author: Self, Judge.

text:
    A17A0608.
    GRAYBILL v. ATTAWAY CONSTRUCTION & ASSOCIATES, LLC.
    (802 SE2d 91)
   Self, Judge.

In this contract dispute, homeowner Brannon Graybill (“Graybill”) sued contractor Attaway Construction & Associates, LLC (“Attaway”) for damages related to work Attaway performed during the remodeling of Graybill’s residence. Following a bench trial, the Superior Court of Columbia County entered judgment in Attaway’s favor, including an award of attorney fees pursuant to OCGA § 13-6-11. Graybill appeals and, for the reasons that follow, we affirm in part and reverse in part.

Evidence adduced at trial revealed that Graybill and Attaway entered into an October 1, 2014 contract for residential remodeling work at Graybill’s residence. The contract listed the cost of the work as $175,000; Graybill testified that the $175,000 represented a comprehensive fixed price for the project, while Attaway asserted that the project would cost “approximately $225,000 on a cost plus 12% basis.” Attaway also stated that Graybill executed the contract to obtain a loan for $175,000 and that he would pay any difference between the contract price and the total cost out of pocket.

Based upon the parties’ agreement, drawings were prepared and subsequently modified on multiple occasions. During the course of the remodeling project, Graybill and his wife chose more expensive and higher-quality materials than were originally budgeted. As the cost of the project escalated, and Attaway sought additional payments, the parties’ relationship soured. Ultimately, Graybill paid Attaway $213,979 and paid $52,231.73 directly to some of Attaway’s subcontractors. However, Graybill refused to pay two of Attaway’s applications for payment totaling $43,540.05, after which Attaway issued a July 8, 2015 “Suspension of Construction for Non-Payment.” On August 21,2015, Graybill sued Attaway for breach of contract and negligent construction, and Attaway counterclaimed for, among other things, breach of contract, quantum meruit, fraud, and attorney fees pursuant to OCGA § 13-6-11. Graybill waived his right to a jury trial and, following a bench trial, the trial court entered judgment in favor of Attaway for $43,540.05 in damages plus interest and $57,156.62 in attorney fees and expenses. This appeal followed.

1. In his first enumeration of error, Graybill contends the trial court erroneously refused his “right to present oral closing argument” and his right to a concluding argument. However, we need not consider Graybill’s enumeration because he waived the alleged error.

Near the conclusion of the bench trial, the trial court asked counsel for both parties, “[d]o y’all want to argue it this afternoon, or what do you want — do you want to submit it, or do you want to send me a brief or what?” Graybill’s counsel responded that he could complete his argument in “ten minutes” and that he had prepared two bench briefs for the trial court, while Attaway’s counsel stated he had not seen the bench briefs and suggested that “each side submit their proposed findings and conclusions of law[;] [tjhat would be our argument.” Graybill’s counsel resisted Attaway’s counsel’s suggestion, saying “I would prefer not to. I’d prefer to argue it, Your Honor.”

What followed was an extended colloquy between counsel and the trial court concerning whether the parties wished to argue the case personally or by post-trial briefing. During that discussion, Graybill’s counsel repeated his desire “to close today” rather than submit briefs in lieu of argument. The trial court responded that it would allow the parties to submit post-trial briefs “and that will stand for your argument, unless ... someone objects,” but added that “if you want to argue, I’ve got all night.” Graybill’s counsel then stated:

[GRAYBILL’S COUNSEL]: Well, we’re — we’re going to do what you tell us to do. What are you telling us? Would you have preferred to do a bench brief?
THE COURT: Without objection, then, what I’m going to ask you to argue — is to argue the case in the way of — of a -
[GRAYBILL’S COUNSEL]: Okay.
THE COURT: — or brief —
[GRAYBILL’S COUNSEL]: Sure.
THE COURT: — and incorporate — and that would incorporate your authority.
[GRAYBILL’S COUNSEL]: May we put a limit on that?
THE COURT: A page limit?
[GRAYBILL’S COUNSEL]: Yes, sir.

However, Graybill’s counsel then said, “Well,... I object then. I want to orally argue the case[,]” to which the trial court replied:

THE COURT: Okay, argue it. That’s fine, we’ll stay and we’ll argue it.
[GRAYBILL’S COUNSEL]: I mean, you know, it’s — that’s what I — that’s what I want to do.
THE COURT: And if you — all right, you argue it, and then if you all — all right, that will be fine. You argue it. I’ll take care of everything after that.
[GRAYBILL’S COUNSEL]: Sure.

Attaway’s counsel then asked to reserve argument in the form of a written brief, which led to additional discussion in view of Graybill’s counsel’s statement that he wanted to waive opening and reserve concluding argument. The trial court ultimately stated:

[I]f either of you wants to argue the case, . . . you have [the] absolute right to do that.... So, if either of you is insisting on oral argument this afternoon, then I am going to allow either or both of you to do that. And I don’t mind, then, giving you five days if you want to brief it after that. That suits me to a tee. That’s fine. So with that advisory, or that communique, . . . [Graybill’s counsel], what do you want to do?

Graybill’s counsel stated, “I want to close it out today I’d like to orally argue briefly. I’m going to keep it very brief.” When Attaway’s counsel elected to forgo an oral argument in lieu of a post-trial brief, Graybill’s counsel again complained that the proposed procedure would give Attaway“the last say in the case...Nevertheless, Graybill’s counsel ultimately stated that, “I’ll put it all in a letter, Judge, if we’re going to do it that way [. . .] But I’m going to put on the record that I object to this.” The discussion concluded with the following exchange:

[GRAYBILL’S COUNSEL]: All right, I’ll do it whatever way you want to, but just, you know, —
THE COURT: All right.
[GRAYBILL’S COUNSEL]: — I —
THE COURT: I’ll get briefs from you then.

One week later, the parties delivered letter briefs to the trial court.

In Wilson v. Wilson, 277 Ga. 801 (596 SE2d 392) (2004), our Supreme Court confirmed that “the right to closing argument exists even in civil, non-jury trials, but may be precluded when no factual issues exist or when the parties waive the opportunity.” (Emphasis supplied.) Id. at 802 (1). See also OCGA § 9-10-186 (plaintiff in civil actions is entitled to opening and concluding arguments). Indeed, the right to argue “may be waived expressly or by conduct.” (Citation and punctuation omitted.) Wilson, 277 Ga. at 803 (1).

In this case, the trial court inquired of counsel for the parties whether they wanted to present an oral closing argument or submit arguments in a post-trial brief. While Graybill’s counsel stated he wanted to present an oral closing argument, Attaway’s counsel suggested submitting a post-trial brief in lieu of a closing argument. This initial disagreement spawned an extended discussion between the trial court and the parties, during which Graybill’s counsel repeated his desire to present an oral closing argument. In fact, during the ongoing discussion, the trial court invited Graybill’s counsel to present oral argument on three occasions. After the trial court’s third invitation, Graybill’s counsel repeated that he wanted to present oral argument but also wanted to submit two bench briefs. Additional discussion ensued, during which Graybill’s counsel stated to the trial court: (1) “we’re going to do what you tell us to do”; (2) “[t]hen I’ll put it in a letter, Judge, if we’re going to do it that way”; and (3) “I’ll do it whatever way you want to. . .

As a result, despite multiple invitations by the trial court, Graybill’s counsel did not present oral argument and cannot now “be heard to complain of error induced by [his] own conduct, nor to complain of errors expressly invited by [him] during the trial of the case.” (Citation and punctuation omitted.) Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 699 (2) (b) (774 SE2d 755) (2015). “[N]o matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” (Citation and punctuation omitted.) Roberts v. First Ga. Community Bank, 335 Ga.App. 228, 230 (1) (779 SE2d 113) (2015). See also Davis v. Phoebe Putney Health Systems, 280 Ga.App. 505, 506-507 (1) (634 SE2d 452) (2006) (“A party cannot participate and acquiesce in a trial court’s procedure and then complain of it.”). Accordingly, we conclude that Graybill waived any error concerning closing arguments since he, despite multiple invitations by the trial court to present an oral closing argument, failed to do so and acquiesced in the trial court’s suggestion to submit closing arguments by brief.

2. In two related enumerations of error, Graybill argues that the trial court’s award of attorney fees to Attaway was improper and that, even if the award was appropriate, Attaway failed to present sufficient evidence to support its request for attorney fees. We agree that the trial court’s award of attorney fees to Attaway pursuant to OCGA § 13-6-11 is not authorized under Georgia law.

