text:
    A11A0887.
    RIDDICK et al. v. WILLIAMS & BOWLING DEVELOPERS, LLC et al.
    (716 SE2d 776)
   Dillard, Judge.

Following the arbitration of a legal dispute related to the construction of their home, Sylvia and Dennis Riddick appeal from the trial court’s denial of their application to confirm the arbitration award in their favor against Williams & Bowling Developers, LLC (“W&B”) because it was filed more than a year after the award had been issued to the parties. Specifically, the Riddicks argue that the trial court erred in denying their application because it failed to take into account evidence allegedly tolling the one-year limitations period for confirming such arbitration awards. For the reasons noted infra, we affirm.

In January 2006, the Riddicks filed suit against W&B and its principals, David Bowling and Brad Williams (collectively, “appel-lees”), among others, claiming breach of contract for alleged defects in the construction of their home. Appellees then successfully moved to compel arbitration and, following a hearing, the arbitrator issued an award on April 7, 2007 in favor of the Riddicks against W&B for $21,500. The arbitrator’s award did not, however, assess any damages against Bowling and Williams individually.

Just over one year later (on April 21, 2008), the trial court issued an order directing the parties to seek clarification as to whether the arbitrator had considered the Riddicks’ claims against Bowling and Williams individually. And while the arbitrator’s response — that it had indeed considered and rejected the Riddicks’ claims against the individual appellees — was dated May 28, 2008, it was apparently not received by the parties until May 6, 2009.

On January 7, 2010, nearly three years after the arbitration award was issued, the Riddicks filed an application to confirm the arbitrator’s award. The trial court denied the motion on the ground that it was not filed in a timely manner.

On appeal, the Riddicks argue that the trial court erred in concluding that they failed to timely move for confirmation of the arbitrator’s award in their favor. We disagree.

Decided September 14, 2011.

Louise T. Hornsby, Audrey L. Arrington-Hawkins, for appellants.

Under Georgia law, “[t]he [trial] court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified by the court. . . ,” And as our Supreme Court has emphasized, compliance with this one-year limitations period by the prevailing party to an arbitration proceeding is not optional. Thus, a timely filing is a “prerequisite[ ] to maintaining an arbitration confirmation action.”

It follows, then, that the Riddicks’ motion to confirm the arbitration award — filed nearly three years after it was issued — was time barred. And contrary to the Riddicks’ argument, the trial court’s order directing the parties to seek clarification of that award in no way changes this result. Indeed, this alleged tolling event took place after the expiration of the one-year deadline for filing the application. Moreover, even if the trial court had directed the parties to seek clarification of the arbitrator’s award within the relevant one-year limitations period, it would still be of no consequence. As noted supra, the text of OCGA § 9-9-12 provides only two means of tolling the statute’s one-year deadline for a prevailing party to seek confirmation of an arbitration award (i.e., a vacatur or modification of that award by the trial court), neither of which is applicable in the case sub judice. Thus, any alleged confusion as to the scope of the arbitrator’s award — on either the part of the trial court or the parties — did not relieve the Riddicks of their statutorily imposed duty (as the prevailing parties) to file a timely application for confirmation of the arbitration award. Accordingly, we affirm the trial court’s order.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

Oliver Maner, Benjamin M. Perkins, Anderson, Tate & Carr, Donald L. Swift III, Robert M. Reeves, for appellees.

       Bowling and Williams, individually, were not bound by the arbitration provision of the contract, but nonetheless agreed to participate in the proceedings and be bound by the arbitration award. The other named defendants in the lawsuit were not parties to the relevant contract and did not participate in the arbitration.

       The record contains nothing related to the arbitration from the issuance of the trial court’s April 7, 2007 order until this date.

       As noted in footnote 1, Bowling and Williams were parties to and agreed to be bound by the arbitration proceeding. Moreover, according to the appellees’ brief, the trial court’s order denying confirmation of the arbitration award was preceded by the Riddicks filing a second lawsuit in state court against Bowling and Williams individually, which Bowling and Williams defended on the ground that the lawsuit was barred by their participation in a binding arbitration proceeding. No such pleadings, however, are contained within the appellate record.

       OCGA § 9-9-12 (emphasis supplied); see OCGA § 9-9-13 (governing the vacation of arbitration awards); OCGA § 9-9-14 (governing the modification of arbitration awards).

        See, e.g., Hardin Constr. Group, Inc. v. Fuller Enters., Inc., 265 Ga. 770, 772 (462 SE2d 130) (1995) (holding “a party seeking confirmation of an arbitration award must comply with the one year time requirement”); see also OCGA § 9-9-12.

        Hardin Constr. Group, Inc., 265 Ga. at 772 (emphasis omitted).

        See OCGA § 9-9-12; Hardin Constr. Group, Inc., 265 Ga. at 772.

       It is undisputed that the Riddicks did not move to vacate or modify the award, nor was the award vacated or modified by the trial court.

        Cf. Hardin Constr. Group, Inc., 265 Ga. at 772 (“Whether the applicable statute of limitation or other jurisdictional prerequisites have been met are issues necessarily resolved by the trial court after the party seeking confirmation files its application for confirmation.” (footnote omitted)).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A1358.
    MYERS v. THE STATE.
    (716 SE2d 772)
   Dillard, Judge.

Following a jury trial, Randy Thomas Myers was convicted of aggravated assault, fleeing and attempting to elude police, two counts of obstructing officers, and various traffic offenses. Myers appeals his convictions, contending that (1) the evidence was insufficient as to the aggravated-assault conviction, (2) the counts of aggravated assault and fleeing and attempting to elude were improperly and incompletely alleged in the indictment, and (3) the prosecution improperly and deliberately placed his character at issue. For the reasons noted infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that on August 11, 2004, Myers was the subject of a “be on the lookout” (“BOLO”) issued by the United States Marshal Service, which advised law enforcement that Myers was known to be traveling in a green Chevrolet Tahoe. As a result of this BOLO, an officer with the Rome City Police Department — while directing traffic — spotted a green Tahoe and a driver who matched Myers’s description, along with a passenger.

After the officer spotted Myers inside the Tahoe and began to approach, the vehicle pulled out of the traffic, sped directly toward the officer and then away from the scene. At trial, the officer testified that he would have been hit by the Tahoe had he not stepped out of its way and that he and another officer thereafter pursued Myers in a high-speed chase. Although the Tahoe stopped at one point during the pursuit, it sped away again as the officer exited his patrol car and began to approach the vehicle. The chase finally ended when the Tahoe veered off into rough terrain that made it impossible for the patrol cars to follow, and law enforcement subsequently found the vehicle abandoned in the woods.

The next day, police apprehended Myers’s passenger (the owner of the Tahoe) in the vicinity of the same wooded area, and there was testimony that something (or someone) was heard running through the woods during the passenger’s arrest. And while Myers was not located that day, he was apprehended a few days later. Thereafter, Myers was indicted and tried by a jury, which found him guilty of aggravated assault, fleeing and attempting to elude police, two counts of obstructing an officer, and various other traffic offenses. This appeal follows.

1. Myers first challenges the sufficiency of the evidence with regard to his conviction for aggravated assault, contending that the State “failed to prove any intent to make an assault of [the law enforcement officer]” or “apprehension of any injury by or on the part of [the law enforcement officer].” We disagree.

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” And we “do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” So viewed, it is clear from the appellate record that the State met its burden of proof.

Myers was charged with committing aggravated assault upon a police officer based on his act of driving toward the uniformed officer as he sped away from where the officer was directing traffic. The State alleged that Myers committed the offense by using a motor vehicle as “an object likely to result in serious bodily injury.” But Myers disputes this charge, arguing that the evidence at trial failed to prove that the officer was actually in apprehension of a serious bodily injury and that his movement was instead merely incidental to directing traffic. The officer, however, specifically testified that he believed the vehicle would hit him and that he stepped backward to avoid being struck. Accordingly, the jury was presented with sufficient evidence to find that the officer was in apprehension of serious bodily injury and, thus, to convict Myers on this charge.

2. Myers next challenges the trial court’s denial of his motion in arrest of judgment as to both the aggravated-assault count and the count of fleeing and attempting to elude police, arguing that they were improperly and incompletely alleged.

As to the aggravated-assault count, Myers takes issue with the indictment’s failure to allege the manner in which the motor vehicle was used as a deadly weapon because motor vehicles are not, per se, deadly weapons. As to the charge of fleeing and attempting to elude, Myers argues that the indictment failed to allege every material element of the offense by omitting the audible-and-visual-signals element. However, the trial court denied Myers’s motion because it was filed over five years after judgment was entered, which Myers does not dispute was untimely because a motion in arrest of judgment “must be made during the term at which the judgment was obtained.” And because Myers’s motion was untimely, it is not subject to appellate review. Accordingly, the trial court did not err in denying Myers’s motion in arrest of judgment.

