,” which are defined as “the decedent’s children, spouse, other heirs, beneficiaries, creditors, and any others having a property right in or claim against the estate of the decedent which may be affected by the year’s support proceedings.”

After providing the required notice, if no objection is made to the petition or, if made, is disallowed or withdrawn, the probate court is required to “enter an order setting aside as year’s support the property applied for in the petition.” However, if an objection is made, the court must “hear the petition and, upon the evidence submitted, shall determine the property to be set aside according to the standards set out in subsection (c) of this Code section.” That subsection provides that “[i]f objection is made to the amount or nature of the property proposed to be set aside as year’s support, the court shall set apart an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent. . . ,” In determining this amount, the court must consider (1) support available from sources other than year’s support (e.g., separate estates, income, earning capacity), (2) the estate’s solvency, and (3) other relevant criteria the court deems equitable and proper. Finally, if an objection is made, the petitioner for year’s support bears the burden of proving the amount necessary for year’s support.

Moreover, when an objection is filed against a petition for year’s support,

[i]t simply calls into question the matter of whether the amount [requested] is in excess of that to which the [surviving spouse] and children are entitled under the law; or whether the applicants are in fact the [surviving spouse] and children of the deceased, for if they are not, no legal year’s support could be set apart to them.

But in the case sub judice, it is clear from the record, as detailed supra, that the sole objections to the widow’s petition were based on contentions that the relevant money-market account and real property should not be included in an award of year’s support because these items were not part of the decedent’s estate. Indeed, the parties did not object to the widow’s right to claim year’s support or the amount she sought as exceeding that which would be necessary to maintain her standard of living. And as explained infra, although the trial court recognized its jurisdictional limitations and did not actually determine a title dispute, the court erred by allowing the parties to object solely on this ground and, further, by denying the widow’s petition based on a failure to meet the burden of proof during the proceeding that resulted from allowing these improper objections.

It is well settled that probate courts “do not have jurisdiction to adjudicate conflicting claims of title to real or personal property.” Nevertheless, a probate court may award as year’s support a decedent’s interest in property subject to such a dispute. Indeed, a probate court’s order of year’s support sets aside no more than the interest the decedent held in the property at his or her death, without attempting to determine title to the property. And, thereafter, it is the enforcement of such an award of year’s support which requires “that a determination of. . . interest and title be made by a court with jurisdiction of that issue.”

We recognize that the probate court in this matter correctly informed the parties that any award of year’s support would be void as to property that was not properly included in the estate and that this issue would need to be litigated elsewhere. Nevertheless, the court abused its discretion and erred by allowing the bank and decedent’s parents to object to the petition for year’s support solely on the basis that the relevant money-market account and real property were not part of the estate, because the court — as it repeatedly acknowledged — lacked the jurisdiction to determine that issue.

Decided February 27, 2012.

Nall & Miller, Mark D. Lefkow, for appellant.

Sellers & Warren, Theron D. Warren III, Charles L. Day, for appellee.

Indeed, despite this jurisdictional limitation and the lack of an appropriate objection by the caveators, the probate court proceeded to conduct a hearing as to the amount necessary for the widow’s support, thereby inappropriately placing upon her a burden of proof that was contrary to OCGA § 53-3-7 (a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. Accordingly, the trial court erred by allowing the bank and parents’ objections solely on the basis of adverse title and by thereafter denying year’s support to the widow as requested when she failed to meet the resulting burden of proof. We therefore remand to the probate court to grant the petition for year’s support and, in doing so, we make no ruling as to the issue of disputed title and reiterate that any such claims must be litigated in the appropriate forum.

Judgment reversed and case remanded with direction.

Mikell, P. J., and Boggs, J., concur.

       We note that while Renasant Bank filed an appellee brief, the decedent’s parents did not file a brief in this appeal.

        Hunter v. Hunter, 256 Ga. App. 898, 899 (569 SE2d 919) (2002); accord In re Estate of Battle, 263 Ga. App. 73, 73 (587 SE2d 140) (2003).

