text:
    A11A2211.
    CITIBANK (SOUTH DAKOTA), N.A. v. GRAHAM.
    (726 SE2d 617)
   Adams, Judge.

Citibank (South Dakota), N.A. in its own capacity and as successor in interest to Citibank USA, N.A. (“Citibank”) appeals the trial court’s dismissal of its lawsuit against Bart L. Graham, Commissioner of the Georgia Department of Revenue (the “Commissioner”), seeking a refund for taxes paid on bad debts. We affirm for the reasons set forth below.

Citibank provides financing for “private label credit card” programs (the “Programs”) through which consumers finance purchases from various retailers. The Programs permit the retailer to offer financing for the purchase of the retailer’s merchandise to its qualifying customers. Under the terms of the Programs, Citibank paid the retailers the outstanding amounts on the accounts, and the retailers disclaimed any and all ownership rights to the credit card accounts.

When consumers defaulted on these Citibank-financed credit card accounts and the accounts became uncollectible (the “Bad Debt”), a portion of the uncollected debt necessarily included amounts used to pay Georgia sales tax. Citibank claimed these uncollected accounts as a bad debt deduction for federal income tax purposes. In addition, Citibank filed a number of claims with the State of Georgia for a refund of the portion of the Bad Debt representing the payment of Georgia sales tax, but the Department of Revenue (the “Department”) denied these claims.

Citibank subsequently filed a complaint against the Commissioner asserting that it is entitled to a refund for sales tax paid during the period January 1, 2004 and September 30, 2006, in the aggregate amount of $10,147,730 under OCGA § 48-8-45 (the “Bad Debt Statute”) and OCGA § 48-2-35 (the “General Refund Statute”). The trial court dismissed the complaint, and we granted Citibank’s application for discretionary appeal.

1. Citibank asserts that the trial court erred in holding that Citibank is not entitled to a refund under the Bad Debt Statute. At the relevant time, that statute provided in pertinent part:

Any person reporting on the accrual basis of accounting shall be allowed a deduction for bad debts under rules and regulations of the commissioner on the same basis that bad debts are allowed as a deduction on state income tax returns. In the case of an assignee of credit card debt purchased directly from a dealer without recourse, the assignee reporting on the accrual basis of accounting or a credit card bank which extends such credit to customers under a private label credit card program shall be allowed a deduction for bad credit card debts under rules and regulations of the commissioner on the same basis that bad credit card debts are allowed as a deduction on state income tax returns.

(Emphasis supplied.) OCGA § 48-8-45 (c) (Ga. L. 1998, p. 604, § l).

The Bad Debt Statute, by its terms, provides a deduction based upon bad credit card debts, but because Citibank does not remit sales taxes to the Department or file sales tax returns in Georgia, it cannot utilize this deduction. Instead, it seeks a refund of the sales tax paid by its private label merchants on the credit card purchases. Citibank asserts that the Bad Debt Statute entitles it to a refund of the amounts it advanced to consumers to pay Georgia sales tax because the statute provides a deduction to private label credit card companies “on the same basis that bad credit card debts are allowed as a deduction on state income tax returns.” Citibank argues that we should interpret this language to provide it a refund of sales tax because a “refund of income taxes is allowed if the bad debt deduction included as part of a net operating loss on a state income tax return results in an overpayment of taxes in the applicable year.” Accordingly, Citibank argues that the “on the same basis” language in the Bad Debt Statute entitles it to a refund of the tax paid by its Program merchants. We disagree.

Our interpretation of the Bad Debt Statute must begin with “the fundamental principle of statutory construction that requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.” (Punctuation and footnote omitted.) Fidelity and Deposit Co. &c. v. Lafarge Bldg. Materials, 312 Ga. App. 821, 823 (720 SE2d 288) (2011). In drafting the Bad Debt Statute, the General Assembly chose to grant only a deduction for bad credit card debt, and this Court is without power to expand the plain language of the statute. “When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant,” Clark v. Rush, 312 Ga. App. 333, 336 (2) (718 SE2d 555) (2011) (citation omitted), so, “[w]hen a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.” Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). See also Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946) (appellate courts “must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning”).

That the legislature’s choice of the word “deduction” was intentional is demonstrated by a comparison with OCGA § 48-8-58, which establishes the tax implications for property returned after a purchase. As the statute existed at the pertinent time, it provided a deduction from gross sales for property returned within 90 days of purchase, a tax credit for property returned after 90 days and a tax refund for dealers who had retired from business. Ga. L. 1978, pp. 309, 632-633, § 2. Thus, the legislature knew how to provide a refund when it chose to do so and how to distinguish among deductions, credits and refunds; therefore, we must presume that the legislature’s failure to provide a refund under OCGA § 48-8-45 was “a matter of considered choice.” (Citations and punctuation omitted.) Deutsche Bank Nat. Trust Co. v. JP Morgan ChaseBank, 307 Ga. App. 307, 311 (1) (b) (704 SE2d 823) (2010).