Decided September 14, 2011

Cook & Connelly, Rex B. Abernathy, Steven A. Miller, for appellant.

Leigh E. Patterson, District Attorney, John A. Tully, Assistant District Attorney, for appellee.

3. Finally, Myers contends that the State improperly, consistently, and deliberately placed his character at issue through references to his status as a fugitive. We disagree.

The State presented testimony of various law enforcement officials who explained that Myers was wanted by the United States Marshal Service on the day in question and that he was known to be driving a green Chevrolet Tahoe. This information was relevant to prove that Myers had a motive for fleeing from and eluding police. And “[e]vidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” The evidence of Myers’s fugitive status was, therefore, relevant and admissible.

Accordingly, for all the foregoing reasons, we affirm Myers’s convictions.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        See OCGA § 16-5-21 (a) (2), (c).

        See OCGA § 40-6-395 (a).

        See OCGA § 16-10-24 (b).

       Myers was charged with two counts of aggravated assault — one alleging aggravated assault in general and another alleging aggravated assault against a peace officer. He was found guilty on both counts; however, the counts were then merged at sentencing.

        Powell, 310 Ga. App. at 144.

        Id. (footnote omitted).

        See OCGA § 16-5-21 (a) (2) (“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury!.]”); see also OCGA § 16-5-20 (a) (l)-(2) (“A person commits the offense of simple assault when he or she either . . . [a]ttempts to commit a violent injury to the person of another; or. . . [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.”).

        See Watson v. State, 301 Ga. App. 824, 826 (689 SE2d 104) (2009) (holding that there was sufficient evidence of aggravated assault when defendant threw a glass bowl at his manager and “the manager’s act of raising her hand protectively showed apprehension of violent injury”); Williams v. State, 270 Ga. App. 371, 371 (1) (606 SE2d 594) (2004) (“There was evidence to support the jury’s verdict that Williams committed aggravated assault when he accelerated toward the police officers, putting them in reasonable apprehension of immediate injury.” (citations omitted)); Richardson v. State, 261 Ga. App. 55, 56 (581 SE2d 694) (2003) (holding that there was sufficient evidence of aggravated assault when the defendant fired shots at a moving vehicle and the passenger testified that he “leaned to the side” to get away from shots and that he was scared).

        See Watson, 301 Ga. App. at 825-26 (“[T]he State was only required to show an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof.” (citation and punctuation omitted)).

        See Blalock v. State, 165 Ga. App. 269, 269 (299 SE2d 753) (1983) (“An automobile is not per se a deadly weapon, but may become one depending upon the manner and means of the vehicle’s use.” (citations omitted)).

        See OCGA § 40-6-395 (a) (“It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.”).

       OCGA § 17-9-61 (b).

        See Dasher v. State, 285 Ga. 308, 310 (2) (676 SE2d 181) (2009) (“[W]e cannot address the motion in arrest of judgment because it was not timely filed.” (citation omitted)); May v. State, 179 Ga. App. 736, 737 (2) (348 SE2d61) (1986) (holding that when judgment was entered in April term of court and attack on indictment was made in July term, the defendant’s motion “was untimely and not subject to appellate review”); see also Thompson v. State, 286 Ga. 889, 890 (2) (692 SE2d 379) (2010).

        See Lacey v. State, 253 Ga. 711, 711 (324 SE2d 471) (1985) (holding that trial court did not err in denying motion in arrest of judgment filed three years after judgment rendered). Although Myers urges this Court to do so, we will not apply the plain-error doctrine here because that doctrine is “limited to capital cases and to criminal cases in which the trial judge allegedly intimates an opinion of the defendant’s guilt, in violation of OCGA § 17-8-57.” Jarrett v. State, 299 Ga. App. 525, 527 (1) n.3 (683 SE2d 116) (2009) (citation omitted) (declining to apply plain-error doctrine to defendant’s post-judgment attack of indictment); see also Cochran v. State, 277 Ga. App. 251, 255 (2) (626 SE2d 217) (2006) (declining to apply plain-error doctrine to situation that was neither a capital case nor an opinion by the judge as to the defendant’s guilt). But see Collier v. State, 288 Ga. 756, 759-66 (707 SE2d 102) (2011) (Nahmias, J., concurring specially) (discussing application of plain-error doctrine to review of jury charges).

       The jury was not told why Myers was a fugitive or what charges he faced.

        Cf. Brown v. State, 268 Ga. 354, 359 (6) (490 SE2d 75) (1997) (“The fugitive information was central to motive and it is not grounds for reversal that this relevant information may have incidentally placed [the defendants’] character in issue.” (citation omitted)).

        Johnson v. State, 260 Ga. 457, 457 (2) (396 SE2d 888) (1990) (citation omitted); see also Sterling v. State, 267 Ga. 209, 211 (4) (477 SE2d 807) (1996) (same).


author: McFadden, Judge.

text:
    A11A1439.
    HUBBARD v. THE STATE.
    (716 SE2d 777)
   McFadden, Judge.

After a bench trial, Seneca Hubbard was convicted of possession of cocaine and loitering. He appeals, challenging the denial of his motion to suppress based on the absence of probable cause to arrest and the sufficiency of the evidence as to the loitering conviction. Because the record reveals that there was probable cause for Hubbard’s arrest and that there is enough evidence from which a rational trier of fact could have found Hubbard guilty beyond a reasonable doubt of loitering, we affirm.

1. On appellate review of a criminal conviction, the evidence is viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence. Daniels v. State, 298 Ga. App. 736 (681 SE2d 642) (2009). This court does not weigh the evidence or judge the credibility of witnesses, but determines only if the evidence was sufficient for a rational trier of fact to have found the appellant guilty of the offense charged beyond a reasonable doubt. Id.

So viewed, the evidence shows that on November 28, 2009, Kimber’Lee Dawes and Elle Wallace left Dawes’s apartment to go to a club with friends. As they pulled out of the apartment complex parking lot, they saw a man, later identified as Hubbard, sitting on the steps in the complex’s common area with a bottle of liquor. When Dawes and Wallace returned to the complex at approximately 4:00 in the morning of the following day, they saw that Hubbard was still on the steps. As the women got out of their car, Hubbard, who appeared to be intoxicated and smelled of alcohol, approached them, blocking their access to the stairs leading to Dawes’s apartment. Frightened, Dawes and Wallace got back in the car, locked the doors and began to drive away. As they did so, Hubbard followed them on foot, talking loudly and tapping on the car window.

The women called 911 to report the incident to police. A short time later, two officers arrived at the scene and found Hubbard still in the parking lot area. The officers observed that Hubbard appeared intoxicated, noting that he had a large bottle of liquor that was nearly empty and a can of beer, smelled of alcohol, had slurred speech and used profanity as they spoke with him. When the officers asked Hubbard what he was doing at that location, he told them that he lived in apartment 603. The officers then took Hubbard to apartment 603 and knocked on the door. Gregory Parker, who lives in the apartment, told the officers that Hubbard was a friend of his brother, but that he did not and never had lived there. The officers then placed Hubbard under arrest, and during a search incident to the arrest, found two plastic bags containing cocaine in his pants pocket.

“A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” OCGA § 16-11-36 (a). Under the circumstances of this case, including Hubbard’s presence for many hours on the steps of an apartment complex where he did not live, apparent intoxication, and harassment of two women returning to the complex at four in the morning, there was sufficient evidence from which a rational trier of fact could have found him guilty beyond a reasonable doubt of loitering. See Blair v. State, 216 Ga. App. 545, 547 (2) (455 SE2d 97) (1995); McFarren v. State, 210 Ga. App. 889, 890-891 (1) (437 SE2d 869) (1993).

Decided September 14, 2011.

Sharon L. Hopkins, for appellant.

Garry T. Moss, District Attorney, Shannon G. Wallace, Cliff Head, Assistant District Attorneys, for appellee.

2. Hubbard argues that the officers did not have probable cause to arrest him, and therefore all evidence seized incident to his arrest should have been suppressed. The argument is without merit.

Whether the arrest was constitutionally valid depends upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the person suspected had committed or was committing an offense.

(Citation and punctuation omitted.) Brown v. State, 307 Ga. App. 797, 802-803 (2) (706 SE2d 170) (2011). As recounted above in Division 1, at the time of the arrest, the officers knew that at 4:00 in the morning Hubbard was intoxicated in the common area of an apartment complex, that he had untruthfully claimed to live in an apartment where he had never resided, and that two women had been unable to get out of their car and enter their apartment because of Hubbard’s behavior. Given these circumstances, the officers had probable cause to suspect Hubbard of criminal conduct, including public drunkenness, OCGA § 16-11-41, and loitering, OCGA § 16-11-36. Accordingly, “[t]he trial court’s findings concerning the existence of probable cause were not clearly erroneous, and [Hubbard’s] motion to suppress was properly denied.” (Citation omitted.) Brown, supra at 803 (2).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: BARNES, Presiding Judge.

text:
    A11A1238.
    U. S. LAWNS, INC. v. CUTTING EDGE LANDSCAPING, LLC.
    (716 SE2d 779)
   BARNES, Presiding Judge.