Graybill’s complaint alleged causes of action for breach of contract and negligent construction related to Attaway’s remodeling work at Graybill’s residence. In its answer to Graybill’s complaint, Attaway included counterclaims for, among other things, breach of contract, quantum meruit, fraud, and attorney fees pursuant to OCGA § 13-6-11. At the conclusion of its case, Attaway’s counsel offered, “in our place[,]” to state their attorney fees. After extensive discussion of another matter, Attaway’s counsel stated “in our place that we have [. . .] attorneys [sic] fees and expenses of fifty thousand dollars.” Attaway’s counsel added that “[w]e charged hourly rates less than those charged by [Graybill’s] counsel, so we submit that’s a reasonable sum.” Graybill’s counsel did not object to Attaway’s request for attorney fees, but did request “the standard affidavit and backup time sheets so that I can at least see those[.]”

Attached to Attaway’s counsel’s affidavit in support of attorney fees were “time records kept in [counsel’s] firm’s billing system” reflecting work by “lawyers, paralegal, and law clerks. . . The records demonstrated “work on behalf of Attaway Construction in defending against the claim of Brannon Graybill, and in pursuing the Attaway Construction counterclaim. . . Attaway’s counsel averred that the hourly rates shown in the records “are extremely reasonable for the Augusta market” and that the 378.83 hours billed to Attaway “also have been reasonable.” While the time records identified the date of each time entry, the timekeeper’s initials and billing rate, the number of hours worked and billed, and the monetary amount of the task performed, the records contain no description of the task performed or whether the task was related to Attaway’s counterclaims. In response, Graybill argued only that Attaway’s counsel’s attorney fees were “[unreasonable [i]nsofar as the [t]otal [h]ours [s]pent are [e]xcessive.” In its order, the trial court awarded Attaway “the reasonable attorney fees as proven by the affidavit of [Attaway’s] counsel in the amount of $50,000.00.”

(a) Graybill first argues that the trial court erred in awarding Attaway attorney fees because “a plaintiff-in-counterclaim cannot recover those fees when its counterclaim arises out of the same transaction underlying the complaint.” We agree.

“The general rule is that an award of attorney fees and expenses of litigation are not available to the prevailing party unless authorized by statute or contract.” (Citation and punctuation omitted.) Singh v. Sterling United, Inc., 326 Ga. App. 504, 512 (4) (756 SE2d 728) (2014). To that end, OCGA § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

Furthermore, “[t]he award of expenses of litigation under OCGA § 13-6-11 can only be recovered by the plaintiff in an action under the language of the statute; therefore, the defendant and plaintiff-in-counterclaim cannot recover such damages where there is a compulsory counterclaim.” Singh, 326 Ga. App. at 513 (4) (quoting Sanders v. Brown, 257 Ga. App. 566, 570 (c) (571 SE2d 532) (2002)). See also Byers v. McGuire Properties, 285 Ga. 530, 540 (6) (679 SE2d 1) (2009) (plaintiff-in-counterclaim “cannot recover attorney’s fees under OCGA § 13-6-11 unless [it] asserts a counterclaim which is an independent claim that arose separately from or after the plaintiff’s claim”). “Under the Civil Practice Act, a pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” (Punctuation omitted.) Singh, 326 Ga. App. at 513 (4) (citing OCGA § 9-11-13 (a)).

With these principles in mind, we conclude that Attaway’s counterclaims for breach of contract and quantum meruit arising from Attaway’s work at Graybill’s residence, and which formed the basis for the trial court’s award of attorney fees, were “clearly in the nature of . . . compulsory counterclaim[s] and thus fees were not permitted for [those] claim[s] under OCGA § 13-6-11.” Singh, 326 Ga. App. at 513 (4). It follows that the trial court erred in granting Attaway attorney fees based upon its counterclaims and, therefore, we reverse that portion of the trial court’s order awarding Attaway $50,000 in attorney fees. See Byers, 285 Ga. at 540 (6); Singh, 326 Ga. App. at 513 (4).

(b) In view of our holding in Division 2 (a), supra, we need not consider Graybill’s enumeration of error concerning the alleged insufficiency of the proof of Attaway’s attorney fees. See, e.g., Premier Cabinets v. Bulat, 261 Ga. App. 578, 582 (5) (583 SE2d 235) (2003).

3. Next, Graybill asserts that the trial court erred in awarding damages for both of the mutually exclusive remedies of breach of contract and quantum meruit. We do not agree.

In its answer and counterclaim, Attaway included alternate causes of action for breach of contract and quantum meruit. During trial, an Attaway representative testified that it sought $43,540.05 based upon the parties’ contract and Graybill’s failure to satisfy two of Attaway’s applications for payment. Yet in its post-trial brief, Attaway argued that

[w]hether ... the written contract document is binding upon the parties or not, Georgia law dictates that Attaway Construction is entitled to the cost of labor and materials in the amount of $43,540.05 that has been provided and billed to [Graybill], but for which [Graybill] has failed to pay.

The trial court “conclude[d] that [Attaway] is entitled to recover damages from [Graybill] on the theories of breach of contract and in quantum meruit.” Ultimately, without identifying the legal theory supporting the judgment, the trial court ordered that Attaway “shall recover damages on its counterclaim against [Graybilfl in the amount of $43,540.05.”

“It has long been the law in Georgia that although a party may plead in alternative counts, no recovery may be had in quantum meruit when a contract governs all claimed rights and responsibilities of the parties.” Holder Constr. Group v. Ga. Tech Facilities, 282 Ga. App. 796, 801 (4) (640 SE2d 296) (2006) (citing Choate Constr. Co. v. Ideal Electrical Contractors, 246 Ga. App. 626, 630 (4) (541 SE2d 435) (2000)). Similarly, while it is true that “a party may pursue inconsistent remedies, he is not permitted a double recovery of the same damages for the same wrong. He is entitled to only one satisfaction of the same damages[.]” (Citation and punctuation omitted.) Marvin Nix Dev. Co. v. United Community Bank, 302 Ga. App. 566, 568 (692 SE2d 23) (2010). See also Pope v. Professional Funding Corp., 221 Ga. App. 552, 555 (2) (472 SE2d 116) (1996) (“Although [the lender] could maintain its action both on breach of contract and conversion theories, it could not obtain a double recovery and was required to elect its remedy.”). As a result, “while the claimant, or counterclaimant as in this case, is not required to make an election between inconsistent remedies prior to the verdict, he must make, and be given the opportunity to make, an election prior to the formulation and entry of judgment.” UIV Corp. v. Oswald, 139 Ga. App. 697, 699 (229 SE2d 512) (1976). Nevertheless, although an election of remedies should be made before the entry of judgment, “we [will] find no reversible error in the failure to make such an election [where] there was no risk of double recovery” All Risk Ins. Agency v. Belk, 191 Ga. App. 576, 577 (1) (382 SE2d 361) (1989). Compare UIV, 139 Ga. App. at 699.

Here, the trial court “conclude[d] that [Attaway] is entitled to recover damages from [Graybill] on the theories of breach of contract and in quantum meruit[,]” but the trial court’s award of $43,540.05 did not identify which of these two incongruent causes of action supported its award. Irrespective of the support for the trial court’s finding, we conclude that the trial court did not award Attaway a double recovery. During the trial, Attaway claimed damages of $43,540.05 based upon the parties’ contract, while its post-trial brief stated that

[w]hether ... the written contract document is binding upon the parties or not, Georgia law dictates that Attaway Construction is entitled to the cost of labor and materials in the amount of $43,540.05 that has been provided and billed to [Graybill], but for which [Graybill] has failed to pay.

(Emphasis supplied.) In addition, we note that neither Graybill in the present appeal nor Attaway by cross-appeal challenged the trial court’s entry of judgment in the amount of $43,540.05; rather, Gray-bill’s argument focuses upon the trial court’s inconsistent judgment and the alleged need for Attaway to elect a remedy, not upon the fact that a remedy in Attaway’s favor was proper or that the amount of the judgment awarded was not supported by the evidence. To that end, the parties do not cite any evidence to warrant a measure of damages other than $43,540.05. In short, then, regardless of the cause of action, the trial court awarded a single, unchallenged recovery of $43,540.05. Therefore, under the unique circumstances of this case, we conclude that “there was no risk of double recovery” and that an election of remedies was unnecessary. See All Risk, 191 Ga. App. at 577 (1). To hold otherwise would elevate form over substance. Cf. Thomas v. State, 324 Ga. App. 898, 900-901 (752 SE2d 67) (2013) (despite single recovery, “[Graybill] is, in fact, relying simply on the absence of a ‘formal [election of remedies]’ — the elevation of form over substance”).

4. Finally, Graybill contends that the trial court should have referred his post-trial motion to recuse the trial judge to another judge for review because the trial judge failed to disclose a familial relationship with Attaway’s co-counsel. See Uniform Superior Court Rule (USCR) 25.3. We discern no error.