We must also be guided by the principle that “where one seeks the benefit of an exemption from taxation, any such exemption must be strictly construed and will not be found unless the terms under which it is claimed clearly and distinctly show that such was the intention of the legislature.” (Citations and punctuation omitted.) Gen. Motors Acceptance Corp. v. Jackson, 247 Ga. App. 141, 145 (1) (542 SE2d 538) (2000). Deductions, tax credits and refunds “are allowed as a matter of legislative grace and are authorized only where there is a clear statutory provision for them.” (Citations omitted.) Brosnan v. Undercofler, 111 Ga. App. 95, 96 (140 SE2d 517) (1965). See also Fulton Bag & Cotton Mills v. Williams, 212 Ga. 783, 786 (2) (95 SE2d 848) (1956). Without specific legislative authorization for a refund of Georgia sales tax on bad debts, we are without authority to re-write the statute to provide such relief. Thus, we conclude the only potential tax relief afforded by former OCGA § 48-8-45 (c) is a deduction.

2. Citibank also contends that it is entitled to a refund of the taxes paid by its private label merchants under the General Refund Statute. At the pertinent time, that statute provided, in relevant part:

A taxpayer shall be refunded any and all taxes... which are determined to have been erroneously or illegally assessed and collected from such taxpayer under the laws of this state, whether paid voluntarily or involuntarily, and shall be refunded interest... on the amount of the taxes ... at the rate of 1 percent per month from the date of payment ....

OCGA § 48-2-35 (a). Citibank argues that it should be considered a taxpayer because it advanced the money to pay for the consumer’s purchases and accompanying sales tax. We disagree.

Citibank is not a taxpayer entitled to a refund under OCGA § 48-2-35. Only the taxpayer who has the burden of paying the tax may receive a refund of sales tax paid. Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue, 279 Ga. 22, 23 (2) (608 SE2d 611) (2005). See also James B. Beam Distilling Co. v. State of Ga., 263 Ga. 609, 611 (2) (437 SE2d 782) (1993) (wholesaler determined to be taxpayer for purposes of refund statute where excise tax code placed burden on manufacturer or wholesaler to affix tax stamp denoting payment of tax, and manufacturer paid the tax, but billed and collected the tax amount from the wholesaler). Each time a purchase is made using the private label credit cards, it is the customer who has the obligation to pay sales tax to the retailer at the time of purchase. OCGA §§ 48-8-30 (b) (1); 48-8-34 (a). And the retailer is required to levy the tax as part of each sale, and the sale becomes “a debt from the purchaser or consumer to the dealer.” OCGA § 48-8-35. The retailer, in turn, has the obligation of remitting all collected sales taxes to the Commissioner. OCGA § 48-8-30 (b) (1). “Thus, the tax imposed became a tax dual in nature, as both purchaser and retailer were liable for the tax and the tax was imposed upon each sale when the contract was executed.” (Citations omitted.) Gen. Motors Acceptance Corp. v. Jackson, 247 Ga. App. at 143 (1).

In contrast, Citibank had no statutory obligation to pay, remit or prove payment of any tax. It is simply a third-party lender that contracted to advance the money for the consumer, and ultimately the merchant, to meet their obligations to pay the sales tax. Because Citibank did not bear the burden for the tax, it is not a taxpayer and it has no standing to invoke this provision of the tax code. Citibank’s only obligation was contractual, and thus any recourse available to it is also contractual. Accordingly, Citibank’s recourse is against the consumer who defaulted on the debt or possibly through any provisions in the Program contracts assigning responsibility for bad debts among the various parties, but it is not entitled to a refund under the General Refund Statute.

3. We also reject Citibank’s argument that it is entitled to pursue a common law claim for refund of these taxes. This Court has held that the General Refund Statute represents a partial waiver of such immunity by the State, and any claim for taxes erroneously or illegally assessed is limited to the terms of that statute. Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue, 279 Ga. at 23 (2); Ga. Emission Testing Co. v. Jackson, 259 Ga. App. 250, 252 (576 SE2d 642) (2003). “Since the decision to waive sovereign immunity is a voluntary act on the part of the State, the State may prescribe the terms and conditions on which it will consent to be sued.” (Citation omitted.) Georgia Emission Testing Co. v. Jackson, 259 Ga. App. at 252.