U. S. Lawns, Inc. commenced this action seeking common law and contractual indemnification from Cutting Edge Landscaping, LLC. The trial court denied summary judgment to U. S. Lawns but granted it to Cutting Edge on the indemnification claims. The question on appeal is whether the trial court erred in holding that Cutting Edge was not required to indemnify U. S. Lawns for a settlement that U. S. Lawns voluntarily paid to a tort victim in a prior lawsuit, given that U. S. Lawns entered into the settlement only after it failed to answer the tort victim’s complaint and had gone into default. For the reasons discussed below, we conclude that the trial court committed no error.

When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. To prevail at summary judgment, 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.

(Footnotes omitted.) Smith v. Gordon, 266 Ga. App. 814 (1) (598 SE2d 92) (2004). See OCGA § 9-11-56 (c).

So viewed, the evidence showed that U. S. Lawns contracted to provide landscaping services to Bank of America in Macon, Georgia. U. S. Lawns then subcontracted its landscaping duties to Cutting Edge. The subcontract contained an indemnification provision stating in relevant part:

Subcontractor [Cutting Edge] indemnifies and holds Contractor [U. S. Lawns] harmless from and against any and all claims, demands, or actions made by any person or entity whether valid or not, arising in whole or in part, out of the performance by Subcontractor, including, without limitation, its employees, agents, and fees, [sic] incurred by Contractor in defending against ... or dealing with any such claims, demands, or actions.
Subcontractor specifically obligates itself to Contractor in the following respects (and this Subcontract is made upon such express condition) to wit:
Subcontractor shall protect, hold free and harmless, defend and indemnify Contractor and Owner [Bank of America] (including their officers, agents and employees) from all liability, penalties, costs, losses, damages, expenses, causes of action, judgments or other claims resulting from injury to or death sustained by any person (including Subcontractor’s employees) or damage to property of any kind, which injury, death or damage arises out of or is in any way connected with Subcontractor’s performance of work under this Subcontract.
Subcontractor’s aforesaid indemnity and same harmless obligation shall apply to any act or omission, willful misconduct or negligent conduct, whether active or passive, on the part of Subcontractor (or its agents, sub-contractors or employees), and shall apply regardless of any active and/or passive negligent act or omission of Contractor or Owner or their agents or employees; however, such obligation shall not apply to claims arising from the sole negligence or willful misconduct of [Cjontractor or Owner or for defects in design furnished by Owner.

In July 2007, Gloria Freeman filed a negligence suit against several defendants, including Bank of America, U. S. Lawns, and Cutting Edge, alleging that she injured herself in July 2005 when she stepped in a hole on the premises of the bank. U. S. Lawns was served with the complaint and summons on September 19, 2007, but failed to file an answer and went into default. See OCGA § 9-11-55. Subsequently, on January 24, 2008, U. S. Lawns filed a motion to open the default in the Freeman action. The trial court denied the motion, finding that although U. S. Lawns had set up a meritorious defense to the tort action, it had failed to exercise due diligence and had no reasonable explanation for its failure to timely answer the complaint. After the trial court denied the motion to open the default, U. S. Lawns and Bank of America negotiated a settlement with Freeman, who dismissed her claims against them with prejudice in March 2009.

In September 2009, U. S. Lawns brought the present complaint seeking common law and contractual indemnification from Cutting Edge for the settlement it paid to Freeman, plus costs and attorney fees incurred in that case. U. S. Lawns moved for summary judgment on the issue of liability, contending that Cutting Edge was liable for indemnity as a matter of law under common law principles and the terms of the subcontract between the parties. Cutting Edge cross-moved for summary judgment, contending that indemnity was not available because the settlement paid by U. S. Lawns arose from its failure to answer the complaint and assert a meritorious defense in the Freeman action. Following a hearing, the trial court denied summary judgment to U. S. Lawns and granted it to Cutting Edge, resulting in this appeal.

1. In several related enumerations of error, U. S. Lawns contends that the trial court erred in denying its motion for summary judgment and granting Cutting Edge’s cross-motion for summary judgment on its claim for common law indemnification. The trial court determined that the uncontroverted evidence showed that U. S. Lawns had a meritorious defense available in the Freeman action but failed to assert it, thereby precluding common law indemnification as a matter of law. We agree with the trial court.

The duty to indemnify may arise by operation of law, independently of contract. If a person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action for indemnity against the person whose wrong has thus been imputed to him.

(Punctuation and footnotes omitted.) Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga. App. 553, 557 (2) (583 SE2d 220) (2003). See also Auto-Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 363 (1) (556 SE2d 465) (2001). Generally, the fact that an indemnitee has settled or compromised the underlying tort action brought by the injured party does not bar the indemnitee from pursuing a claim for indemnification or contribution from a third-party indemnitor. See OCGA § 51-12-32; Auto-Owners Ins. Co., 252 Ga. App. at 364 (2). Significantly, however, if the indemnitee who settled or compromised the underlying tort action “had a defense available which would have defeated the action but failed to assert it,” no indemnification or contribution can be recovered. Emergency Professionals of Atlanta, P.C. v. Watson, 288 Ga. App. 473, 475 (1) (654 SE2d 434) (2007). See GAF Corp. v. Tolar Constr. Co., 246 Ga. 411, 412 (271 SE2d 811) (1980); City of Albany v. Pippin, 269 Ga. App. 22, 26-27 (602 SE2d 911) (2004); Foster v. Nix, 173 Ga. App. 720, 727 (1) (c) (327 SE2d 833) (1985). The defense available to the indemnitee in the underlying tort action could have been a legal one, such as a statute of limitation defense, see GAF Corp., 246 Ga. at 411-412, or a factual one, such as a defense that the evidence failed to establish causation. See Pippin, 269 Ga. App. at 26-27.

At the summary judgment stage, the relevant question is whether the evidence demands a finding that the indemnitee had a defense to the underlying tort action that would have defeated liability. See Foster, 173 Ga. App. at 727 (1) (c) (indemnification claim properly submitted to trier of fact where there was conflicting evidence over whether the indemnitee had an available defense that would have defeated the underlying tort claim). If the uncontro-verted evidence of record demonstrates that the indemnitee had such a defense but failed to assert it, the third-party indemnitor is entitled to summary judgment as a matter of law on the claim for indemnification. See Emergency Professionals of Atlanta, P.C., 288 Ga. App. at 475-476 (1). The burden is on the indemnitee to come forward with evidence reflecting that he or she could have been held liable in the underlying tort action had the case not been settled. See Pippin, 269 Ga. App. at 25 (burden is on indemnitee to “prove his own liability where that liability has not been established by a judgment”) (citation, punctuation and emphasis omitted).

Here, the uncontroverted evidence showed that U. S. Lawns had a defense available which would have defeated the Freeman action but failed to assert it. In her complaint in the underlying tort suit, Freeman generally alleged that she “was seriously injured as a result of the defendants[’] negligence when she stepped in a hole on the [bank’s] premises.” In her interrogatory responses, Freeman clarified that “[t]he hole was located between the ATM and the parking lot, on the curb.” However, the “Specifications for Landscape Maintenance Services” found in U. S. Lawns’ landscaping contract with the bank reflected that the repair of holes on the curb did not fall within the responsibilities of U. S. Lawns or its subcontractors. U. S. Lawns’ representative likewise testified that maintenance of the curb, sidewalk, and parking lot area of the bank, other than the disposal of lawn debris and trash that may have collected there, was not part of U. S. Lawns or Cutting Edge’s contractual duties. Nor is there any evidence in the record indicating that the hole was caused by U. S. Lawns or Cutting Edge.

“The threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care.” City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861) (1993). And a negligence action cannot be maintained if the evidence undisputedly shows that the defendant does not owe the plaintiff a legal duty. Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 118 (5) (537 SE2d 345) (2000). Based upon the uncon-tradicted evidence presented here, U. S. Lawns could have successfully defended itself in the Freeman action on the ground that neither it nor its subcontractor, Cutting Edge, had any legal duty to repair the hole on the curb where Freeman was injured.

U. S. Lawns contends, however, that even if it had a meritorious defense available in the Freeman action, its failure to assert that defense was at least partially the fault of Cutting Edge. According to U. S. Lawns, Cutting Edge had a contractual duty to defend it in the Freeman action and thus was responsible for filing a timely answer on its behalf. As such, U. S. Lawns maintains that its default and resulting settlement with Freeman were consequences of Cutting Edge’s negligence, and that, as a result, it should still be able to pursue common law indemnification.