Almost three weeks after the conclusion of the bench trial, and one week after the trial court executed its judgment, Graybill allegedly discovered through “internet research” that the trial judge was related by marriage to Attaway’s co-counsel. Specifically, Graybill alleged that the trial judge’s daughter is married to Attaway’s co-counsel’s brother. Graybill’s sources for the “internet research” included the trial judge’s wife’s Facebook account, which included “links to photographs” of Attaway’s co-counsel’s family, and a birth announcement identifying the trial judge and his wife as the grandparents of their daughter’s newborn son. As a result, Graybill averred that he “believe[d] that [the trial judge] cannot be impartial and that bias and prejudice exists in favor of [Attaway] and against me.” Graybill promptly filed a motion to recuse the trial judge and supported his motion with affidavits. Without referring the motion to recuse to another judge, the trial court denied Graybill’s motion.

While the parties agree that the alleged relationship between the trial judge and Attaway’s co-counsel does not fall within the prohibited degree of consanguinity, see OCGA § 15-1-8 (a) (2), Graybill nevertheless asserts that the familial relationship raises a specter of bias and partiality and that the trial court should have referred the motion to another judge for review following his failure to disclose the familial relationship. We are not persuaded. “In Georgia, both OCGA § 15-1-8 and Canon [2][] of the Georgia Code of Judicial Conduct are applicable when the issue of judicial recusal is considered.” Mayor & Aldermen of the City of Savannah v. Batson-Cook Co., 291 Ga. 114, 115 (728 SE2d 189) (2012). OCGA § 15-1-8 (a) (2015) provided, in relevant part:

No judge or Justice of any court . . . shall:
(1) Sit in any case or proceeding in which he is pecuni-arily interested;
(2) Preside, act, or serve in any case or matter when such judge is related by consanguinity or affinity within the sixth degree ... to any party interested in the result of the case or matter; or
(3) Sit in any case or proceeding in which he has been of counsel, nor in which he has presided in any inferior judicature, when his ruling or decision is the subject of review, without the consent of all parties in interest. . . .

Canon 2.11 (A) states that “[j]udges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned... (Emphasis in original.) “The comprehensive concern for judicial impartiality found in Canon [2.11] provides a broader rule of disqualification than does OCGA § 15-1-8.” (Citations omitted.) Batson-Cook, 291 Ga. at 121 (2) (b) (ii). To that end, Canon 2.11 “is an inclusive catch-all provision for analysis of alleged disqualifying judicial conduct and sets a general standard that the appearance of partiality requires recusal, followed by specific examples of disqualifying conditions.” (Citation and punctuation omitted.) Id. In that regard,

[w]e have construed the phrase “impartiality might reasonably be questioned” to mean whether a fair-minded and impartial person would have a reasonable perception of a judge’s lack of impartiality based upon objective facts set forth in the affidavit or reasonable inferences therefrom.

(Citation omitted.) Id.

Moreover, the alleged bias must be of such a nature and intensity to prevent the complaining party from obtaining a trial uninfluenced by the court’s prejudgment. To warrant disqualification of a trial judge the affidavit supporting the recusal motion must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.

(Citation and punctuation omitted.) Rice v. Cannon, 283 Ga. App. 438, 443 (2) (641 SE2d 562) (2007).

To enforce these provisions, motions to recuse or disqualify judges are governed by USCR 25, which requires motions to recuse be timely filed, in writing, and supported by “accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded.” USCR 25.1.

The affidavit shall clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements, which demonstrate either bias in favor of any adverse party, or prejudice toward the moving party in particular, or a systematic pattern of prejudicial conduct toward persons similarly situated to the moving party, which would influence the judge and impede or prevent impartiality in that action. Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.

USCR 25.2. When presented with a motion to recuse,

the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted.

USCR 25.3. “If all three conditions precedent set forth in USCR 25.3 are not met, the trial judge shall deny the motion on its face as insufficient, and there is no need for the trial judge to assign the motion to another judge to hear.” Gibson v. Decatur Fed. S & L Assn., 235 Ga. App. 160, 166 (3) (508 SE2d 788) (1998).

In this case, we conclude that Graybill’s affidavit was legally insufficient and, as a result, the trial court did not err by denying Graybill’s motion to recuse. The substance of Graybill’s affidavit comes from apparent Facebook posts — which are not part of the record on appeal—showing family photographs and a birth announcement for the trial judge’s grandson. Not only do these facts fail to implicate the prohibited degree of consanguinity, see OCGA § 15-1-8 (a) (2), but we do not find that “a fair-minded and impartial person would have a reasonable perception of a judge’s lack of impartiality based upon objective facts set forth in the affidavit or reasonable inferences therefrom.” Batson-Cook, 291 Ga. at 121 (2) (b) (ii). Nor does “the affidavit supporting [Graybill’s] recusal motion ... give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment.” (Citation and punctuation omitted.) Rice, 283 Ga. App. at 443 (2). At best, Graybill’s motion and the supporting affidavit suggest that the trial court erred by failing to disclose a familial relationship that is not within the prohibited degree of consanguinity This is not sufficient. Accordingly, in view of Gray-bill’s failure to demonstrate that recusal would be warranted by the facts presented in his affidavit if taken as true, we find no error in the trial court’s threshold denial of Graybill’s motion. See Gibson, 235 Ga. App. at 166 (3).

Decided June 19, 2017.

Tisdale Middleton Law Firm, J. Andrew Tisdale, Barry N. Middleton, for appellant.

Hull Barrett, David E. Hudson, George G. Robertson, for appel-lee.

Judgment affirmed in part and reversed in part.

Dillard, P. J., and Ray, J., concur.

       However, Graybill acknowledged that he knew the price would increase based upon changes to the scope of work he requested.

       Attaway later voluntarily dismissed its fraud claim without prejudice.

       We decline Attaway’s veiled invitation to adopt the reasoning of Tri-State Consumer Ins. Co. v. LexisNexis Risk Solutions, 858 FSupp.2d 1359 (N.D.Ga. 2012) criticizing, but ultimately following, Byers. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall bind all other courts as precedents.”).

       While acknowledging the applicability of Byers, Attaway’s sole argument in response to Graybill’s enumeration is that Graybill failed to preserve the issue for appeal by timely objecting to Attaway’s request for attorney fees. However, Graybill’s argument “is that the actual award itself is improper as a matter of law.” First Union Nat. Bank of Ga. v. Big John’s Auto Sales, 203 Ga. App. 797, 799-800 (6) (417 SE2d 416) (1992). In that vein, “[t]he recoverability of damages is dependent upon the applicable law and evidence.” (Punctuation and footnote omitted.) Premier Cabinets v. Bulat, 261 Ga. App. 578, 583 (5) (583 SE2d 235) (2003). And in this case, “the award of attorney fees .. .cannot be upheld as authorized pursuant to OCGA § 13-6-11.” Id. Accordingly, the cases upon which Attaway relies concerning waiver are inapposite. Compare Benchmark Builders v. Schultz, 289 Ga. 329, 330 (1) (711 SE2d 639) (2011) (Court of Appeals erred in relying on waiver to affirm award under OCGA § 13-6-11).

       Similarly, we need not decide whether Attaway “set forth any facts showing that [Graybill has] been stubbornly litigious.” Byers, 285 Ga. at 540 (6).

       Similarly, Attaway argues in its briefing to this Court that “[wjhether [Graybill] is liable under the theory of quantum meruit, breach of contract, or both, the amount of damages owed to [Attaway] is the same.”

       Indeed, Graybill states he “does not challenge the factual findings of the trial court. . . .” And yet, Graybill’s opening brief invites this Court to vacate the trial court’s judgment and “remand the case for Attaway to make [an] election of remedies and a new judgment to be entered thereon[,]” which would give Graybill ‘the right to appeal the new judgment as to the remedy elected.” To the contrary, if, as Graybill appears to suggest, the trial court erred in awarding damages based upon breach of contract or quantum meruit, Graybill was required to enumerate as error any arguments for reversal in the present appeal instead of attempting to procure a proverbial second bite at the appellate apple. In view of Graybill’s failure to enumerate these alleged errors herein, any such error has been waived. See Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999) (“The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors.”); Dewberry v. State, 294 Ga. App. 358, 359 (670 SE2d 150) (2008) (citing Hodgkins v. Marshall, 102 Ga. 191, 199 (29 SE 174) (1897)) (failure to enumerate errors upon a first appeal waives the right to enumerate them later).

       OCGA § 15-1-8 (a) (2) (2015) precluded a judge from presiding over any matter in which the judge was related within the sixth degree of consanguinity “to any party interested in the result of the case. . . .”
      The civil law is computed by counting from one of the persons up to the common ancestor, and then down again to the other person. . . . Under the civil law, the correct method of computation is to count the “steps” or generations from one ancestor to the next counting each “step” or generation as one degree, and not to count each ancestor as a degree.
      (Citations and punctuation omitted.) Cheeks v. State, 234 Ga. App. 446, 449 (3) (507 SE2d 204) (1998). See also Eaton v. Grindle, 236 Ga. 324, 325 (223 SE2d 670) (1976).