But Citibank points to this Court’s decision in Hawes v. Smith, 120 Ga. App. 158 (1) (169 SE2d 823) (1969), to argue that it has aright to seek a refund under the common law. In that case, the plaintiff taxpayer sought a refund of sales and use tax under former Ga. Code Ann. § 92-8436, one predecessor to the current General Refund Statute. The Hawes opinion acknowledged that Ga. Code Ann. § 92-8436 gives the plaintiff the statutory authority to seek a refund, but recognized that the right to sue for a refund arose at common law under the theory of indebitatus assumpsit for money had and received. Hawes v. Smith, 120 Ga. App. at 158 (1). See also Oxford v. Shuman, 106 Ga. App. 73, 78 (2) (b) (126 SE2d 522) (1962). Although the Hawes opinion and the Oxford opinion upon which it relies both discuss the question of a tax refund in terms of the common law theory of money had and received, both cases actually considered refund claims under specific statutory authority. Thus, the issue of sovereign immunity did not arise because the legislature had granted the plaintiff taxpayer the specific right to bring the suit at issue. Id. Nevertheless, we do not read these cases as holding that a taxpayer has a separate common law claim for a tax refund without regard to the General Refund Statute. See Barnes v. City of Atlanta, 275 Ga. App. 385, 388 (1) (a) (620 SE2d 846) (2005) (even if the right to seek a tax refund existed at common law, “it does not follow that the plaintiffs could simply bypass” the requirements of the applicable refund statute), reversed on other grounds, Barnes v. City of Atlanta, 281 Ga. 256 (637 SE2d 4) (2006). In any event, whatever the theory asserted, Citibank did not pay any sales tax and thus it had no standing to bring any claim for a tax refund.

Decided March 23, 2012

Parker, Hudson, Rainer & Dobbs, John W. Mitchell, William J. Holley II, for appellant.

Samuel S. Olens, Attorney General, Frances C. Mulderig, Warren R. Calvert, Assistant Attorneys General, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       The emphasized language was first altered and later deleted by subsequent amendments to the statute. Ga. L. 2008, p. 473, § 3; Ga. L. 2010, p. 507, § 12; Ga. L. 2011, p. 46, § 6.

       Contrary to Citibank’s argument, our interpretation of the statute does not render the 1998 amendment meaningless simply because Citibank and other companies engaged in financing for private label credit card companies may not he able to take advantage of the deduction. The amendment also allowed deductions for assignees of bad credit card debt. Indeed, an earlier decision by this Court could be read as interpreting the 1998 amendment to provide a deduction only for such assignees. The opinion notes that “having provided for a bad debt deduction to assignees of bad credit card debt, the legislature has impliedly denied it to any others,” perhaps interpreting the phrase “[i]n the case of an assignee of credit card debt purchased directly from a dealer without recourse” as applying to both assignees reporting on the accrual basis and credit card banks extending credit under a private label program. Gen. Motors Acceptance Corp. v. Jackson, 247 Ga. App. 141, 142 (1) (542 SE2d 538) (2000).

       We are not persuaded by Citibank’s argument that the 2011 amendment to OCGA § 48-8-45 supports its proffered interpretation of the 1998 amendment. The 2011 amendment establishes both a deduction for bad debts and a refund where the amount of the bad debt exceeds the taxes paid, but it allows only dealers to take advantage of them. Ga. L. 2011, p. 38, § 6. Citibank argues that the legislature’s decision to clearly limit any tax relief to dealers indicates that it was entitled to refund under the earlier version of the statute. But the amendment could merely reflect the legislature’s intent to eliminate any possibility of a bad credit debt deduction for credit card companies or it could merely be a codification of the Department’s historical interpretation of the statute, which apparently limited potential deductions “only to a dealer and only under certain circumstances.” (Footnote omitted.) Gen. Motors Acceptance Corp. v. Jackson, 247 Ga. App. at 144 (1). See also Ga. Comp. R. & Regs. r. 560-12-1-.06.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A11A2360.
    PULLEN v. THE STATE.
    (726 SE2d 621)
   DOYLE, Presiding Judge.

Richmond County charged Charles Pullen with armed robbery, hijacking a motor vehicle, and possession of a firearm during the commission of a crime. Following a jury trial, he was convicted of robbery by force, as a lesser included offense of armed robbery, and theft by taking, as a lesser included offense of hijacking a motor vehicle; he was acquitted of possession of a firearm during the commission of a crime. Pullen appeals the denial of his subsequent motion for new trial, arguing that the trial court erred (1) by allowing the State to ask leading questions of a prosecution witness in violation of his confrontation right; (2) by admitting evidence of third-parties’ identifications of Pullen; and (3) in charging the jury. We affirm, for the reasons that follow.

Construed in favor of the verdict, the record shows that Bradley Scott Denson drove to the bank one day, accompanied by Pullen, whom Denson knew as “Shy.” When Denson went into the bank, he left his keys and Pullen in the car. After Denson returned home, he discovered that the key to his apartment was missing. Approximately a week later, on September 29,2007, Denson’s laptop computer, a CD player, his book bag, and a small amount of money were taken from his residence. Denson told police that he thought Shy had committed the burglary.