We are unpersuaded. There is no competent evidence indicating that U. S. Lawns notified Cutting Edge before its answer was due that it had been served with the Freeman complaint or that it expected Cutting Edge to file an answer on its behalf; thus, the failure to file a timely answer was solely the fault of U. S. Lawns. While the subcontract between U. S. Lawns and Cutting Edge did not contain an express notice requirement, “[a]n implied term in an agreement exists where it is reasonable and necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they deemed it unnecessary to state.” Fisher v. Toombs County Nursing Home, 223 Ga. App. 842, 845 (2) (479 SE2d 180) (1996) (per curiam). Furthermore, “[fin Georgia, every contract imposes upon each party a duty of good faith and fair dealing in the performance of their respective duties and obligations.” (Punctuation and footnote omitted.) TechBios, Inc. v. Champagne, 301 Ga. App. 592, 595 (1) (c) (688 SE2d 378) (2009). “This implied duty requires both parties to a contract to perform their promises and provide such cooperation as is required for the other party’s performance.” (Punctuation and footnote omitted.) Physician Specialists in Anesthesia, PC. v. MacNeill, 246 Ga. App. 398, 407 (5) (539 SE2d 216) (2000).

Based upon these principles, we conclude that Cutting Edge’s contractual duty to defend U. S. Lawns carried with it an implied duty for U. S. Lawns to timely notify Cutting Edge when it had been served with a complaint that fell within the indemnification provision and expected a response to the complaint to be filed on its behalf. See Townsend v. Lipman, 277 Ga. App. 326, 328 (1) (626 SE2d 538) (2006) (implying duty to notify client of settlement offer); Fisher, 223 Ga. App. at 845 (2) (implying notice requirement in contract); Ellis v. Brookwood Park Venture, 161 Ga. App. 242, 243-244 (288 SE2d 308) (1982) (implying duty to provide notice of intent to renew lease). Here, the only competent evidence of record showed that U. S. Lawns had no communications with Cutting Edge regarding the Freeman complaint until December 2007, long after its answer was due. Thus, contrary to U. S. Lawns’ contention, its default and subsequent settlement with Freeman were not the fault of Cutting Edge, which never received timely notice that U. S. Lawns had been served with a complaint by Freeman or that Cutting Edge was expected to answer the complaint on its behalf.

For these reasons, we conclude that despite having a meritorious defense available in the Freeman action, U. S. Lawns failed to assert it by reason of its default and resulting settlement of the negligence claims. Under these circumstances, U. S. Lawns is barred as a matter of law from pursuing its common law indemnification claim against Cutting Edge. See GAF Corp., 246 Ga. at 412; Emergency Professionals of Atlanta, P.C., 288 Ga. App. at 475 (1); Pippin, 269 Ga. App. at 26-27; Foster, 173 Ga. App. at 727 (1) (c). The trial court therefore committed no error in denying summary judgment to U. S. Lawns and granting it to Cutting Edge on the common law indemnification claim.

2. U. S. Lawns also contends in several related enumerations that the trial court erred in denying its motion for summary judgment and granting Cutting Edge’s cross-motion for summary judgment on its claim for contractual indemnification. Again, we disagree.

The subcontract required indemnification for any claim that arose in whole or in part out of Cutting Edge’s performance. We addressed a similar contractual provision in Emergency Professionals of Atlanta, P.C., 288 Ga. App. at 476-477 (2). In that case, we held that where a defendant goes into default and by reason of that default fails to assert a defense that would have defeated the lawsuit, the liability occasioned by the default does not “arise out of” and is not related to the subcontractor’s performance, but, instead, arises from the defendant’s own conduct in allowing the default and failing to assert the meritorious defense. Id.

For the reasons discussed in Division 1, U. S. Lawns went into default in the Freeman action and by reason of that default failed to assert a defense that would have defeated the lawsuit. U. S. Lawns, moreover, was solely responsible for the default. Thus, as in Emergency Professionals of Atlanta, P.C., 288 Ga. App. at 476-477 (2), the liability occasioned by the default did not “arise out of” Cutting Edge’s performance, but, instead, arose solely from U. S. Lawns’ own conduct in allowing the default and failing to assert the meritorious defense. It follows that U. S. Lawns’ contractual indemnification claim failed as a matter of law, and the trial court committed no error in denying summary judgment to U. S. Lawns and granting it to Cutting Edge on that claim.

Decided September 15, 2011.

Hawkins, Parnell, Thackston & Young, Matthew F. Barr, William M. Davis, for appellant.

Bullard, Garcia & Wangerin, Kevin A. Wangerin, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       U. S. Lawns contends that the trial court erred in considering the interrogatory responses because they were not answered under oath by Freeman in accordance with OCGA § 9-11-33 (a) (2). See Gregory v. King Plumbing, 127 Ga. App. 512 (1) (a) (194 SE2d 271) (1972). But the parties stipulated during the OCGA § 9-11-30 (b) (6) deposition of U. S. Lawns’ representative that any filings or pleadings from the Freeman action submitted by the current parties on their cross-motions for summary judgment were admissible without further authentication and could be used in the present case. In light of this stipulation, the interrogatory responses could be used in evidence without the formality of the deponent’s signature under oath. See Woodson v. Burton, 241 Ga. 130, 131 (1) (243 SE2d 885) (1978).

       U. S. Lawns relies upon the affidavit of its litigation claims specialist in an effort to establish that it communicated with Cutting Edge about the Freeman complaint in October 2007. But the paragraph of the affidavit addressing those communications relied upon hearsay statements of other persons, and U. S. Lawns does not contend that the testimony was admissible under any exception to the hearsay rule. Accordingly, the hearsay testimony contained in the affidavit was inadmissible and had no probative value for purposes of summary judgment. See White Missionary Baptist Church v. Trustees of First Baptist Church of White, Ga., 268 Ga. 668, 669 (1) (492 SE2d 661) (1997).


text:
    A11A1463. A11A1464, A11A1465.
    IN THE Interest OF D. W. et al., children. WHITEHEAD et al. v. MYERS et al. (two cases).
    (716 SE2d 785)
   BARNES, Presiding Judge.

These three companion appeals involve a custody dispute between the biological parents of the minor children D. W. and L. W. and the maternal grandparents. At the time of the dispute, the children, both of whom have special needs and are developmentally delayed, were in the temporary custody of the grandparents because the Department of Family and Children Services (“DFCS”) had removed them from the parents’ home. For the reasons discussed below, we affirm the superior court’s decision to award permanent custody of the children to the grandparents. We likewise affirm the juvenile court’s decision to deny the parents’ motion for reunification with their children.

When reviewing child custody decisions, we view the evidence in the light most favorable to upholding the trial court’s order. Mitcham v. Spry, 300 Ga. App. 386 (685 SE2d 374) (2009). So viewed, the evidence showed that D. W, a male child, was born on June 22, 2004, and L. W, a female child, was born on January 6, 2006. The biological parents’ involvement with DFCS began in the summer of 2007 when L. W, who was approximately 17 months old, was admitted to Scottish Rite Hospital, where she tested positive for salmonella and was diagnosed with failure to thrive. At the time of her admission, L. W. was in a severe lethargic state, “couldn’t hold her head up even much to cry,” was dehydrated, feverish, and had a dilated rectum with “string-mucus-looking stuff coming out of it.” L. W. had a severe diaper rash “like skin was coming loose from her bottom,” her ribs were visible, and her stomach was slightly bloated. Additionally, L. W was not walking or talking, was not passing urine, and was not having normal bowel movements. Despite these signs of distress which had been present for over a week, L. W. was taken to the hospital only at the initiative of the grandmother; the parents thought that she simply had “a little bit of a bug or something” and had not sought medical treatment.

As a result of her condition, L. W. received intravenous feeding and was hospitalized for a week. Because L. W clearly exhibited signs of medical neglect, one of the medical providers contacted Paulding County DFCS, which removed the children from the parents’ care and placed them with the maternal grandparents in July 2007. The deprivation case was then transferred to Carroll County, as this was the home county of the parents at the time. Carroll County DFCS developed a family safety plan requiring the parents, among other things, to meet the medical and developmental needs of their children.

When DFCS became involved with the children, the older child D. W., who was then three years old, was unable to communicate verbally. In the fall of 2007, at the grandparents’ initiative, the Paulding County School System evaluated D. W. through an “Arena Assessment,” a comprehensive evaluation of his cognitive, speech, and motor functioning. Based upon the evaluation, D. W. was diagnosed with significant developmental delay and a speech-language impairment. Among other things, D. W. could not understand or follow simple verbal directions such as “clap your hands,” could not initiate conversation, had a low vocabulary, and could not identify pictures of common objects. In light of the information obtained from D. W’s Arena Assessment, the school system developed an Individual Education Program (“I. E. P”) for him that charted goals and objectives for his development, and D. W. was assigned to a Head Start special needs program for the 2007-2008 school year.