       The Code of Judicial Conduct was revised effective January 1, 2016. The provisions of Canon 2.11 were previously contained in Canon 3E (1). See Post v. State, 298 Ga. 241, 244 (1) (779 SE2d 624) (2015).

       Notwithstanding the trial court’s determination “that the motion [to recuse] [was] timely filed],]” this Court is troubled by the timing of Graybill’s motion to recuse, which came on the heels of the trial court’s judgment in Attaway’s favor. Cf. Moran v. State, 293 Ga. App. 279, 280 (1) (a) (666 SE2d 726) (2008) (in context of juror disqualifications pursuant to OCGA § 15-12-135 (a), “[w]here it appears that the party having cause to complain either knew of the relationship, or could have discovered it by the timely exercise of ordinary diligence, and remained silent, that party will be presumed to have waived the disqualification.”) (emphasis supplied); Von Hoff v. Carmichael, 204 Ga. App. 760, 762 (3) (420 SE2d 643) (1992) (party took “chances on a favorable outcome of the trial and only after an adverse verdict was returned did she file a proper motion to recuse[;] [t]his is precisely the type of practice which the timeliness requirement of Rule 25.1 is designed to guard against”). To that end, noticeably absent from Graybill’s affidavit is mention of any investigation of the trial judge’s connections or relationships upon the original assignment of the case to the trial judge. See generally Moran, 293 Ga. App. at 280 (1) (a); Von Hoff, 204 Ga. App. at 762 (3). See also BITT Intl. Co. v. Fletcher, 259 Ga. App. 406, 411 (5) (577 SE2d 276) (2003) (judge’s lack of impartiality “is not based upon the perception of either interested parties or their lawyer-advocates, seeking to judge shop, to gain a trial advantage, or to overturn an unfavorable judgment, because their credibility is suspect from self-interest”) (physical precedent only); Baptiste v. State, 229 Ga. App. 691, 694 (1) (494 SE2d 530) (1997).

       As a result, we need not consider Graybill’s argument that the trial court’s order denying his motion to recuse demonstrated bias. See Post, 298 Ga. at 256-257 (3) (b); Isaacs v. State, 257 Ga. 126, 128 (355 SE2d 644) (1987).


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A15A1281.
    GLISPIE v. THE STATE.
    (801 SE2d 910)
    Decided June 20, 2017.

      Clifford L. Kurlander, for appellant.
   DOYLE, Chief Judge.

In Glispie v. State, the Supreme Court of Georgia affirmed in part and reversed in part this Court’s opinion in Glispie v. Stated. Accordingly, we vacate Division 1 (b) (ii) of our prior opinion, and we adopt the opinion of the Supreme Court in its place. The judgment of the trial court is affirmed.

Judgment affirmed.

Reese and Self, JJ., concur.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

       300 Ga. 128 (793 SE2d 381) (2016).

       335 Ga. App. 177 (779 SE2d 767) (2015).


author: McFADDEN, Presiding Judge.

text:
    A17A0094.
    KENDRICK v. SRA TRACK, INC. et al.
    (801 SE2d 911)
   McFADDEN, Presiding Judge.

Charles Kendrick appeals from the affirmance of a Board of Workers’ Compensation decision denying his claim for benefits. Kendrick argues that the board erred in failing to find that the employer’s defense is time-barred by OCGA § 34-9-221 (h), which requires that notices to controvert be filed “within 60 days of the due date of the first payment of compensation.” But that argument rests on the proposition that a prescription card the employer gave Kendrick constitutes “compensation” under that provision. It does not. Kendrick also argues that the Board erred in finding that his injury did not arise out of and in the course of his employment and in finding that he was not a continuous employee at the time of the injury Because Kendrick was traveling to a motel near the job site when he was injured, those contentions are also without merit. So we affirm.

1. Facts and procedural posture.

On appeal from a workers’ compensation award, we review findings of fact under the “any evidence” standard. McAdoo v. MARTA, 326 Ga. App. 788, 792 (1) (755 SE2d 278) (2014).

In reviewing a workers’ compensation award, this [cjourt must construe the evidence in the light most favorable to the party prevailing before the appellate division. The findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor this [cjourt may substitute itself as a factfinding body in lieu of the State Board.

Bell v. Gilder Timber Co., 337 Ga. App. 47 (785 SE2d 682) (2016) (citation and punctuation omitted).

So viewed, the evidence shows that Charles Kendrick was employed by SRA Track, Inc., to help repair railroad tracks in various states, including Georgia, Alabama, Tennessee, North Carolina and Virginia. At approximately 4:00 p.m. on Sunday, January 13, 2013, Kendrick left his home in Georgia on his motorcycle to drive to a motel in Alabama, where he planned to spend the night before beginning work on an SRA job the next morning. While traveling to the motel, Kendrick was injured in a motorcycle accident. After the accident, Kendrick received a prescription card from SRA’s insurer, which he used through December 2013 to help pay for pain medications.

On January 28, 2014, Kendrick filed a workers’ compensation claim for temporary disability benefits. On March 3, 2014, SRA and its insurer filed a notice to controvert the claim on the ground that the accident did not arise out of and in the course of Kendrick’s employment. A hearing on the claim was held before an administrative law judge (“ALJ”) on July 24, 2015. Thereafter, on September 17, 2015, the ALJ issued an order denying Kendrick’s claim for benefits, finding that the accident did not arise out of and in the course of Kendrick’s employment and that he was not a continuous employee at the time he was injured. Kendrick appealed to the Appellate Division of the State Board of Workers’ Compensation, which adopted the ALJ’s order as its award. Kendrick then appealed to the superior court, which held a hearing but did not enter an order disposing of the appeal within 20 days of the hearing, thereby resulting in the Board’s award being affirmed by operation of law. See OCGA § 34-9-105 (b). Kendrick’s application for discretionary appeal to this court was granted, and this appeal followed.

2. OCGA § 34-9-221 (h).

Kendrick argues that the superior court erred in failing to find that SRA was time-barred by OCGA § 34-9-221 (h) from controverting his claim on the ground that the accident did not arise out of or in the course of his employment. The argument is without merit because that Code section does not apply to the facts of this case.

OCGA § 34-9-221 (h) provides:

Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.

(Emphasis supplied.) Kendrick contends that the prescription card from SRA’s insurer, which he used to pay for medications, constituted compensation under OCGA § 34-9-221 (h). Therefore, he argues, SRA was required to file a notice to controvert the workers’ compensation claim within 60 days of the first payment with that card, but SRA failed to timely file such notice and it was thus barred from controverting the claim on any ground other than change in condition or newly discovered evidence.

However, contrary to Kendrick’s contention, the prescription card used to pay for medications was not compensation under that Code section, which governs only compensation for income benefits, not medical benefits. See generally Jackson v. Ga. Bldg. Auth., 144 Ga. App. 275, 276 (241 SE2d 54) (1977) (in construing another statute, recognizing distinction between income benefits for lost wages and medical benefits in workers’ compensation claims). As our Supreme Court has held, “OCGA § 34-9-221 governs the procedure for employers and insurers to follow in paying income benefits to employees and disputing the employees’ claims.” Meredith v. Atlanta Intermodal Rail Svcs., 274 Ga. 809, 810 (561 SE2d 67) (2002) (emphasis supplied). Indeed, it is apparent from the plain language of OCGA § 34-9-221 that it refers only to compensation for income benefits, while medical benefits are not mentioned anywhere in that Code section. Consistent with that plain language, in a case that turned on the question of what is included in the term “compensation” under OCGA § 34-9-221 (h), this court relied on a prior holding “that the term ‘compensation’ [in that statute] encompasses all of the accrued income benefits[.]” Cartersville Ready Mix Co. v. Hamby, 224 Ga.App. 116, 118 (2) (479 SE2d 767) (1996) (citation, punctuation and emphasis omitted). As our Supreme Court has further explained, “the [S]tate [B]oard [of Workers’ Compensation] has interpreted subsection (h) [of OCGA § 34-9-221] as applying only when income benefits are being paid, and the General Assembly has failed to overturn either the court decisions or agency rules despite frequent amendments to the statute.” Meredith v. Atlanta Intermodal Rail Svcs., supra at 813 (punctuation omitted; emphasis supplied).

In the instant case, SRA did not pay income benefits for lost wages to Kendrick. See OCGA § 34-9-260 (method for computing compensation generally based on average weekly wages). Because the prescription card was not an income benefit, it did not constitute compensation under OCGA § 34-9-221 (h). Accordingly, that Code section does not apply to this case and Kendrick’s misplaced reliance on it provides no basis for reversing the affirmance of the Board’s award.