On October 5, 2007, at approximately 12:30 p.m., Pullen and three other men knocked on Denson’s door, and Denson let them into his apartment. One of the men had a gun, and another had a knife and was wearing a black bandana over his face. Pullen questioned Denson about whether he gave Pullen’s name to the police as a suspect in the previous burglary and asked whether Denson thought Pullen committed the burglary. The three men who accompanied Pullen attacked Denson, punching and kicking him, and the men took Den-son’s wallet, his cell phone, posters, food, beer, DVDs, a gaming device, and video games. Pullen took the key to Denson’s Chevrolet Cavalier off his key ring, and the men took the Cavalier.

Denson told the police that Shy was one of the men involved in the attack, and he told police where Shy lived. Denson later identified Pullen in a photographic lineup and at trial. A review of Denson’s cell phone records obtained after the incident reflect a phone call made on October 5, 2007, at 2:18 p.m. to a phone number assigned to Carolyn Watts, Pullen’s aunt.

Denson’s Cavalier was recovered thereafter. The title, which was in the vehicle at the time it was stolen, reflected Denson’s purchase of the car from Wendy M. Chio-Hepler, his sister-in-law, on July 3, 2007. The title also contained a later entry listing Chio-Hepler as the transferor, but did not list a transferee. A separate entry listed Pullen as both the purchaser and the transferor/seller and listed Jellont J. Walker as the transferee/buyer. The title did not reflect a transfer from Denson. According to Denson, the entries following the initial transfer of the vehicle to him from Chio-Hepler were added after the robbery.

Pullen testified at trial and denied burglarizing Denson’s house, robbing him, or stealing his car. Instead, Pullen stated that he recognized Denson’s laptop, which Pullen knew had been stolen, while visiting friends where men were selling stolen merchandise. According to Pullen, he called Denson and told him about the laptop, and Denson asked him to bring “the guys” over to his house. Pullen, accompanied by “J. J.” and two other men, went to Denson’s house. Pullen said the men and Denson had a verbal altercation that became physical, after which Pullen and one of the other men left. Two days later, Pullen saw “J. J.,” who asked him if he wanted to buy the Cavalier he was working on. According to Pullen, he did not want to purchase the car, but J. J., who did not have identification, asked him to “sign over” the car “to help [J. J.] sell his vehicle,” and Pullen agreed, signing his own name to the title.

At the conclusion of the trial, the jury acquitted Pullen of possessing a firearm during the commission of a crime and found him guilty of the reduced charges of robbery by force and theft by taking. This appeal followed the denial of his amended motion for new trial.

1. Pullen argues that the trial court erred by permitting the State to ask leading questions of Jerry Walker, who had invoked his Fifth Amendment privileges, contending that the exchange between the prosecutor and Walker violated his Sixth Amendment confrontation right.

The State called Walker on direct examination and asked him whether he had purchased a vehicle from someone in the courtroom. Walker replied, “No, sir,” and then invoked his Fifth Amendment privilege against self-incrimination. The State offered Walker immunity from prosecution in Richmond County, but the trial court agreed with defense counsel’s assertion that the Richmond County District Attorney’s Office could not offer Walker immunity with respect to any charges in Emanuel County or Swainsboro. Walker then proceeded to alternate denial of questions posed by the prosecution with assertion of his Fifth Amendment privilege when asked whether he signed the car title in Pullen’s presence and whether Walker took a photograph, which Walker conceded depicted Pullen, of the person who sold him the car.

Pullen contends that the State violated his right to confront witnesses by asking leading questions of Walker, who was uncooperative. Although defense counsel objected at trial to the prosecutor asking leading questions, counsel did not argue that the exchange violated his Sixth Amendment right of confrontation. Thus, he has waived appellate review of this issue. Even assuming that the exchange between the prosecutor and Walker violated Pullen’s right to confrontation, however, Pullen is not entitled to a new trial because any such error was harmless.

Whether a violation of the Confrontation Clause is harmless depends on a host of factors, including the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Following Walker’s testimony, another witness testified that Walker, who had purchased a Cavalier, stated that he took a photograph of the man who sold him the car. Thus, Walker’s testimony regarding the photograph is cumulative. Given the evidence in the case, including Pullen’s signature on the car title, Denson’s testimony, and Pullen’s admissions that he signed the title, helped Walker sell the car, and was present during the assault on Pullen, any error in the State’s direct examination of Walker was harmless.

2. Pullen argues that the trial court erred by admitting a police investigator’s testimony that two witnesses, who did not testify at trial, identified Pullen in a photographic lineup. This enumeration presents no basis for reversal.

At trial, defense counsel objected to the investigator’s testimony regarding the two witnesses’ identification of Pullen on hearsay grounds, and the trial court instructed the witness, “Don’t testify to what somebody else told you... unless it was the Defendant.” Defense counsel did not move for a mistrial, request a curative instruction, or seek any relief. Thus, there is nothing for us to review on appeal.