Beginning in August 2008, after the parents attended parenting classes and received instruction from a “family service worker,” DFCS placed D. W back with his parents on a trial basis. Although D. W had an I. E. P in place and had been enrolled in a Head Start special needs program in the 2007-2008 school year in Paulding County, the parents enrolled D. W in the Carroll County School System for the 2008-2009 school year, told the school prekindergarten resource coordinator that he did not have any developmental delays or an I. E. E, and requested that he be placed in a mainstream pre-kindergarten classroom. Despite the parents’ statements to the resource coordinator, D. W.’s teachers recognized that he had significant developmental delays and eventually learned from the grandparents of the existing 2007 I. E. E reflecting his special needs.

During this same period, D. W. was injured twice while in his parents’ care. Both injuries occurred when the mother was watching D. W. while the father was away at work. On the first occasion, D. W fell against a table and “ended up with a gash in his back,” and on the second occasion, teachers noticed that D. W. had a ligature mark around his neck. The parents offered no explanation for how D. W sustained these injuries.

In light of the problems that had arisen, DFCS again removed D. W from the parents’ care in October 2008 and placed him back with the maternal grandparents. The grandparents re-enrolled D. W in the Faulding County School System, where he began attending a special needs pre-kindergarten program under the I. E. E that had been developed for him.

By the fall of 2008, DFCS also had become concerned that L. W might suffer from autism. For example, L. W, who was then two years old, could not communicate, exhibited repetitive behaviors, such as twisting and hand flapping, would not respond to her name, and had difficulty eating, even when spoon-fed baby food. Several care providers recommended that an appointment be scheduled with the Marcus Autism Center to have L. W screened for autism. The father repeatedly claimed that he was attempting to have an appointment scheduled for L. W at the center but maintained that the center kept rescheduling it. Yet, when the grandfather drove to the center to learn why L. W.’s appointment purportedly had been rescheduled several times, the center had no file on her. At that point, the grandparents immediately took steps to have L. W screened at the center.

Following these incidents, Carroll County DFCS filed a deprivation petition alleging that the parents could not provide adequate supervision or care for their children. The juvenile court adjudicated the children deprived, finding that “the children cannot be adequately and safely protected at home [and] the mother and father cannot meet the . . . special needs of the children.” The court awarded temporary custody of the children to the maternal grandparents, with the deprivation order set to expire in February 2011.

Since the time of the deprivation order, the children have remained in the custody of the grandparents. While in her grandparents’ care and at their initiative, L. W. has been treated at the feeding disorder clinic at the Marcus Autism Center, and she has been involved in a special education program at the local elementary school under an I. E. E developed to address her special needs. According to the licensed psychologist who worked with L. W at the feeding disorder clinic and who was admitted as an expert in autism and feeding disorders, L. W. is in the moderate to severe range of the autism spectrum, exhibiting impairments in expressive communication and receptive comprehension, as well as fine motor deficits. L. W. does not communicate verbally, does not respond to direction, cannot feed herself with utensils, does not make eye contact, does not engage interactively with caregivers, and is not toilet trained. She also engages in repetitive behaviors, including jumping up and down and flapping and raising her hands, will not sit in a chair without someone “right with her,” and will open doors and run off if not constantly supervised. According to the licensed psychologist, individuals such as L. W who are in the moderate to severe range of the autism spectrum require adult supervision and assistance in “every aspect” of their daily lives.

While in his grandparents’ care, D. W also has continued to receive assistance at the local elementary school in accordance with his I. E. E The special education teachers who have worked with D. W testified that he began with significant developmental delay and speech-language problems but has progressed over time based upon the therapy and assistance he has received. D. W. now attends school in a mainstream first grade classroom, but he requires the continued assistance of a special education aide. He also continues to have several challenging behavioral issues, including the fact that he is “constantly questioning and demanding” and is “constantly bouncing.”

The parents have continued to have visits with their children while they have been in the grandparents’ care, but only in a supervised setting. However, during these visits, and while under her parents’ purported supervision, L. W. has been observed running into a wall, climbing on a table, putting small objects in her mouth, and escaping from the visitation area. As a result, the visitation supervisors often had to intervene. One supervisor observed that L. W. “is constantly in motion and neither parent seems to keep up with her.” During one visit, L. W. skinned her knee and both elbows after the parents let her run down a driveway, and during another visit, the parents lost L. W’s special orthopaedic shoes and returned her to the grandparents barefoot. Additionally, a supervisor testified that the father simply mimics L. W.’s guttural noises “over and over and over” during visits. With regard to D. W, the parents were observed permitting him to run around inside with an open umbrella during one visit, and a supervisor testified that the mother often appears overwhelmed and frustrated by his high energy level.

In 2010, with the parents’ consent, the deprivation case was transferred back to Paulding County, where the grandparents lived. In March 2010, the biological parents filed a motion for reunification in the Juvenile Court of Paulding County, alleging that they had completed all goals of their case plan and seeking to have their children returned to their custody. In May 2010, the grandparents filed a petition for permanent custody in the Superior Court of Paulding County, seeking permanent, sole physical and legal custody of the children.

Pursuant to OCGA § 15-11-30.1 (b), the superior court transferred the grandparents’ petition for permanent custody to the juvenile court. The juvenile court then heard both the parents’ motion for reunification and the grandparents’ petition for permanent custody in an evidentiary hearing conducted over three days in August 2010.

At the three-day hearing, the juvenile court heard from multiple witnesses who testified to the events as set out above, including the special education teachers and therapists who have worked with the children and the visitation supervisors who have overseen the parental visits. Among other things, two visitation supervisors and a therapist who counseled the parents also testified that the parents have stated that they do not think that L. W has autism and believe that her delays are caused by “separation trauma” and by how the grandparents are raising and caring for her.

The mother testified at the hearing as well. She related that she and her husband now live in South Carolina and that she is alone each day from 8:00 p.m. until 8:00 a.m. while her husband works night shift, after which he returns home to sleep. According to the mother, she would be watching the children alone during the day if she and the father regained custody. She conceded that she was “not sure” how she would be able to care for both children by herself while her husband was away at work or sleeping in preparation for work.

The mother further testified she has never been shown any documentation reflecting that L. W. is autistic and that, as a result, she would want L. W fully re-evaluated if the children were returned to her. With regard to D. W, the mother testified that she was not aware that he has any special needs, although “he might be a little behind a bit.” However, the mother admitted that she had never met or directly communicated with any of L. W.’s doctors to discuss her diagnosis and had never met with the children’s special education teachers or therapists to learn about their developmental issues.

The father likewise took the stand. He testified that he does not know if L. W has autism, that he believes that she might be able to outgrow her condition, and that he believes that the grandparents have caused L. W’s condition due to a lack of sufficient interaction with her. As a result, the father stated that he would want L. W completely re-evaluated if he regained custody. He further testified that he does not know if D. W. needs an I. E. E, and when asked whether he believes that there is anything wrong with D. W.’s development, he responded only that D. W “might be suffering a little bit from the stress that’s been generated ... by this entire situation.” The father conceded that he has not spoken directly with the children’s physicians, therapists, or teachers about their developmental issues.

The grandmother, a former teacher in Paulding County, also testified at the hearing. She testified that both she and her husband are now retired, and that she generally supervises L. W. while her husband supervises D. W when the children are at home with them. The grandmother further testified about the various therapies and programs she had obtained for the children to address their special needs, including Babies Can’t Wait, occupational therapy, speech therapy, and feeding therapy at the Marcus Autism Center for L. W, and Head Start, speech therapy, and special education services for D. W Other care providers confirmed that the grandparents were actively involved in the children’s care and treatment.

The grandmother also testified that her daughter, the children’s mother, had confided in her that “she did not know what she would do” if she regained custody and had to take care of the children. When asked about what the father had verbalized to her about the children’s special needs, the grandmother responded, “He doesn’t see anything the matter. I mentioned to him before any of this ever came about that we thought that the kids had delays and . . . weren’t meeting their maturity mileposts, and he didn’t see a problem with it.”

Additionally, the guardian ad litem for the children testified at the hearing. She stated that the grandparents were very dedicated to the children, were able to handle them very well, and had a home suitable for them to live in. In contrast, she testified that while the parents clearly loved their children, she had significant doubts as to whether they could care for the children in an unsupervised setting “for even an afternoon” in light of her observation of a supervised visitation between the parents and children. A therapist who had conducted sessions with the parents similarly opined that she would not be comfortable with the mother being left alone with or attempting to take care of two special needs children.