        Anderson v. Westmoreland, 286 Ga. App. 561, 563 (649 SE2d 820) (2007). See generally Mary F. Radford, Redfearn Wills and Administration in Georgia § 10:1 (7th ed. 2008 & Supp. 2011-2012) (discussing the evolution of the doctrine of year’s support in Georgia).

        Holland v. Holland, 267 Ga. App. 251, 255 (599 SE2d 242) (2004) (punctuation omitted); see also Taylor v. Taylor, 288 Ga. App. 334, 337 (1) (654 SE2d 146) (2007) (“[A] claim for year’s support is not analogous to a tort claim where general damages can be awarded based on the enlightened consciences of impartial jurors. Nor is it a claim for loss of consortium where damages are not capable of exact pecuniary measure and are left to the enlightened consciences of impartial jurors.” (punctuation omitted)).

       OCGA § 53-3-1 (c).

       OCGA § 53-3-5 (a), (c). OCGA § 53-3-5 (b) describes the applicable requirements of the petition as follows:
      The petition shall set forth, as applicable, the full name of the surviving spouse, the full name and birthdate of each surviving minor child and a schedule of the property, including household furniture, which the petitioner proposes to have set aside. The petition shall fully and accurately describe any real property the petitioner proposes to have set aside with a legal description sufficient under the laws of this state to pass title to the real property.

        See OCGA § 53-3-6 (c) (l)-(3).

       OCGA § 53-3-6 (a).

       OCGA § 53-3-7 (a); see also Lunsford v. Kersey, 191 Ga. 738, 740 (13 SE2d 803) (1941) (applying prior version of year’s support law, which required the return of appraisers and viewed the return as prima facie evidence of the amount necessary to support a petitioner, and approving of prior holdings that “unless objections are filed,.. . further duties on the part of the [probate court] are purely ministerial” and the probate court lacks jurisdiction to modify the return).

       OCGA § 53-3-7 (b).

       OCGA § 53-3-7 (c).

        Id.

        Id.

        Sanders v. Fulton County, 111 Ga. App. 434, 438 (1) (142 SE2d 293) (1965) (analyzing prior version of statute); see Anderson, 286 Ga. App. at 563-64 (holding that widow failed to meet burden of proof with regard to the amount necessary for her support after decedent’s daughter filed a caveat challenging the requested amount as excessive); Taylor, 288 Ga. App. at 338 (1) (holding that court properly declined to award additional amount to widow as year’s support when widow had previously agreed to division of property that would provide adequate support); Holland, 267 Ga. App. at 255 (holding that widow did not meet burden of proof with regard to the amount necessary for her support after decedent’s son filed a caveat challenging the requested amount as excessive); Allgood v. Allgood, 263 Ga. App. 177, 179 (1) (587 SE2d 377) (2003) (holding that widow did not meet burden of proof with regard to amount necessary for her support after decedent’s children filed a caveat challenging the requested amount as excessive); Hunter, 256 Ga. App. at 899-900 (holding that probate court abused its discretion in awarding requested year’s support because the widow did not meet burden of proof with regard to amount necessary for her support after beneficiaries under decedent’s will filed a caveat challenging the requested amount as excessive).

        See Ga. Const, art. 6, § 1, ¶ IV (“Each court may exercise such powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments . . . .”); Durham v. Durham, 107 Ga. 285, 287 (33 SE 76) (1899) (holding that probate court properly dismissed objection to petition for year’s support on the basis of an adverse title claim because probate court did not have jurisdiction over such a claim); see also Dix v. Dix, 132 Ga. 630, 638-39 (64 SE 790) (1909) (disapproving of Durham v. Durham, 107 Ga. 285 (33 SE 76) (1899), to the extent that it contained dicta suggesting that a court’s lack of subject-matter jurisdiction could be waived by consent of parties or a failure to object). Cf. In re Estate of Brice, 288 Ga. App. 449, 451 (1) (654 SE2d 420) (2007) (recognizing that probate courts have the “authority to dismiss, sua sponte, a motion that the court can otherwise determine from the pleadings cannot succeed as a matter of law”).