3. Pullen contends that the trial court erred when charging the jury by intimating its opinion as to Pullen’s credibility in violation of OCGA§ 17-8-57.

The trial court instructed the jury on impeachment:

A witness may be impeached several ways, and I will outline the following ways: a) by disproving the facts to which the Defendant[ ]s testified; or b) proof that the witness has been convicted of a felony; c) proof that certain crimes, in this particular instance, the crime of criminal attempt to commit burglary, as it relates to the Defendant, and the crimes of sale of cocaine, sale of cocaine within 100 feet of a housing project, and possession of a firearm during the commission of a crime, as it relates to the witness Walker. Those — proof of those charges can apply to impeachment of a witness.

Pullen objected to the charge at trial, and he argues on appeal that the trial court’s “gratuitous tailoring of the charge to reflect a specific reference to the defendant... was tantamount to an expression of opinion that the defendant, in particular, had been so impeached,” in violation of OCGA § 17-8-57.

OCGA § 17-8-57, however, “is violated only when the trial court’s instruction, considered as a whole, assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.” ‘When the charge on [impeachment] given in this case is considered in context, no reasonable juror could have construed it as an expression of the trial court’s own opinion that” Pullen had been impeached or committed the alleged crimes. Moreover, the trial court “otherwise instructed that the jury alone would decide whether [Pullen] was guilty of a crime.” This enumeration is without merit.

Decided March 23, 2012.

Peter D. Johnson, for appellant.

R. Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA§ 16-8-41 (a).

       OCGA§ 16-5-44.1 (b).

       OCGA§ 16-11-106 (b) (1), (2).

       OCGA§ 16-8-40 (a)(1).

       OCGA§ 16-8-2.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Walker is referred to in the trial court as both “Jerry Jellont Walker” and “Jellont Jerry Walker.”

       Pullen denied that “J. J.” was Jerry Jellont Walker.

       See Sanders v. State, 290 Ga. 445, 448 (3) (721 SE2d 834) (2012), citing Heidler v. State, 273 Ga. 54, 60 (7) (537 SE2d 44) (2000).

       (Punctuation omitted.) Collum v. State, 281 Ga. 719, 722 (2) (642 SE2d 640) (2007), quoting Delaware v. Van Arsdall, 475 U. S. 673, 684 (106 SC 1431, 89 LE2d 674) (1986).

        See Ardis v. State, 290 Ga. 58, 62-63 (2) (a) (718 SE2d 526) (2011); Laye v. State, 312 Ga. App. 862, 870-871 (2) (720 SE2d 233) (2011); Silverio v. State, 306 Ga. App. 438, 448 (5) (702 SE2d 717) (2010).

       The witnesses did not identify Pullen as having committed the alleged (or any) crimes. Instead, the investigator showed them a photographic lineup containing a photograph of the man Denson had identified as “Shy,” and the men identified the person in the photograph as Pullen.

       See Pena v. State, 247 Ga. App. 211, 216 (1) (542 SE2d 630) (2000) (“When an appellant could have tendered a timely motion for mistrial or requested... instruction but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial.”) (punctuation omitted); O’Kelley v. State, 175 Ga. App. 503, 505 (1) (333 SE2d 838) (1985) (‘Where a defendant makes no motion for mistrial, either at the time of his objection or after the court’s curative instruction, there is nothingfor us to review ”); Farmer v. State, 180 Ga. App. 720, 722-723 (6) (350 SE2d 583) (1986).

       OCGA § 17-8-57 provides:
      It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

       (Emphasis supplied.)

       (Punctuation omitted.) Parker v. State, 276 Ga. 598, 600 (5) (581 SE2d 7) (2003).

       Id.

       Id.


author: Andrews, Judge.

text:
    A11A1747.
    WOOD et al. v. UHS OF PEACHFORD, L.P. et al.
    (726 SE2d 422)
   Andrews, Judge.

April Wood, the daughter of Sherlie Wood, sued UHS of Peach-ford and Dr. Guy Sommers (collectively “Peachford”) after her mother died while a patient at Peachford. After several sanctions for discovery abuses against plaintiffs counsel, the trial court again admonished counsel several times during voir dire for asking questions that required the jurors to prejudge the case. Counsel ignored the judge’s instructions and continued asking the prohibited questions. The court declared a mistrial and excused the jury. Peachford then filed a motion to dismiss the case for plaintiffs wilful and repeated violations of the court’s orders and rules. The trial court granted the motion. Because the trial court did not abuse its discretion in dismissing the case for failure to comply with its orders, we affirm.

The record shows that the trial court sanctioned Wood’s counsel several times during the discovery process. Prior to filing suit, Wood requested her mother’s chart from Peachford. In complying with that request, Peachford inadvertently included the report of Dr. Tommy Richardson, which was generated as a result of the peer review process. Peachford moved for a protective order and asked to have the document returned. The court ruled that it was a peer review document, ordered it returned, and instructed Wood that it was not to be used in the case.