3. Arising out of and in the course of employment.

Kendrick contends that the superior court erred in affirming by operation of law the Board’s findings that his injury did not arise out of or in the course of his employment. We disagree.

To be compensable under the Workers’ Compensation Act, an employee’s accidental injury must arise both out of and in the course of his or her employment. OCGA § 34-9-1 (4). The term “arising out of” refers to some causal connection between the conditions under which the employee worked and the injury. The words “in the course of” relate to the time, place and circumstances of the accident. An injury arises in the course of certain employment if the employee is engaged in that employment at the time the injury occurs. In general, collisions occurring while employees are traveling to and from work do not arise out of and in the course of employment.

Med. Center v. Hernandez, 319 Ga. App. 335, 336 (1) (734 SE2d 557) (2012) (citations and punctuation omitted).

Here, Kendrick was not yet engaged in his employment at the time of the accident. Rather, it was the day before his job was to begin and he was traveling to a motel near the job site when the accident occurred. “Thus, as found by the ALJ, appellate division and [as affirmed by operation of law in the] superior court, the injuries sustained while [Kendrick was] traveling to work did not arise out of or in the course of [his] employment.” Med. Center v. Hernandez, supra at 336-337 (1).

4. Continuous employment doctrine.

Kendrick claims that his injuries nevertheless are compensable under the continuous employment doctrine. However, that doctrine does not apply in the instant case.

Under Georgia’s doctrine of continuous employment, more commonly known nationally as the traveling employee doctrine, there is broader workers’ compensation coverage afforded an employee who is required by his employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site. Such an employee is, in effect, in continuous employment, day and night, for the purposes of the Workers’ Compensation Act, and activities performed in a reasonable and prudent manner for the health and comfort of the employee, including recreational activities, arise out of and are in the course of the employment.

Decided June 20, 2017.

Pasley & Nuce, Adam R. Nagel, for appellant.

Jones Cork, Rufus D. Sams III, Callie D. Bryan, for appellees.

Swift, Currie, McGhee & Hiers, M. Ann McElroy, Crystal S. McElrath, amici curiae.

Ray Bell Constr. Co. v. King, 281 Ga. 853, 855 (642 SE2d 841) (2007) (citations and punctuation omitted).

In this case, Kendrick was required to lodge and work in Alabama during the work week for the upcoming SRA job that he was traveling to at the time of the accident. “Thus, once [Kendrick] had arrived at the job site and begun [his] duties for the week, barring some deviation for a personal mission wholly foreign to [his] employment, the continuous employment doctrine very well might have been applicable to [him]." Med. Center v. Hernandez, supra at 337 (2). However, having previously returned to his home in Georgia for the weekend, he was not performing work duties or being paid by SRA as he traveled to a motel near the work site.

Thus, at that point, [Kendrick was] off-duty and [not] continuously employed. Any continuous employment coverage for [him] would have [begun] only when [he was] back in the general proximity of the place where [he was] employed and at a time [he was] employed to be in that general proximity As demonstrated by numerous cases, an injury arises out of and in the course of a traveling employee’s employment if he is injured in performing the duties of his employment. Although [Kendrick was traveling to a motel in] the general proximity of the [job] site at the time of the accident, it is undisputed that [he] had not yet arrived at the site and thus had not yet resumed performing the duties of [his] employment.

Med. Center v. Hernandez, supra at 337-338 (2) (citations and punctuation omitted). Under these circumstances, the continuous employee doctrine does not apply, and there was no error in “the board’s determination that the injuries, sustained in an accident while the employee [was] on [his] way to [a motel near his] work, were not compensable.” Id. at 339 (2).

Judgment affirmed.

Branch and Bethel, JJ., concur.

       We note that in the record and briefs the employer is referred to as both SRA Track, Inc., and SRA Track, LLC. In this opinion, we have used the employer name designated on the notice of appeal.


author: BARNES, Presiding Judge.

text:
    A17A0146.
    ROBERTS et al. v. SMITH.
    (801 SE2d 915)
   BARNES, Presiding Judge.

Estelle Roberts and Charlie Smith appeal the trial court’s rulings on cross-motions for summary judgment in this dispute over an arrangement among four siblings to purchase a home for the benefit of one of the siblings. The trial court ruled in favor of Mary Smith, the executor of the estate of Johnnie Smith, who was one of the siblings, on all claims. For reasons that follow, we reverse.

Summary judgment is proper “only if the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” (Punctuation omitted.) Vernon v. Assurance Forensic Accounting, 333 Ga. App. 377, 378 (774 SE2d 197) (2015). On appeal from a grant or denial of summary judgment, we conduct a de novo review, “construing] the evidence most favorably towards the non-moving party, who is given the benefit of all reasonable doubts and possible inferences.” (Citation and punctuation omitted.) Johnson v. Omondi, 294 Ga. 74, 75 (751 SE2d 288) (2013).

The record shows the following undisputed facts. Estelle Roberts, Charlie Smith, Osie Outlaw, and Johnnie Smith, who is now deceased, are siblings. In November 2011, Johnnie purchased a house in Cordele for $84,000 for the use of Osie and her husband. The appellants and Osie verbally agreed to contribute money toward the purchase and maintenance of the house. During their depositions, Estelle testified that “[n]obody had a set amount to pay,” and Charlie explained that each sibling would do “[w]hatever was needed.” When Charlie was asked, “Was there something more detailed about each of your responsibility?” he responded, “No, we are a family So we don’t sit down and say you put this amount, you put this amount. Whatever was needed we did.” The appellants and Osie contributed toward the down payment, and Charlie later made one insurance and one tax payment and bought some doors for the house.

Johnnie was the sole buyer listed on the purchase agreement. He made a cash down payment of $11,136.49 and obtained mortgage financing from Atlanta Postal Credit Union (“APCU”), with which he already had a banking relationship, for the remainder. Johnnie was the only borrower listed on the promissory note and security deed. In January 2012, shortly after the closing, Johnnie executed a warranty deed transferring ownership of the Cordele property to the appellants and himself as joint tenants with rights of survivorship. He did not tell the appellants about this transfer until after the fact.

Johnnie arranged for the monthly mortgage payments to be automatically deducted from an account at APCU that he owned jointly with his wife, Mary. According to the appellants’ affidavits, Johnnie told them that he had set aside enough money in this account to pay the remaining mortgage balance. Neither appellant contributed toward the mortgage payments while Johnnie was alive.

Johnnie died in December 2012, and Mary became the executor of his estate. According to Mary, and not refuted by the appellants, mortgage payments on the Cordele residence continued to be deducted automatically from Johnnie and Mary’s joint APCU account for at least eight months after Johnnie’s death.

In August 2013, Mary asked APCU to close all of Johnnie’s accounts, including the joint account and an individual account that Johnnie owned with a balance of approximately $52,000. That same month, Mary told Estelle that Johnnie’s accounts had been closed, and her lawyer sent the appellants a letter asking them to “take appropriate steps to refinance the mortgage indebtedness on the property and begin to pay the mortgage on the property” The appellants asked APCU for a pay-off amount and other details about the mortgage, but APCU refused to disclose any information to them. They also approached other banks in an effort to refinance the mortgage, but were rebuffed because their names did not appear on the loan documents. Finally, they tried to discuss the mortgage with Mary, but she would not tell them anything. Estelle made mortgage payments directly to APCU for the months of September 2013 through January 2014.

In September 2013, APCU notified Mary by letter that it had closed Johnnie’s joint account at her request and reversed the mortgage payment that had been automatically deducted for that month. APCU also claimed in the letter that the mortgage loan was in default due to the reversed payment and because Johnnie’s January 2012 transfer of the property by warranty deed had violated a provision of the security deed requiring pre-approval from APCU for any transfers. Accordingly, APCU accelerated the loan and demanded full payment within 30 days. Soon thereafter, APCU seized the money in Johnnie’s individual account and applied it toward the mortgage debt, claiming that it had a lien on the individual account under the terms of Johnnie’s membership agreement with APCU. That left an outstanding mortgage balance of $14,661.64. The appellants were unaware of APCU’s actions or communications with Mary.

In January 2014, APCU sent Mary notice that it was initiating foreclosure proceedings on the Cordele property because the mortgage loan remained in default due to lack of payment. After learning of this notice, the appellants retained counsel to stop the foreclosure. The foreclosure did not occur, but the appellants were not told why. In fact, Mary averted the foreclosure by paying off the outstanding mortgage balance herself soon after receiving the foreclosure notice, and in return, APCU assigned the security deed and loan documents to Johnnie’s estate. The appellants were not informed of this transaction.