        Cunningham v. Estate of Cunningham, 304 Ga. App. 608, 609 (1) (697 SE2d 280) (2010) (punctuation omitted); see Ga. Const. art. 6, § 3, ¶ I (establishing the probate court as one of limited jurisdiction); OCGA § 15-9-30 (detailing subject matter jurisdiction of probate courts); see also Ray v. Nat’l Health Investors, Inc., 280 Ga. App. 44, 47 (1) (633 SE2d 388) (2006) (“The probate court has no jurisdiction to adjudicate conflicting claims of title to real or personal property.”); McClure v. Mason, 228 Ga. App. 797, 798 (1) (493 SE2d 16) (1997); Johnson v. Johnson, 199 Ga. App. 549, 550 (1) (405 SE2d 544) (1991).

        See Brown v. Granite Holding Corp., 221 Ga. 560, 565 (4) (146 SE2d 289) (1965) (“It is true as a matter of law that a year’s support for a widow can be set apart to her only from the estate of her deceased husband; and if property included therein does not as a matter of fact constitute a part of his estate, the judgment of the [probate court] simply will not attach to such property, but will be void as applied thereto.” (punctuation omitted)); Johnson v. City of Blackshear, 196 Ga. 652, 659 (2) (27 SE2d 316) (1943) (same); McClure, 228 Ga. App. at 798 (1) (same); see also Johnson, 199 Ga. App. at 550 (1) (“The court’s order sets aside no more than any interest the decedent held in the real property at her death, without attempting to determine title to the property.”); Trusco Finance Co. v. Crowley, 86 Ga. App. 268, 270 (71 SE2d 294) (1952) (“Should a [probate court] set aside as a year’s support real property not that of the deceased’s estate, that judgment would not be binding as to third parties situated as the caveator here, and would not be res judicata in a subsequent trial of the issues in a proper court.”).

        McClure, 228 Ga. App. at 798 (1).

        See id.; see also Brown, 221 Ga. at 565 (4); Johnson, 196 Ga. at 659 (2).

        See Ga. Const, art. 6, § 3, ¶ I; OCGA § 15-9-30; Cunningham, 304 Ga. App. at 609 (1); Ray, 280 Ga. App. at 47 (1); McClure, 228 Ga. App. at 798 (1); Johnson, 199 Ga. App. at 550 (1); see also Durham, 107 Ga. at 285.

        See supra note 14 and accompanying text. Compare Johnson, 199 Ga. App. at 550-51 (1), (2) (caveator objected to petition for year’s support and subsequent award on basis of adverse title and that the requested amount exceeded that necessary to maintain the petitioner’s standard of living).

        Compare OCGA § 53-3-7 (a) (requiring the probate court to award petition for year’s support without further inquiry when no objection is filed or, if filed, is disallowed or withdrawn), with OCGA § 53-3-7 (c) (placing upon year’s support petitioner a burden to prove the amount necessary for year’s support when an objection “is made to the amount or nature of the property proposed to be set aside”). Indeed, prior to amendments to the probate code in 1986,
      the amount of the year’s support award was determined by an appointed group of five appraisers. When this system was abolished, the task of determining the amount of the award went to the probate judge. While the 1998 revisions left that task with the probate judge, the revisions clarified that the judge is to determine the amount of the award only in those cases in which an objection is filed to the amount requested by the spouse or children.
      Radford, supra note 3, § 10:1 (footnotes omitted).

        Cf. Durham, 107 Ga. at 287 (holding that probate court properly dismissed objection to petition for year’s support on the basis of an adverse title claim because probate court did not have jurisdiction over such a claim).