After hearing from all of the witnesses, the juvenile court entered a 35-page order in September 2010 containing detailed findings of fact and conclusions of law. The juvenile court found that there was clear and convincing evidence that the parents were not fit to care for the children due to their lack of understanding of the children’s special needs and their inability to meet those needs. For the same reasons, the juvenile court found that parental custody would harm the children. In addition, the juvenile court found that the grandparents had rebutted the presumption in favor of the parents and that an award of custody to the grandparents would best promote the children’s health, welfare, and happiness. Accordingly, the juvenile court denied the parents’ motion for reunification.

With regard to the grandparents’ motion for permanent custody, the juvenile court recommended that it be granted, but transferred the permanent custody matter back to the superior court “to determine whether to adopt the findings of the [jluvenile court” and for entry of a “final order” on the disposition of custody. See OCGA § 15-11-30.1 (b); Uniform Juvenile Court Rule 5.2.

After receiving the juvenile court’s recommendations, the superior court entered an order in October 2010 granting the grandparents’ petition for permanent custody. The superior court stated that it was adopting the juvenile court’s findings of fact; ordered the parents to pay monthly child support; and granted the parents supervised visitation with the children on a weekly basis. In a subsequent order entered in November 2010, the superior court reiterated that it was incorporating by reference the juvenile court’s September 2010 order as its own.

1. The parents contend that the superior court erred by adopting the juvenile court’s recommendations and entering an order that granted permanent custody of the children to the grandparents and only limited visitation to them. We disagree.

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

(Citations and punctuation omitted.) Galtieri v. O’Dell, 295 Ga. App. 797, 798 (673 SE2d 300) (2009). See Clark v. Wade, 273 Ga. 587, 589-599 (II)-(V) (544 SE2d 99) (2001) (plurality opinion); Burke v. King, 254 Ga. App. 351, 352-353 (562 SE2d 271) (2002).

The grandparents clearly met their burden in this case. There was evidence presented at the hearing, as previously discussed, reflecting that L. W is in the moderate to severe range of the autism spectrum, exhibiting severe impairments that require her to be constantly supervised and assisted throughout the day. There also was evidence that D. W continues to suffer from developmental and speech-language impairments and has behavioral problems that can make him difficult to manage. Thus, the evidence, when construed in the grandparents’ favor, amply demonstrated that both children have special needs that can only be addressed by a highly attentive primary caregiver.

At the same time, there was evidence from which the superior court could find that the parents have consistently failed to attend to their children’s special needs and physical well-being. At the time of their initial removal from the parents’ home, L. W. was physically emaciated and infected with salmonella, and D. W was severely developmental^ delayed. Nevertheless, the parents had not obtained treatment or assistance for their children at that point. Later, when D. W. was returned to the parents on a trial basis, he was physically injured under their care, and the parents simply ignored his special needs when enrolling him in school that fall. Furthermore, even during continued supervised visitations with their children, the parents failed to adequately supervise them, leading to L. W being physically injured on several separate occasions and to D. W engaging in dangerous behavior.

Additionally, there was evidence, including the parents’ own testimony, reflecting that they have consistently downplayed and ignored the severity of their children’s special needs. In this regard, both parents indicated that they were unwilling to accept at this point that L. W has autism, despite her thorough evaluation by the Marcus Autism Center, and both minimized the significance of D. W.’s developmental delays and speech-language impairment. Moreover, there was evidence that the parents had made no real effort to become fully informed about their children’s conditions by communicating with the physicians, therapists, and teachers who have worked with and treated them over the past several years.

Furthermore, the guardian ad litem for the children and the therapist who had conducted sessions with the parents communicated their grave concerns about the parents being able to take care of the children on their own. Indeed, the mother herself communicated to the grandmother her own doubts about handling the children alone during the day.

In light of this record, the superior court was authorized to find that there was clear and convincing evidence that parental custody would harm the children, thereby overcoming the presumption that it would be in the best interest of the children to award custody to their parents. In turn, the superior court was authorized to find that an award of custody to the grandparents would best promote the children’s health, welfare, and happiness, given the evidence that the grandparents had served as the children’s primary caregivers for several years, were fully cognizant of the children’s special needs, were actively involved in securing services and therapies for the children and charting their progress, and were in a position due to their retirement to carefully monitor the children on a daily basis.

Accordingly, we conclude that the superior court did not err in granting permanent custody to the grandparents with limited visitation to the parents. See Clark, 273 Ga. at 598-599 (IV) (noting that in considering the issues of harm and custody, courts should consider several factors, including whether the children “have unique medical or psychological needs that one party is better able to meet”); Triplett v. Elder, 234 Ga. 243, 244 (215 SE2d 247) (1975) (taking into account that younger child was mentally retarded and enrolled in a special needs educational program in denying custody to biological mother); Williams v. Ferrell, 231 Ga. 470 (202 SE2d 427) (1973) (taking into account that child suffered from acute leukemia and was currently receiving good medical treatment in denying custody to biological mother). While the parents presented evidence aimed at showing that they were fully prepared and competent to handle their children’s special needs, it was for the superior court, not this court, to resolve the conflicts in the testimony. See Haskell v. Haskell, 286 Ga. 112 (1) (686 SE2d 102) (2009) (“It is the duty of the trial judge to resolve the conflicts in the evidence.”) (citation and punctuation omitted).

Decided September 15, 2011.

Jana L. Evans, for appellants.

Diane M. Sternlieb, for appellees.

2. The parents further contend that the juvenile court erred in recommending to the superior court that permanent custody of the children be granted to the grandparents. However, once the superior court adopted the juvenile court’s findings of fact and custody recommendations as its own, the juvenile court’s interim order was rendered moot and will not be considered separately on appeal. See Flowers v. Robinson, 157 Ga. App. 471, 472 (1) (a) (278 SE2d 38) (1981).

3. The parents further contend that the juvenile court erred in denying their motion for reunification with their children in the deprivation case. We are unpersuaded.

Regardless of nomenclature, the [parents’] motion for the return of custody of [their children] sought to modify or vacate the unexpired deprivation order based upon an alleged change in circumstances. Under OCGA § 15-11-40 (b), “(a)n order of the (juvenile) court may ... be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child.” The burden is on the movant to prove by a preponderance of the evidence that due to changed circumstances, it was in the best interests of the child that the requested modification or vacation of the prior order be granted. We review a juvenile court’s ruling on whether the movant met his or her burden only for an abuse of discretion. There can be no abuse of discretion if there was any evidence to support the ruling of the juvenile court.

(Citations and punctuation omitted.) In the Interest of J. N. F., 306 Ga. App. 313, 315 (701 SE2d 925) (2010). Here, based upon the same evidence discussed in Division 1, the juvenile court did not abuse its discretion in denying the parents’ motion.

Judgments affirmed.

Adams and Blackwell, JJ., concur.

       OCGA § 15-11-30.1 (b) provides in part:
      Other courts, in handling divorce, alimony, habeas corpus, or other cases involving the custody of a child or children, may transfer the question of the determination of custody, support, or custody and support to the juvenile court for investigation and a report back to the superior court or for investigation and determination. . . .

       While the father made the general claim that none of the teachers or other providers would talk to him because he did not have custody of his children, he was unable to name any specific individuals who said that to him. Indeed, several care providers testified that they had not been contacted by the parents but would have been willing to speak with them. Moreover, the father conceded that he never raised this issue with the grandparents or inquired from his children’s guardian ad litem, his counsel, or the juvenile court in the deprivation case about speaking with his children’s teachers or other providers.


author: MCFADDEN, Judge.

text:
    A11A1489.
    PAGGETT v. THE KROGER COMPANY.
    (716 SE2d 792)
   MCFADDEN, Judge.

On September 11, 2009, Glenn Paggett slipped and fell while getting out of his vehicle at a gas station owned by The Kroger Company. Paggett brought an action for negligence against Kroger. The trial court granted Kroger’s motion for summary judgment, concluding that there was no evidence of a dangerous condition at the gas station and determining that Paggett was not entitled to a spoliation presumption based on Kroger’s inability to produce a surveillance videorecording of the gas station on the day of the fall. Finding no error in the trial court’s ruling, we affirm.

1. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Hutto v. CACV of Colorado, LLC, 308 Ga. App. 469 (707 SE2d 872) (2011). In premises liability cases, summary judgment is granted only when the evidence is plain, palpable, and undisputed. Dickerson v. Guest Svcs. Co. &c., 282 Ga. 771-772 (653 SE2d 699) (2007). We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant. Hutto, supra.

So viewed, the evidence shows that it had rained on the day of the fall, but at the time of the fall the rain had stopped. Paggett, accompanied by his wife, pulled next to a pump at the gas station. He did not see any liquid on the pavement. As he got out of the vehicle, however, his “left leg hit some kind of foreign substance or something and it slipped out from under [him],” causing him to fall to the ground. He deposed: “[W]hen I slipped in it, I felt kind of wet, you know, behind and . . . the back of my head, but I didn’t really examine what it [was]. All I know, whatever it [was] was slippery.” After the fall, Paggett’s clothing was wet. He did not determine the nature of the substance that had made his clothing wet, and neither he nor his wife inspected the ground to determine what had caused his fall. A Kroger manager called to the scene shortly after the fall, however, deposed that Paggett had fallen in rainwater.