Subsequently, during the deposition of Wood’s expert, Dr. Davis, Peachford’s counsel discovered that Wood had provided Davis with a copy of Richardson’s peer review report. Davis testified that he used the report in forming his opinion about the case. He also stated that he was told “not to discuss it at his deposition.” The trial court subsequently excluded Davis’s testimony. Wood designated a new expert and counsel again provided the expert with the information in the Richardson document. The trial court then excluded this expert’s testimony. Wood’s counsel was also sanctioned for filing a protective order for the sole purpose of delay and for offensive and threatening behavior toward Sommers’s counsel at a deposition.

During voir dire, Wood’s counsel asked prospective jurors several questions about “breaking rules.” Peachford’s counsel’s objections to these questions were sustained.

During individual juror questioning, Wood’s counsel asked a juror how he would feel if someone died in a hospital as a result of somebody not doing what they were required to do. The next juror was told that their (plaintiff’s) evidence was much greater than a preponderance. The trial court sustained objections to these remarks.

At that point, the trial court instructed Wood’s counsel to stop arguing the case or the court would declare a mistrial. Counsel then told the jurors “we’re not asking for your sympathy. The time for sympathy is long over[.]” The trial court again admonished counsel and told him to “move on.” Counsel again asked jurors about breaking rules. Again the trial court admonished counsel and finally declared a mistrial and dismissed the jury.

Peachford subsequently moved that the case be dismissed. The trial court granted the motion and entered an order barring Arlan Cohen, who had been admitted to the case pro hac vice, from “seeking, receiving, or exercising pro hac vice admission to practice in the State Court of Fulton County.” This appeal followed.

The trial court did not err in dismissing the case. Although, “as a general rule, the trial court should attempt to compel compliance with its orders through the imposition of lesser sanctions than dismissal, the harsh and extreme sanction of dismissal with prejudice is sometimes appropriate.” Mathews v. City of Atlanta, 167 Ga. App. 168, 170 (306 SE2d 3) (1983). In Mathews, the court identified two reasons, either one of which would support dismissal of the case. The first was “the willful nature of plaintiffs conduct” and the second was that the “adequacy of lesser sanctions” was highly doubtful in view of plaintiff’s failure to respond to the trial court’s warnings. Id.

In this case, both reasons are present. Despite clear instructions from the court, both during discovery and voir dire, Wood’s counsel continued with the objectionable behavior in open disregard of the trial court’s orders. Even when threatened with severe sanctions, counsel continued to disregard the court’s instructions.

Decided March 5, 2012

Reconsideration denied March 26, 2012

James H. Potts II, Jill M. Ganser, for appellants.

Huff, Powell & Bailey, Daniel J. Huff, Nall & Miller, Adriane C. Sammons, Michael D. Hostetter, for appellees.

Wood argues that the court’s orders during discovery were in error and therefore sanctions were not appropriate. We disagree. Wood has not shown that the Richardson document was not generated as a result of the peer review process, and the record contains Richardson’s uncontroverted affidavit stating that he was not involved in Wood’s treatment, that as part of the medical peer review process he was asked to review Sherlie Wood’s medical records, and the resulting document “was prepared as part of the peer review process.” We need not reach this issue, however, because even if the sanctions were erroneous, which they were not, that does not excuse the failure to comply with them. Gilbert v. E & W Constr. Co., 181 Ga. App. 281, 284 (351 SE2d 523) (1986).

Further, it was not necessary to conduct a hearing to determine whether counsel’s conduct was wilful. “The trial court need not conduct a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.” McConnell v. Wright, 281 Ga. 868, 869-870 (644 SE2d 111) (2007). See Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 182-183 (402 SE2d 723) (1991).

Here, because the trial court was required to issue orders for each abuse of discovery and because the trial court was present during Wood’s counsel’s flagrant disregard of its orders and instructions during the voir dire process, it was not necessary to conduct a further hearing on the issue of wilfulness.

Therefore, we conclude that the trial court did not abuse its discretion in dismissing this case based on Wood’s counsel’s blatant and wilful disregard for the authority of the court.

Judgment affirmed.

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

       That order is not being appealed.


author: Miller, Judge.

text:
    A11A1645.
    AMTRUST NORTH AMERICA, INC. v. SMITH.
    (726 SE2d 628)
   Miller, Judge.