In February 2014, the appellants filed a petition against Mary, in her capacity as executor of Johnnie’s estate, seeking a judgment declaring the appellants to be the owners of the Cordele property, an order directing Mary to provide documentation for a pay-off amount on the mortgage, an accounting, and damages for emotional distress. Mary answered and asserted counterclaims for judicial foreclosure, implied trust, and liquidated damages based on the appellants’ breach of their alleged agreement to pay off the mortgage. With the trial court’s permission, Mary later added Osie as a third party defendant and asserted those same claims against her.

Mary and the appellants filed cross-motions for summary judgment. Following a hearing, the trial court entered an order granting Mary’s motion and denying the appellants’ motion. The court ruled that the appellants had no claim for failure to provide pay-off information; that they failed to establish a claim for emotional distress; that they breached an agreement to pay the mortgage on the Cordele property and that Mary was entitled to liquidated damages for that breach; that Mary also was entitled to judicial foreclosure and an implied trust on the property; and that the appellants were not entitled to cancellation or satisfaction of the loan documents. The appellants filed this appeal, challenging the trial court’s rulings on the existence of an agreement to pay off the mortgage, implied trust, and satisfaction or cancellation of the loan documents.

1. The appellants contend that the trial court erred by finding that they entered into an enforceable agreement to pay off the mortgage on the Cordele property We agree.

“[T]he first requirement of the law relative to contracts is that there must be a meeting of the minds of the parties[.]” (Citation and punctuation omitted.) Jimenez v. Gilbane Bldg. Co., 303 Ga.App. 125, 129 (693 SE2d 126) (2010). “[A] contract does not exist unless the parties agree on all material terms. A contract cannot be enforced if its terms are incomplete, vague, indefinite, or uncertain.” (Citation and punctuation omitted.) McElvaney v. Roumelco, LLC, 331 Ga. App. 729, 732-733 (1) (771 SE2d 419) (2015). Although “the law leans against the destruction of contracts on the ground of uncertainty,” (citation and punctuation omitted) Vernon v. Assurance Forensic Accounting, 333 Ga. App. 377, 382 (1) (774 SE2d 197) (2015), a contract is not enforceable if “[i]t has not been shown, with any reasonable certainty, what the parties were obligating themselves to do.” Lemming v. Morgan, 228 Ga.App. 763, 765 (1) (492 SE2d 742) (1997).

Mary claims that the appellants’ failure to make continued mortgage payments after Johnnie’s death “is a breach of their agreement with Johnnie, and they owe Johnnie’s estate the entire amount of the balance due on the loan.” Mary fails, however, to show that the appellants entered into any enforceable agreement to pay off the entire mortgage. It is undisputed that the appellants agreed, as Mary puts it, to “help [Johnnie] pay for [the house]But “[n]obody had a set amount to pay”; rather, the siblings worked together as a family to do “[w]hatever was needed.” The appellants and Osie contributed toward the down payment, but it was Johnnie who signed the purchase agreement, procured the mortgage, and arranged for the monthly mortgage payments to be deducted automatically from his bank account. The appellants averred that Johnnie told them he had set aside enough money in that account to cover the remaining mortgage balance. Neither appellant made any mortgage payments, nor any contributions to defray Johnnie’s cost of paying the mortgage, while Johnnie was alive or for the eight months following his death. Ultimately, Estelle made four mortgage payments, but only after Mary told her that Johnnie’s accounts had been closed and Mary’s lawyer asked the appellants to ‘Tegin to pay the mortgage on the property”

This evidence, which Mary has not refuted, does not show that the appellants agreed to be financially responsible for the mortgage payments on the Cordele property In fact, the evidence does not show that the appellants committed to take any specific actions at all. There was no agreement that they would make financial contributions in any particular amount, at any particular time, for any particular obligation (i.e., mortgage payments, taxes, insurance, or maintenance). In short, the siblings’ arrangement was too vague and ill-defined to constitute a legally enforceable contract. Consequently, the trial court erred by ruling that the appellants breached a binding agreement to pay the mortgage on the Cordele property. It follows that the court also erred by ruling that Mary was entitled to liquidated damages for this asserted breach.

2. The appellants contend that the trial court erred by imposing an implied trust on the Cordele property in favor of Johnnie’s estate because there is a legal presumption, which Mary failed to rebut, that Johnnie’s contributions to the property for the benefit of his siblings were gifts that did not grant him or his estate a beneficial interest in the property. Mary asserts that this gift presumption does not apply to the kind of trust she seeks to establish and that, in any event, Johnnie’s contributions were not gifts.

An implied trust may be either a resulting trust or a constructive trust. OCGA § 53-12-2 (5); see also Robertson v. Robertson, 333 Ga. App. 864, 872 (2) (778 SE2d 6) (2015). A resulting trust is defined, in relevant part, as

a trust implied for the benefit of the settlor or the settlor’s successors in interest when it is determined that the settlor did not intend that the holder of the legal title to the trust property also should have the beneficial interest in the property under any of the following circumstances: ... (3) A purchase money resulting trust as defined in subsection (a) of Code Section 53-12-131 is established.

OCGA § 53-12-130. A purchase money resulting trust is a “trust implied for the benefit of the person paying consideration for the transfer to another person of legal title to real or personal property.” OCGA § 53-12-131 (a). The payment of this consideration “shall create a presumption in favor of a resulting trust, but such presumption shall be rebuttable by a preponderance of the evidence.” OCGA § 53-12-131 (b). However, if the person who pays the consideration and the person to whom the property is transferred “are husband and wife, parent and child, or siblings, a gift shall be presumed, but such presumption shall be rebuttable by clear and convincing evidence.” OCGA § 53-12-131 (c); see also Brock v. Brock, 279 Ga. 119, 120 (1) (610 SE2d 29) (2005) (discussing gift presumption). Applying this principle here, the appellants contend that the estate is not entitled to the benefit of a trust because Mary has not rebutted the familial gift presumption.

Mary maintains that she sought a constructive trust, not a resulting trust. A constructive trust “is a trust implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.” OCGA § 53-12-132 (a). “[Sjometimes it is exceedingly difficult to differentiate between the two [types of implied trusts]; but ordinarily distinctions are unnecessary since both are implied trusts and are governed by the same rules.” Hancock v. Hancock, 205 Ga. 684, 689 (1) (54 SE2d 385) (1949). The distinction may be important here, however, as the familial gift presumption appears to apply only to purchase money resulting trusts, not to constructive trusts. Compare OCGA § 53-12-131 (defining purchase money resulting trusts and setting forth familial gift presumption) with OCGA § 53-12-132 (defining constructive trusts without mentioning a familial gift presumption).

In her counterclaim, Mary alleged that “[t]he Estate is entitled to have the Court impose an implied purchase money trust on the Cordele property for the benefit of the Estate.” (Emphasis supplied.) The trial court ruled that Mary was entitled to an “implied trust” for the benefit of the estate, without specifying whether that implied trust was resulting or constructive. And in their appellate briefing, the parties simply assert that the potential trust at issue here falls into the category of their choice, without discussing how the facts of this case fit into the statutory definitions cited above. Even if we assume for purposes of this appeal that Mary’s counterclaim was for a constructive trust, she was not entitled to summary judgment on that claim.

“[A] constructive trust is a remedy created by a court in equity to prevent unjust enrichment. ... As such, it is not an independent cause of action, but a device by which property might be recovered if an unjust enrichment claim were to prevail.” (Citations and punctuation omitted.) Reeves v. Newman, 287 Ga. 317, 319 n. 2 (695 SE2d 626) (2010); see also Ansley v. Raczka-Long, 293 Ga. 138, 141 (3) (744 SE2d 55) (2013). “Unjust enrichment applies when as a matter of fact there is no legal contract, but when the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for.” (Citation and punctuation omitted.) Tuvim v. United Jewish Communities, 285 Ga. 632, 635 (2) (680 SE2d 827) (2009). On appeal, Mary explains her theory of recovery on the trust counterclaim as follows: “Since Johnnie paid for and provided financing for the Cordele property, equity requires that Johnnie’s estate have the beneficial interest in the Cordele property”; otherwise, the appellants will receive “a windfall.”

Unjust enrichment, however, does not apply when the conferred benefit was a gift or voluntary payment. See Estate of Crook v. Foster, 333 Ga. App. 36, 39-40 (1) (775 SE2d 286) (2015) (“[O]ne who makes a gift or voluntarily pays money which she knows she does not owe confers a benefit, but she is not entitled to restitution.”) (citation and punctuation omitted); see also Stoker v. Bellemeade, LLC, 272 Ga. App. 817, 819 (1) (615 SE2d 1) (2005), reversed in part on other grounds, Bellemeade, LLC v. Stoker, 280 Ga. 635 (631 SE2d 693) (2006). Thus, even if the appellants do not enjoy the benefit of the familial gift presumption applicable to purchase money resulting trusts, they nevertheless may defeat Mary’s trust counterclaim by demonstrating that Johnnie’s contributions to the Cordele property were gifts or voluntary payments.