The threshold question in a slip and fall case is whether a dangerous condition existed. Drew v. Istar Financial, 291 Ga. App. 323, 325 (1) (661 SE2d 686) (2008).

In premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor, because the true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitee to an unreasonable risk of harm.

(Citations and punctuation omitted; emphasis in original.) Id. at 324-325. A slippery condition on an outdoor surface that is caused solely by rainwater presents no unreasonable risk of harm. See, e.g., Dickerson, supra at 772; Emory Univ. v. Smith, 260 Ga. App. 900, 901 (581 SE2d 405) (2003); Cohen v. Target Corp., 256 Ga. App. 91, 93 (567 SE2d 733) (2002). “It is common knowledge that water accumulates on the ground on rainy days, and the risk of harm imposed by this accumulation is not unreasonable but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate.” (Citation and punctuation omitted.) Dickerson, supra.

There is no dispute that it had been raining on the day of Paggett’s fall, and although he deposed that the rain had ceased and the ground was no longer wet, he also deposed that he slipped and fell in a substance that made his clothing wet. The only record evidence regarding that substance was the deposition testimony of the Kroger unit manager, who identified it to be rainwater, and the deposition testimony of Paggett, who did not inspect the substance and could not speak to its nature.

Through the unit manager’s deposition testimony that Paggett slipped in rainwater, Kroger discharged its summary judgment burden, thereby requiring Paggett to point to specific evidence giving rise to a triable issue to avoid summary judgment. See Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). Paggett, however, failed to present any evidence that he was exposed to a condition presenting an unreasonable risk of harm. He hypothesizes that the substance in which he slipped was something other than rainwater, pointing to the unit manager’s deposition testimony that sometimes other liquids collected on the pavement near the gas pumps (such as drinks spilled by customers, fluids leaked from vehicles, or gas that had overflowed from a pump). But unlike in Williams v. EMRO Marketing Co., 229 Ga. App. 468, 470 (494 SE2d 218) (1997) (physical precedent only), cited by Paggett, there was no evidence, direct or circumstantial, that the substance in which he slipped was one of those other liquids. Paggett’s conjecture that the substance might have been something other than rainwater does not establish a genuine issue of material fact on the existence of a dangerous condition. See Mansell v. Starr Enterprises, 256 Ga. App. 257, 259 (568 SE2d 145) (2002).

Paggett argues that there is a factual question as to whether Kroger maintained reasonable inspection procedures at the gas station. Assuming without deciding that Paggett is correct, this does not require a different result in light of the lack of a genuine issue of material fact on the threshold question of the existence of a dangerous condition at the gas station. “Without evidence of the existence of a dangerous condition, there can be no evidence that the defendant had any knowledge of the danger, and therefore no recovery for the plaintiff.” (Citation omitted.) Metts v. Wal-Mart Stores, 269 Ga. App. 366, 367 (604 SE2d 235) (2004). The trial court did not err in granting summary judgment to Kroger. See Drew, supra at 325 (1); Ford v. Bank of America Corp., 277 Ga. App. 708, 709-710 (627 SE2d 376) (2006).

2. Paggett contends that he was entitled to a spoliation presumption that a surveillance videorecording of the gas station, which was made on the day of his fall but which Kroger did not preserve, would have been harmful to Kroger. See Baxley v. Hakiel Indus., 282 Ga. 312, 313 (647 SE2d 29) (2007) (proof of spoliation raises rebuttable presumption against spoliator that evidence favored spoliator’s opponent). “[S]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation and punctuation omitted; emphasis supplied.) Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009).

But notice of potential liability is not the same as notice of potential litigation. To meet the standard for proving spoliation, the injured party must show that the alleged tort-feasor was put on notice that the party was contemplating litigation. The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.

(Citations and punctuation omitted; emphasis in original.) Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 796-797 (1) (697 SE2d 888) (2010). The trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse. Kitchens v. Brusman, 303 Ga. App. 703, 705 (1) (694 SE2d 667) (2010).

The trial court found that Kroger did not have notice that Paggett was contemplating litigation when the videorecording was destroyed. There is no evidence in the record of exactly when that occurred. Paggett contends, however, that Kroger was put on sufficient notice to require the preservation of the footage as early as the day of the fall. He points to evidence that, immediately after the fall, the Kroger unit manager filled out a standardized “Slip/Fall Incident Report” that contained the following pre-printed language: “This report is being prepared in anticipation of litigation under the direction of legal counsel.” But the unit manager’s deposition testimony reflects that, at the time he filled out the Incident Report, he did not believe that Paggett’s fall might lead to litigation. He did not complete the entire report form or conduct the investigation directed therein, because he thought certain portions of the form were not relevant to Paggett’s fall, given that Paggett had slipped in rainwater. The unit manager also did not review the videorecording. And the unit manager deposed that he would not knowingly discard any information that might be relevant to a potential lawsuit.

Decided September 15, 2011.

Broadnax & Martin, Shone L. Broadnax, for appellant.

Douglas A. Wilde, for appellee.

Under these circumstances, we cannot say that the trial court abused its discretion in finding that Paggett had not demonstrated that he was entitled to a spoliation presumption. See Lustre-Diaz v. Etheridge, 309 Ga. App. 104, 106-107 (709 SE2d 309) (2011) (affirming trial court’s denial of spoliation remedies where, based on arguments made and evidence presented, court made explicit factual finding that spoliation had not occurred, and appellate record did not provide basis for reversing that factual finding). Cases cited by Paggett on this point are inapposite because the defendants in those cases took more action to investigate potential litigation than incompletely filling out a standardized slip and fall incident form. See Baxley, supra at 313 (bar manager, upon learning that regular customer had been involved in vehicle accident after leaving the bar, questioned staff about what customer had been served); J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 252-253 (427 SE2d 499) (1992) (defendant retained services of Equifax to investigate truck accident prior to destroying daily log of driver involved in accident).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: MlKELL, Judge.

text:
    A11A0899.
    BOLLER v. ROBERT W. WOODRUFF ARTS CENTER, INC.
    (716 SE2d 713)
   MlKELL, Judge.

Laura Boiler, as the widow of Thomas Anthony Boiler and as the administrator of his estate, brought this wrongful death action against Robert W Woodruff Arts Center, Inc. (the “Arts Center”). The trial court granted summary judgment in favor of the Arts Center, and Boiler appeals. Finding no error, we affirm.

We review the grant or denial of summary judgment de novo, applying the following standard:

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. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Viewed in the proper light, the record reflects that on the evening of July 24, 2004, Boiler and her husband went to the Chastain Park Amphitheatre to attend an outdoor concert sponsored by the Atlanta Symphony Orchestra (the “ASO”), a division of the Arts Center. The Arts Center was the organizer of the concert and had custody and control of the Amphitheatre on that evening. The ASO had contracted with an ambulance service to have a stand-by ambulance at its “events,” but unfortunately, no ambulance was on duty at this particular concert. At some time between 8:00 and 8:10 p.m., Boiler’s husband dropped her off at the main gate of the Amphitheatre and proceeded to park his car. As he walked through the parking area on his way back to the Amphitheatre, he collapsed, suffering cardiac arrest. A parking attendant heard him fall and immediately summoned a police officer, Sergeant Patterson, who was directing traffic nearby. Patterson could get no response from him, so she called Lieutenant Mathis, an on-site officer, who told her that no on-site ambulance was available and that she should call 911, which she proceeded to do. According to Patterson’s statement, she was first made aware of Mr. Boiler’s collapse at 8:20 p.m.; she called 911 at around 8:35 p.m.; and a Fulton County Emergency Medical Services ambulance arrived at approximately 8:45 p.m. Mr. Boiler was transported to Piedmont Hospital and efforts were made to resuscitate him, but he was pronounced dead approximately nine minutes after he arrived at the hospital.

Laura Boiler sued the Arts Center for her husband’s wrongful death. Boiler claimed that the Arts Center breached its duty of care to her husband, an invitee, by its failure to have on site either an ambulance or an officer operating an automatic external defibrillator device (“AED”) and by its failure to maintain a safety and security plan to govern the actions of employees and security personnel during a medical emergency. She claimed that this failure resulted in a delay in medical treatment for her husband’s condition, and she submitted the testimony of a medical expert that if her husband had received medical care in under six minutes, whether from an on-site ambulance or from an officer operating an AED, he would not have died. Boiler further claimed that the Arts Center breached its contractual duty as she and her husband were intended third-party beneficiaries of an agreement between Chastain Ventures (of which the Arts Center was a member) and the City of Atlanta, which required that the Venture provide for professional management of the venue.