Amtrust North America, Inc. (“Amtrust”) filed the instant action against James Smith to recover additional premiums owed on a workers’ compensation insurance policy issued to Smith through an assigned risk plan. Smith filed a motion for summary judgment, and Amtrust responded with a cross-motion for partial summary judgment. The trial court denied Amtrust’s partial summary judgment motion and granted Smith’s motion for summary judgment, finding that Smith had no liability to pay additional premiums because he did not enter into a binding contract with Amtrust and did not have an insurance agent who entered into a contract on Smith’s behalf. Amtrust filed the instant appeal to challenge the trial court’s rulings. For the reasons set forth below, we reverse the grant of summary judgment to Smith, and affirm the denial of Amtrust’s partial motion for summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Footnote omitted.) Baxter v. Fairfield Financial Svcs., 307 Ga. App. 286, 287 (704 SE2d 423) (2010).

So viewed, the record evidence shows that, after Smith was unable to obtain workers’ compensation insurance on the open market, Norris Strickland & Associates submitted an application on Smith’s behalf under the Georgia Workers’ Compensation Assigned Risk Insurance Plan. After Smith’s application was processed, his policy was randomly assigned to Amtrust.

Based on Smith’s representation that his estimated employee payroll was zero, Amtrust issued a policy for a one-year period starting in January 2007 with an initial premium of $765. At the end of the January 2007 policy term, Amtrust renewed Smith’s insurance policy for a one-year period starting in January 2008. Based on Smith’s previous policy, Amtrust provided an estimated premium of $765 for the renewed term. Amtrust averred that it mailed a copy of the initial and renewed policies to Smith as confirmation of its issuance and for his review.

Since workers’ compensation premiums are based on the actual amount paid to workers, Amtrust could not determine the actual policy premium until after the conclusion of the policy term. Following the end of the January 2007 policy term, Amtrust conducted an audit of Smith’s payroll records and discovered that an additional premium payment of $42,653 was due based on wages paid to uninsured contractors. Amtrust cancelled the renewed policy in May 2008 and attempted to conduct an audit on Smith’s payroll for the period of January to May 2008. Although Amtrust was unable to complete a full audit, it estimated that Smith owed an additional premium of $44,457 for payroll to uninsured contractors between January and May 2008.

When Smith refused to pay, Amtrust filed the instant lawsuit for the additional premiums. Smith subsequently filed a motion for summary judgment, asserting that he was not obligated to pay additional premiums because he did not sign a written contract with Amtrust; he did not authorize anyone to do so on his behalf; and he did not otherwise assent to the terms of Amtrust’s insurance policy. In response, Amtrust moved for partial summary judgment, arguing that Smith was liable to pay additional premiums because Norris Strickland acted as Smith’s agent when it submitted an insurance application on his behalf; the parties were bound to the terms of the policy once Smith’s application was approved; and Smith otherwise assented to terms of the policy by accepting coverage without objection. Amtrust also argued that, under the terms of the policy, it properly included uninsured contractors in its audits. The trial court denied Amtrust’s partial summary judgment motion and granted Smith’s motion for summary judgment, finding that Smith was not liable to pay additional premiums because Smith did not sign a contract with Amtrust, Norris Strickland was not Smith’s agent, and Amtrust otherwise failed to establish the existence of a contract between the parties. Since the trial court’s ruling was based on a finding that no contract existed between the parties, it did not consider whether Amtrust properly conducted audits on Smith’s employee payroll.

1. Amtrust contends that the trial court erred in granting Smith’s motion for summary judgment because Norris Strickland acted as Smith’s agent when it submitted the insurance application on his behalf, and once the application was approved, Smith was bound to the terms of the assigned risk plan policy. We agree.

Independent insurance agents are generally considered the agents of the insured, not the insurer. See European Bakers, Ltd. v. Holman, 177 Ga. App. 172, 173-174 (2) (338 SE2d 702) (1985). In many cases, however, the nature of the relationship between the parties is a matter for the jury to decide. Id.

Here, the trial court found that Smith did not sign a contract, there was no agency relationship between Norris Strickland and Smith, and Smith did not assent to the additional premiums sought by Amtrust. Although Smith denies ever having signed or received an application for insurance, we find no evidence, such as an affidavit, to support his claim. However, even if Smith did not sign a contract with Amtrust, there is no dispute that Smith made an application for workers’ compensation insurance through Norris Strickland. Viewed in the light most favorable to Amtrust, the evidence shows that Norris Strickland was an independent insurance agent, and that it was authorized to complete and submit Smith’s application for workers’ compensation insurance under the assigned risk plan. Under these circumstances, Norris Strickland was Smith’s agent. See European Bakers, supra, 177 Ga. App. at 173-174 (2) (holding that an independent insurance agent was agent of insured where the agent helped insured procure the insurance); Kirby v. Northwestern Nat. Cas. Co., 213 Ga. App. 673, 678 (2) (445 SE2d 791) (1994) (holding that an independent insurance agent was the agent of the insured where the insured procured insurance through the agent).

Notwithstanding Smith’s claim that he did not assent to the terms of the assigned risk policy provided by Amtrust, his express assent was not required under an assigned risk plan.