The record shows without dispute that Johnnie bought the Cordele property, procured the mortgage, and had the monthly mortgage payments automatically deducted from his bank account. He took these actions so that his sister and her husband could live in the house. Johnnie later transferred the property to himself and the appellants, but he did not consult the appellants before executing the warranty deed. Further, the appellants testified that Johnnie told them that he had set aside enough money to pay off the mortgage balance. This evidence was sufficient to raise a question of fact as to whether the financial contributions by Johnnie and his estate to the Cordele property were, at least in part, gifts or voluntary payments not required to be repaid. See Estate of Crook v. Foster, 333 Ga. App. at 40 (1). The trial court therefore erred by granting summary judgment to Mary on her trust counterclaim.

3. The appellants argue that they were entitled to summary judgment in their favor because Mary’s payoff of the mortgage resulted in a cancellation or satisfaction of the loan documents, rather than an assignment of those documents to Johnnie’s estate. The appellants rely on Walker v. Neil, 117 Ga. 733 (45 SE 387) (1903), in which the Supreme Court held that “[wjhere money due on a mortgage is paid by one whose duty it is, by contract or otherwise, to pay the mortgage, it is a release, though in form it purports to be an assignment.” (Punctuation omitted.) Id. at 741 (5), citing Clay v. Banks, 71 Ga. 363 (1884). The appellants maintain that Johnnie had a legal duty to pay the mortgage, pursuant to the loan documents, and this duty passed to his estate upon his death. See OCGA § 53-7-40 (6) (“Unless otherwise provided by law, all property of the estate, both real and personal, shall be liable for the payment of claims against the estate in the following order:... (6) Judgments, secured interests, and other liens created during the lifetime of the decedent.. .”). Once the estate paid off the mortgage, the appellants reason, the debt was satisfied, and the loan documents were legally cancelled.

Mary, on the other hand, argues that the loan documents were properly assigned to the estate under the doctrine of equitable subrogation. That doctrine “provides that where it was the intent of the parties to substitute a new creditor’s rights for the rights of the creditor that is being paid off, the new creditor steps into the shoes of the old creditor in terms of priority.” (Citation and punctuation omitted.) Kim v. First Intercontinental Bank, 326 Ga. App. 424, 426 (1) (a) (756 SE2d 655) (2014). The trial court agreed with Mary, ruling that her “claims and... rights to foreclose on the Cordele Property are protected by the doctrine of equitable subrogation.”

But equitable subrogation does not apply where the entity paying off the obligation is itself a debtor on the obligation. See Johnson v. AgSouth Farm Credit, 267 Ga. App. 567, 569, 570 (3) (600 SE2d 664) (2004). In her appellate brief, Mary asserts — without explanation — that the scenario of a debtor paying off a loan “is not the case here.” But as noted in Division 1, the appellants had no enforceable contractual duty to pay the mortgage, whereas — by virtue of signing the loan documents — Johnnie did. And under Walker v. Neil,

Decided June 20, 2017.

Brock Law, Chaunda F. Brock, Victoria L. Kealy, for appellants.

Jerry A. Landers, Jr., for appellee.

[i]f the money is advanced by one whose duty it is, by contract or otherwise, to pay and cancel the mortgage and relieve the mortgaged premises of the lien, a duty in the proper performance of which others have an interest, it shall be held to be a release, and not an assignment, although in form it purports to be an assignment.

(Citation and punctuation omitted.) 117 Ga. at 741 (5).

The trial court did not address Walker, and Mary does not attempt to distinguish it in her appellate brief; she simply suggests that it is inapplicable because it is an old case. But Walker remains good law, and we are bound by it. See Financial Ed. Svcs. v. State of Ga., 336 Ga. App. 606, 608 (785 SE2d 544) (2016) (Court of Appeals “has no authority to overrule or modify a decision made by the Supreme Court of Georgia, as the decisions of the Supreme Court shall bind all other courts as precedents”) (citation and punctuation omitted). Accordingly, the appellants were entitled to cancellation or satisfaction of the loan documents, and the trial court erred by ruling otherwise.

4. In light of our ruling in Division 3, it was error for the trial court to dismiss the appellants’ petition.

Judgment reversed.

McMillian and Mercier, JJ., concur.

       Estelle and Charlie will be referred to collectively as “the appellants” and individually by their names.

       Johnnie created and funded the account with his own money before he married Mary. Mary was added to the account after their marriage.

       Osie sent Johnnie money to cover four mortgage payments in 2012.

       Copies of the notice were mailed to the Cordele property.

       The appellants also asserted claims against APCU, but later voluntarily dismissed them.

       Osie has not filed an answer or other responsive pleading.

       In their depositions, the appellants testified that Mary provided this information after they filed their petition.

       Although the appellants do not enumerate as error the trial court’s ruling on Mary’s counterclaim for judicial foreclosure, they implicitly challenge that ruling in their claim of error that the trial court should have ruled that they were entitled to a cancellation or satisfaction of the loan documents. The appellants do not challenge the trial court’s rulings on their claims for emotional distress, an accounting, and loan pay-off information.

       In light of this conclusion, we do not reach the appellants’ argument that the agreement is unenforceable under the Statute of Frauds because it was not in writing. See OCGA § 13-5-30. Additionally, to the extent that Mary argues that the contributions the appellants did make constitute partial performance rendering the agreement enforceable, “[pjerformance does not cure the deficiencies in an agreement that is so vague, indefinite, and uncertain as to make it impossible for courts to determine what, if anything, was agreed upon.” (Citation and punctuation omitted.) Razavi v. Shackelford, 260 Ga. App. 603, 605 (1) (580 SE2d 253) (2003).

       Subsections (1) and (2) of OCGA § 53-12-130 involve, respectively, trusts that are created, but fail, and trusts that are fully performed without exhausting all the trust property. Neither scenario is present here.

       See OCGA § 44-14-3 (b) (2), which provides:
      Whenever the indebtedness secured by any instrument is paid in full, the grantee or holder of the instrument, within 60 days of the date of the full payment, shall cause to be furnished to the clerk of the superior court of the county or counties in which the instrument is recorded a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record. . . .


text:
    A17A0172.
    HARRIS v. THE STATE.
    (802 SE2d 708)
   BARNES, Presiding Judge.

Bruce Ervin Harris was indicted for trafficking marijuana and possession of marijuana with intent to distribute at Atlanta Hartsfield-Jackson International Airport. The trial court granted the State’s motion to quash Harris’s subpoena for all records and documents pertaining to the canine and its handler involved in the detection of drugs in Harris’s luggage. The trial court certified its order for immediate review, and this Court granted Harris’s application for an interlocutory appeal of the trial court’s order. This appeal ensued.

We review the grant of a motion to quash a subpoena under the abuse of discretion standard of review. Bazemore v. State, 244 Ga. App. 460, 463-464 (2) (535 SE2d 830) (2000). So viewed, the record reveals that Homeland Security Investigations officers received a tip about the flight Harris was on originating from San Francisco. When he arrived at Hartsfield- Jackson International Airport, the luggage from Harris’s flight was removed by agents and lined up in two rows. A special agent and his trained canine, “PacMan,” walked along the rows of luggage, and PacMan alerted at Harris’s bag. Afterward, all of the bags were taken to baggage claims, and when Harris claimed his bags, agents made contact with him. During an ensuing interview, Harris consented to a search of his bags. Officers recovered approximately 40 pounds of marijuana from Harris’s bag.

Harris was indicted and charged with trafficking marijuana and possession with intent to distribute marijuana on October 14, 2015. He filed a preliminary motion to suppress on December 4, 2015, and a particularized amended motion to suppress on December 10, 2015, which he later amended and filed on December 29, 2015. The motions were all filed under the 2015 indictment number.

On January 6, 2016, the State re-indicted the case, and on January 20, 2016, Harris filed a motion to suppress, again under the 2015 indictment number, in which he argued, among other things, that the drug dog was unreliable. On February 2, 2016, Harris filed a witness subpoena seeking certain information about the canine and the handler. On February 15, 2016, the State filed a motion to quash the subpoena on the grounds that it was unreasonable and oppressive, in violation of OCGA § 24-13-23, and that the material sought was not relevant, as defined in OCGA § 24-4-401.

On February 25, 2016, a hearing was held on the motion to quash, but it was continued to a later date to allow Harris to refile his motion to suppress after the trial court noted that the only pending motion to suppress had been filed under the 2015 indictment number. The parties agreed that Harris would be permitted to file a motion to suppress identical in “form and substance” to the motion to suppress “inadvertently” filed under the 2015 indictment number. On February 26, 2016, Harris refiled his motion to suppress under the 2016 indictment number. In addition to asserting the lack of probable cause for the seizure of his bags, lack of consent, and that the warrantless seizure of the bag was an illegal search and seizure, Harris also maintained that “the particular dog used was unreliable.”