In granting the Arts Center’s motion for summary judgment, the trial court concluded that the Arts Center had no duty to provide an on-site ambulance or AED; that the existence of a crowd, by itself, did not constitute a hazard or dangerous condition; and that the Arts Center did not have superior knowledge of any dangerous condition. The court concluded that the Arts Center acted with reasonable and ordinary care to procure medical care for Mr. Boiler almost immediately after he fell and his condition was confirmed by Patterson. The court rejected Boiler’s argument that the Arts Center voluntarily undertook to provide on-site medical care by reason of the contract calling for a stand-by ambulance, reasoning that imposing liability on this ground would conflict with the “Good Samaritan” statute, OCGA § 51-1-29. The trial court did not address Boiler’s claim that the Arts Center was liable under a contract of which the Boilers were third-party beneficiaries.

1. Boiler contends that the trial court erred in ruling that the Arts Center had no duty to provide an on-site ambulance or AED to her husband and that it acted with reasonable care in obtaining emergency medical assistance when he became ill. We disagree.

“The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiffs injury; and damages.” Thus, “[t]he threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff.” This issue is a question of law.

(a) A legal duty sufficient to support liability in negligence is “either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of our appellate courts.” Boiler has pointed to no statutory enactment, and we have found none, which would impose a duty on the Arts Center to provide emergency medical services to the patrons of its concerts. Nor does any common law principle impose such a duty. On the contrary, the long-established general rule is that “[a] person is under no duty to rescue another from a situation of peril which the former has not caused,” even when the peril is foreseeable. We conclude that this case is controlled by our decision in Rasnick v. Krishna Hospitality, where we held that the defendant innkeeper had no legal duty to comply with a wife’s requests that it attempt a rescue of its guest, her husband, from his medical peril. In that case, the defendant did not create the decedent’s underlying medical condition. Similarly, in the case at bar, Boiler does not allege that the Arts Center or the concert it sponsored caused her husband’s sudden attack of cardiac arrest.

The trial court correctly ruled that the Arts Center owed no duty to provide emergency medical services to the decedent in this case, and therefore no material question of fact remains for determination by the jury.

(b) Boiler objects to the trial court’s statement that the Arts Center acted with reasonable and ordinary care to procure medical care for Mr. Boiler once his condition became apparent. We note that once the Arts Center staff elected to provide first aid to Mr. Boiler, their actions fell under the scope of the “Good Samaritan” statute, which provides:

Any person . . . who in good faith renders emergency care at the scene of an accident or emergency to the victim . . . thereof without making any charge therefor shall not be liable for any civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person.

In her brief, Boiler has pointed to no evidence that the actions taken by the Arts Center staff in giving first aid were negligent in any way. Instead, Boiler merely reiterates her argument that the Arts Center failed to take certain other actions which might have rescued Mr. Boiler from the medical emergency he suffered. We rejected this argument in Division 1 (a) above.

2. Boiler contends that the trial court erred in failing to rule that the Arts Center had a duty to mitigate the hazard created by its concert, and that the Arts Center had superior knowledge of a dangerous condition. An occupier of land owes its invitees a duty to exercise ordinary care in keeping the premises and approaches safe and also a duty to keep invitees safe from dangerous conditions of which the occupier has superior knowledge. Boiler asserts that the concert created a foreseeable hazard to patrons, who might possibly need ambulances; and that access to an off-site ambulance might be delayed due to traffic surrounding the venue. She adduced evidence from Arts Center employees indicating that on-site access to emergency medical services is “prudent” and its lack is a “hazard”; and she points out that the ASO had contracted for ambulances to be on-site for “events.” However, none of this evidence is relevant or specific to the night in question. Boiler has not adduced any evidence that the traffic on the night in question was hazardous or that the ambulance which answered the 911 call was delayed on that night by the concert crowd or traffic. Further, as we determined in Division 1 (a) above, the Arts Center had no duty as a matter of law to provide an on-site ambulance or AED at the concert.

3. Boiler asserts that summary judgment should not have been granted to the Arts Center because the decedent was a third-party beneficiary of the Renewal Agreement, which provided for the lease of the Amphitheatre by the City of Atlanta to Chastain Ventures. Boiler relies on the Renewed Agreement’s requirement that the Arts Center “manage and operate the [Amphitheatre] in a manner consistent with the management principles of professional entertainment facilities and in accordance with existing City and State of Georgia policies, procedures, laws and ordinances.” This enumeration fails.

“In order for a third party to have standing to enforce a contract, it must clearly appear from the contract that it was intended for his or her benefit. The mere fact that the third party would benefit from performance of the agreement is not alone sufficient.” It is not necessary for the third-party beneficiary to be specifically named in the contract, but “the contracting parties’ intention to benefit the third party must be shown on the face of the contract.” Thus, in personal injury cases, an injured party may not recover as a third-party beneficiary for the defendant’s failure to perform a duty imposed by a contract, “unless it is apparent from the language of the agreement that the contracting parties intended to confer a direct benefit upon the plaintiff to protect him from physical injury.” Where a contract is silent as to its intent to confer a benefit upon a plaintiff, the plaintiff may not recover as a third-party beneficiary to the contract.

In the case at bar, Chastain Ventures’ lease with the City of Atlanta contains no language reflecting an intent to confer a direct benefit on any patrons or attendees of the concerts held at the Amphitheatre. Consequently, the evidence does not support a finding that the decedent was a third-party beneficiary of Chastain Ventures’ Renewal Agreement with the City of Atlanta.

Decided August 16, 2011

Reconsideration denied September 16, 2011

Bondurant, Mixson & Elmore, Alison B. Prout, Michael B. Terry, for appellant.

Casey Gilson, Robert P. White, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

         McCullough v. Reyes, 287 Ga. App. 483, 484 (651 SE2d 810) (2007).

       (Punctuation omitted.) Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000), citing Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citation omitted.) Seymour Elec. &c. Svc. v. Statom, 309 Ga. App. 677, 679 (710 SE2d 874) (2011). Accord McQuaig v. Tarrant, 269 Ga. App. 236, 237 (603 SE2d 751) (2004).

       (Footnote omitted.) McGarity v. Hart Elec. Membership Corp., 307 Ga. App. 739, 742 (1) (706 SE2d 676) (2011).

         Barrett v. Ga. Dept. of Transp., 304 Ga. App. 667, 669 (1) (697 SE2d 217) (2010).

       (Citation and punctuation omitted.) First Fed. Sav. Bank &c. v. Fretthold, 195 Ga. App. 482, 484 (394 SE2d 128) (1990).

       (Citation and punctuation omitted.) City of Douglasville v. Queen, 270 Ga. 770, 773 (3) (514 SE2d 195) (1999).

       Id.

       302 Ga. App. 260 (690 SE2d 670) (2010).

       Id. at 266 (1).

       Id. at 263 (1).

       See id.

       See Adler’s Package Shop v. Parker, 190 Ga. App. 68, 72 (1) (b) (378 SE2d 323) (1989) (whole court) (proprietor has duty of ordinary care in protecting invitees from foreseeable dangerous conduct of third parties, but no duty to protect invitee from assault arising from assailant’s personal malice toward victim). Compare Alexander v. Harnick, 142 Ga. App. 816, 817 (3) (237 SE2d 221) (1977) (Court recognized general principle that one is under no duty to rescue another from peril not of one’s own causing, but reversed summary judgment for defendant where defendant caused plaintiffs peril by failing to comply with boat safety statute requiring readily accessible life preservers).

       (Emphasis supplied.) OCGA § 51-1-29. See Reid v. Midwest Transp., 270 Ga. App. 557, 561 (2) (607 SE2d 170) (2004) (under OCGA § 51-1-29, defendant truck driver who parked his truck to render aid to accident victims on highway was not liable to plaintiff passengers in vehicle which ran into his truck).

       OCGA § 51-3-1 (“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe”).

        Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

       This issue was raised below, but the trial court did not address this argument in its ruling. Nonetheless, “[a] grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” (Punctuation and footnote omitted.) Barrett, supra.

       (Citation and punctuation omitted; emphasis in original.) Donnalley v. Sterling, 274 Ga. App. 683, 685 (1) (618 SE2d 639) (2005). Accord Brown v. All-Tech Investment Group, 265 Ga. App. 889, 897 (2) (a) (i) (595 SE2d 517) (2004).

       (Citations and punctuation omitted.) Donnalley, supra. Accord Brown, supra.

       (Citation and punctuation omitted.) Donnalley, supra. Accord Brown, supra.

        Brown, supra (invitees, injured in criminal attack on building, were not third-party beneficiaries of contract between premises owner and company providing security to premises, even though invitees could expect to be benefitted by performance of security contract); Donnalley, supra at 686 (1) (camper injured in swimming accident was not a third-party beneficiary to rental contract which provided that defendant would provide “qualified personnel” to patrol water front areas).

       See Brown, supra.