        See McClure, 228 Ga. App. at 798 (1).


author: Andrews, Judge.

text:
    A11A1986, A11A1987.
    MAPP et al. v. WE CARE TRANSPORTATION SERVICES, INC. et al.; and vice versa.
    (724 SE2d 790)
   Andrews, Judge.

These appeals arise from claims brought by the estate and the surviving children of Vera L. Travis, deceased, alleging that We Care Transportation Services, Inc. and its employee, Alvis A. Haadee, negligently injured Travis and caused her death. The estate and the children alleged that: (1) Travis suffered injuries on March 6, 2007, when she fell out of her wheel chair to the floor of We Care’s non-emergency medical transportation van while the van was being driven by Haadee; and (2) that these injuries caused or contributed to Travis’s death on August 28, 2007. Gladys E. Mapp, as the representative of Travis’s estate, brought claims seeking recovery for Travis’s pre-death pain and suffering and medical expenses. Travis’s surviving children, Gladys E. Mapp, Helen Woods, Vera Clark, and Marie Haynes, brought a wrongful death claim seeking recovery for the full value of Travis’s life.

We Care and Haadee moved for summary judgment on all the claims, and on May 5, 2010, the trial court granted summary judgment to We Care and Haadee on the children’s wrongful death claim, and denied summary judgment to We Care and Haadee as to the claims brought by the estate representative. On May 6, 2010, the estate representative filed a voluntary dismissal without prejudice of the claims brought by Travis’s estate against We Care and Haadee. On May 26, 2010, the four children filed a notice of appeal from the trial court’s grant of summary judgment on their wrongful death claim, and on June 10, 2010, We Care and Haadee cross-appealed from the trial court’s denial of their motion for summary judgment on the claims brought by the estate. Pursuant to OCGA § 5-6-48 (c), the trial court subsequently dismissed the appeal brought by the children finding that the failure to pay costs in the trial court caused an unreasonable and inexcusable delay in transmission of the appellate record to this court. In Case No. A11A1986, the children appeal from the trial court’s order dismissing their appeal, and in Case No. A11A1987, We Care and Haadee cross-appeal from the trial court’s denial of their motion for summary judgment on the estate’s claims. For the following reasons, we affirm in part, vacate in part, and remand to the trial court in Case No. A11A1986, and dismiss as moot the appeal in Case No. A11A1987.

Case No. A11A1986

1. Pursuant to OCGA § 5-6-38 (b), the trial court divided the costs of preparing the appellate record and on September 13, 2010, entered an order directing that the statement for costs in the amount of $10,265 be paid within 20 days of the court’s order — $5,132.50 to be paid for the appeal by the children and $5,132.50 to be paid for the cross-appeal by We Care and Haadee. Based on its order dividing the costs between the appeal and the cross-appeal, the court declined to relieve Mapp, Woods, and Haynes from paying costs based on affidavits of indigence they previously filed pursuant to OCGA § 9-15-2 which stated they were unable to pay costs in the amount of $10,265. In response to the court’s order dividing costs, We Care and Haadee paid costs for the cross-appeal in the amount of $5,132.50, but none of the four children paid any of the costs for their appeal. Instead, Mapp and Woods each filed an affidavit of indigence pursuant to OCGA § 9-15-2 stating that they were unable to pay costs in the amount of $5,132.50. The trial court ruled that, because Clark and Haynes did not file affidavits of indigence and were not relieved from paying the costs, it need not inquire into the truth of the affidavits of indigence filed by Mapp and Woods. Thus, based on the failure of Clark and Haynes to pay costs as ordered, the trial court dismissed the appeal as to all four children pursuant to OCGA § 5-6-48 (c) finding that the failure to pay costs caused an unreasonable and inexcusable delay in transmission of the appellate record.

The surviving children claim that, because Mapp and Woods subscribed affidavits of indigence pursuant to OCGA § 9-15-2, the trial court erred: (1) by failing to find that they were indigent and relieved of paying costs and (2) by striking the notice of appeal and dismissing the appeal.