On March 24, 2016, the trial court held a hearing on the State’s motion to quash, at which the State argued, among other things, that per Florida v. Harris, 568 U. S. 237 (133 SCt 1050, 185 LE2d 61) (2013) and other legal authority, documents related to the dog’s training are not relevant if a dog is certified on the day in question and that the subpoena was overly broad and burdensome. The State had previously provided Harris with five documents — the handler’s training completion certificate, PacMan’s training completion certificate, a certificate from the National Narcotic Detector Dog Association (“NNDDA”) certifying that PacMan and the handler had completed NNDDA certification, and the cover of the NNDDA certification book showing the certification numbers. It argued that this documentation met the Florida v. Harris criteria for establishing the dog’s reliability, and that reliability “goes to the dog’s alert and whether that provides probable cause. . . . Reliability does not go to the training.” The State further asserted that Harris challenged the dog’s reliability, not its training, in his motion to suppress, that it had provided all relevant materials establishing reliability through the certification documents, and “[a]nything else isn’t [relevant to whether the dog was] reliable.”

Harris agreed with the State that under Florida v. Harris there is a presumption that “evidence of certification if unchallenged is enough” but that the case further establishes that the presumption is rebuttable. He asserted that he should be permitted to challenge the dog’s reliability not only on cross-examination but also “based on the underlying records of the dog and the handler. That’s the basis for the subpoena.” Harris maintained that “as used in a context of a motion to suppress or a suppression hearing the subpoena would be used to challenge the reliability of the dog and the dog handler.”

At the conclusion of the hearing, the trial court orally ruled as follows:

After hearing the argument of the parties and examining the subpoena sought by [Harris], first of all, looking at the motion to suppress and what is sought in the motion to suppress, the Court grants the motion to quash by the State, finding that the items that are sought by the subpoena duces tecum are not relevant. Also, that the requests are over broad, they are unreasonably burdensome and oppressive.

Subsequently, the trial court entered a written order granting the State’s motion to quash.

Following our review, we vacate the trial court’s grant of the State’s motion to quash and remand for further proceedings consistent with this opinion.

When a motion to quash a subpoena is filed, the party serving the subpoena has the initial burden of showing the documents sought are relevant. Where the evidence sought in a subpoena duces tecum is demonstrably relevant and material to the defense, it is error for a trial court to quash the subpoena.

(Citations and punctuation omitted.) Gregg v. State, 331 Ga. App. 833, 835 (771 SE2d 486) (2015) (physical precedent only).

The materials requested in Harris’s subpoena were “[a] 11 records and documents relating to drug/narcotic/explosive detection canine handler [and] [a] 11 records and documents relating to drug/narcotic/ explosive detection canine ‘PacMan.’ ” He contends that the materials had demonstrative material relevance to an ultimate issue of his defense as presented in his motion to suppress, to wit: PacMan’s reliability Harris further contends that per Florida v. Harris, he has a vested right to challenge the State’s certification evidence of Pac-Man’s reliability because the reliability of the dog’s alert is a “fact of consequence” to his motion to suppress and, moreover, that he is entitled to cross-examine the handler with the subpoenaed training documents that might either support or contradict the handler’s opinion that PacMan’s alert was reliable. Thus, he argues, because he has met the burden of establishing that the documents are relevant and material to his defense or fall within his broad right to a thorough and sifting cross-examination, the trial court erred in granting the motion to quash. See Gregg, 331 Ga. App. at 835.

According to the State, PacMan was certified through the NNDDA for the detection of marijuana and other narcotics and drugs, and because PacMan’s certifications were current on the day of the incident, in accordance with United States v. Villa, 348 Fed.Appx. 376 (10th Cir. 2009) and United States v. Gonzalez-Acosta, 989 F2d 384, 388-389 (II) (10th Cir. 1993), there was a presumption of reliability. Thus, the State argues, the documents in the subpoena, which were related to the dog’s training, are not relevant to show that the dog was reliable.

In Florida v. Harris, the Supreme Court reversed the grant of a defendant’s motion to suppress on the grounds that Florida’s requirement that the State present an exhaustive set of records to establish a dog’s reliability was “inconsistent with the flexible, common-sense standard of probable cause.” (Punctuation omitted.) 568 U. S. at 240. There, the defendant did not challenge the dog’s training, arguing instead that the dog’s certification had expired and that he had falsely alerted twice to defendant’s truck even though no drugs were found therein. The Court explained that

evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

(Emphasis supplied.) Harris, 568 U. S. at 246-247 (II). But, the Court also pointed out that

[a] defendant... must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings.

Id. at 247.

In McKinney v. State, 326 Ga. App. 753 (755 SE2d 315) (2014), this Court relied upon the Florida u. Harris standard for reviewing probable cause based upon an alert. Quoting from that case, we held that

[t]he court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.

(Citation and punctuation omitted.) Id. at 755 (1). And, in Gregg, which was decided after McKinney, this Court explained that a defendant who elects to have the reciprocal discovery statutes apply may nonetheless utilize subpoena power to obtain relevant documents. Gregg, 331 Ga. App. at 834. “Where the evidence sought in a subpoena duces tecum is demonstrably relevant and material to the defense, it is error for a trial court to quash the subpoena.” Id. at 835.

In the present case, at the hearing on the motion to quash, the trial court orally found that the items sought in the subpoena were not relevant to “what is sought in the motion to suppress,” and also that the requests are overly broad, unreasonably burdensome and oppressive. Although the subsequent written order did not provide a rationale for granting the motion to quash, the trial court apparently accepted the State’s contention that the certification documents alone created an unrebuttable presumption of reliability, and that materials related to training were not relevant to demonstrate reliability

While, as explained by this Court in McKinney, within the context of establishing probable cause, certification can be sufficient to show that the dog’s alert is reliable, this presumption is established when the reliability is uncontested. McKinney, 326 Ga. App. at 755 (1). But if the defendant contests the reliability of the alert then “the court should weigh the competing evidence.” Id. To do so, the defendant should be permitted to utilize subpoena power to obtain relevant materials. Gregg, 331 Ga. App. at 835. Thus, for the trial court to weigh competing evidence, the defendant must have access to it. The cases do not hold, as the State asserts, that Harris is precluded from challenging the reliability of the alert with materials related to training because reliability was presumptively established by demonstrating certification on the day of the alert.

Decided June 20, 2017.

Steven H. Sadow, Matthew K. Winchester, for appellant.

Tracy Graham Lawson, District Attorney, Daniel J. Nagel, Jeffrey M. Gore, Assistant District Attorneys, for appellee.

Having determined that certification on the day of the alert does not preclude a challenge to the reliability, this Court cannot determine from the existing record whether the training materials were relevant to the issue of reliability The subpoena requested all of the “records and documents relating to” the handler and PacMan. At the hearing on the motion to quash, the State simply argued that the materials were irrelevant because training materials were not related to reliability, and reliability was established per se by the certification. Other than the blanket assertion that training materials are irrelevant to demonstrate reliability based on its interpretation of Harris and its progeny, the State offered no other basis for its objection. Moreover, even if the subpoena was overly broad, a trial court has discretion to modify it. See OCGA § 24-13-23; Bazemore, 244 Ga.App. at 464 (2) (in response to a motion to quash, a trial court may modify a subpoena).

Accordingly, because it is unclear whether Harris met his burden of establishing that the subpoenaed materials were relevant to challenge the reliability of the alert, and, if so, whether the State then met its burden of demonstrating that the subpoena was overly broad and unreasonably burdensome, we vacate the trial court’s judgment and remand this case to the trial court for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

McMillian and Mercier, JJ., concur.

       The record does not include any filings made under the previous indictment. Much of the procedural posture was detailed at the March 24, 2016 hearing on the State’s motion to quash.

       The subpoena in its entirety requested:
      1. All rules, regulations, policies, etc. in your possession, custody or control relating to the use of drug/narcotic/explosive detection canines. 2. All rules, regulations, policies, etc. in your possession, custody or control relating to the training of drug/narcotic/explosive detection canines and handlers. 3. All records and documents relating to drug/narcotic/explosive detection canine handler S/A Brian Hoopingarner. 4. All records and documents relating to drug/narcotic/explosive detection canine “PacMan.”

       At the hearing, Harris withdrew the first two requests listed in his subpoena, and the only remaining items sought under the subpoena were the records and documents relating to PacMan’s handler, and the records and documents relating to PacMan.

       OCGA § 24-4-401 (“ ‘relevant evidence’means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”).