First, we find no error in the trial court’s dismissal of the appeal pursuant to OCGA § 5-6-48 (c) as to the interests of Clark and Haynes. Under OCGA § 5-6-48 (c),

the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.

“Whether or not to dismiss a notice of appeal for delay in paying costs rests in the sound discretion of the trial court when the grounds to dismiss have been met.” Mitchell v. Cancer Carepoint, Inc., 299 Ga. App. 881, 883 (683 SE2d 923) (2009) (citation and punctuation omitted). Costs were not paid; neither Clark nor Haynes filed an affidavit of indigence; and neither gives any explanation or makes any argument on appeal as to why they failed to pay. We find the trial court did not abuse its discretion to the extent it dismissed the appeal as to the interests of Clark and Haynes.

We find, however, that the trial court erred by concluding that, because Clark and Haynes failed to pay costs or demonstrate indigence, the court was required to dismiss the appeal as to the interests of Mapp and Woods and need not consider their affidavits of indigence. Under OCGA § 9-15-2 (a) (1):

When any party, plaintiff or defendant, in any action or proceeding held in any court in this state is unable to pay any deposit, fee, or other cost which is normally required in the court, if the party shall subscribe an affidavit to the effect that because of his indigence he is unable to pay the costs, the party shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.

Similarly, OCGA § 5-6-47 (a) provides:

In all civil cases where the party taking an appeal files an affidavit stating that because of his indigence he is unable to pay costs or to post a supersedeas bond, if any, as may be required by the trial judge as provided in Code Section 5-6-46, the notice of appeal and affidavit of indigence shall act as supersedeas.

In the case of multiple parties jointly appealing, the plain and explicit terms of OCGA §§ 9-15-2 (a) (1) and 5-6-47 provide that, if any of the appealing parties subscribes an affidavit stating that, because of indigence, the party cannot pay required costs, the party is relieved from paying the costs and “his rights shall be the same as if he had paid the costs.”

In the present case, assuming that Mapp and Woods filed true affidavits of indigence (see OCGA § 9-15-2 (a) (2), (b)), they retained rights to appeal from the summary judgment order dismissing their proportionate shares of the wrongful death action. The cause of action for wrongful death was not jointly in all of the surviving children or in none of them. Walden v. Coleman, 217 Ga. 599, 605 (124 SE2d 265) (1962). Originally, the four surviving children each had a separate cause of action for one-fourth of the full value of Travis’s life which they asserted together. Southeastern Greyhound Lines v. Wells, 204 Ga. 814, 816-817 (51 SE2d 569) (1949); Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 518-519 (191 SE2d 324) (1972). As set forth above, Clark and Haynes lost their rights to pursue the appeal from the trial court’s grant of summary judgment. Assuming the truth of their affidavits of indigence, Mapp and Woods retained their rights to appeal from the summary judgment order dismissing their proportionate shares of the wrongful death action. See Wells, supra; Lynn, supra. Accordingly, we affirm the trial court’s dismissal of the appeal as to the interests of Clark and Haynes; vacate dismissal of the appeal as to the interests of Mapp and Woods; and remand the case for the trial court to make a determination as to the truth of the affidavits of indigence.

Decided February 6, 2012

Reconsideration denied February 28,2012

Michael B. King, for appellants.

Michael P. Bain, for appellees.

Case No. A11A1987

2. We Care and Haadee claim the trial court erred by denying their motion for summary judgment on claims asserted by Travis’s estate. Because prior to the appeal in this case the estate representative filed a voluntary dismissal without prejudice of the claims brought by Travis’s estate against We Care and Haadee, we dismiss the appeal as moot. OCGA § 9-11-41 (a).

Judgment affirmed in part, vacated in part, and case remanded in Case No. A11A1986. Appeal dismissed as moot in Case No. A11A1987.

Phipps, P. J., and McFadden, J., concur.