While, as a general rule, it is true that the premium to be charged on an insurance policy is an essential term of the contract which requires the mutual assent of the parties for validity, this element usually arises from negotiations between the parties, which is absent when insurance coverage is provided through an assigned risk plan, as in this case. Generally, any insurer to whom a particular risk is assigned by the assigned risk plan must accept the assignment and provide coverage, but is allowed a higher premium commensurate with the risk. The premium is determined by a rating system approved by the [Georgia] Insurance Commissioner .... From this perspective, it is apparent that insurance coverage under the assigned risk plan is not the subject of normal negotiations between contracting parties, but is made effective by operation of law to serve the best interests of the general public. It thus follows that the general rule of “mutual assent” as to the amount of the premium does not apply under the circumstances of the case sub judice.

(Citation and punctuation omitted.) Skipper v. Fireman’s Fund Ins. Co., 212 Ga. App. 849, 850 (443 SE2d 302) (1994); see also Rondale Bus Svc. v. American Cas. Co. &c., 189 Ga. App. 869, 871 (1) (377 SE2d 726) (1989). This conclusion is supported by evidence showing that Smith was a qualified applicant under the assigned risk plan, and that Norris Strickland was not acting as an agent of Amtrust. Skipper, supra, 212 Ga. App. at 850.

In the present case, the evidence viewed in a light most favorable to Amtrust shows that Smith was aware that he was obtaining insurance under the assigned risk plan. Amtrust was required to participate in the assigned risk plan by law to insure companies in the assigned risk pool. Ga. Comp. R. & Regs. r. 120-2-38-.07 (1); see also Dennis Perry Homes, Inc. v. Companion Property &c. Ins. Co., 311 Ga. App. 706, 706 (716 SE2d 798) (2011). There is no indication that Amtrust had a right to reject an assigned application that was tendered to it. Ga. Comp. R. &Regs. rr. 120-2-38-.09 (4), (5) (generally providing that coverage is binding once a completed application is submitted and the premium paid); 120-2-38-.10 (an insured is subject to penalties for failing to comply with the terms of the assigned risk plan); see also United States Fidelity &c. Co. v. Paul Assocs., 230 Ga. App. 243, 246 (3) (496 SE2d 283) (1998). Under these circumstances, once his application was approved and the policy was assigned, Smith was bound by terms of the policy under the assigned risk plan. Skipper, supra, 212 Ga. App. at 850. “Consequently, neither law nor equity will relieve [Smith] of the consequences of his submission to the assigned risk plan.” (Citation omitted.) Id. As a result, Smith was not entitled to summary judgment, and we reverse the trial court’s order granting Smith’s motion for summary judgment

2. Amtrust also contends that the trial court erred in denying its motion for partial summary judgment because Amtrust properly included uninsured contractors in its audit of Smith’s premiums. We note that the trial court’s order denying Amtrust’s partial summary judgment does not reflect a ruling on this issue; rather, the trial court’s ruling was based entirely on its finding that Smith had no contract with Amtrust. Although the trial court’s reason for denying Amtrust’s motion for partial summary judgment was erroneous, we may still affirm the trial court’s judgment if it is right for any reason. See Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 45 (4) (586 SE2d 235) (2003) (a judgment of a lower court may be affirmed so long as it is right for any reason); City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002) (appellate courts may exercise discretion as to when to follow the “right for any reason” rule and consider grounds not addressed by the trial court). Since the factual record is set, we are able to apply the facts to the law in the same manner as the trial court in the furtherance of judicial economy. See City of Gainesville, supra, 275 Ga. at 838 (“The de novo review standard advances judicial economy by recognizing that, in summary judgment cases, the factual record is set and the appellate courts can, as well as the trial courts, apply those facts to the law”).

Decided March 26, 2012.

Hays & Potter, James W. Hays, Alexander Yusupov, for appellant.

[UJnder OCGA § 34-9-8, a general contractor is liable for payment of workers’ compensation benefits to the employee of a subcontractor to the same extent as the subcontractor. The purpose of OCGA § 34-9-8 is to ensure that employees in construction and other industries are covered by workers’ compensation. In order to do so, it places an increased burden, in the form of potential liability for workers’ compensation benefits, on the statutory employer. This encourages the statutory employer to require subcontractors to carry workers’ compensation insurance.

(Citations and punctuation omitted.) Dennis Perry Homes, supra, 311 Ga. App. at 708 (1). And an employer may not bypass workers’ compensation laws simply by designating certain employees as independent contractors. Id.

Here, Amtrust presented undisputed evidence that Smith’s insurance premiums were based upon his annual employee payroll, and that the actual premiums could not be computed until after the end of the policy term. However, while Smith may have been obligated to pay additional premiums based on an audit of his payroll, Amtrust conceded, and the record confirms, that its second audit was merely an estimate, rather than a completed audit. Consequently, there is a factual issue as to whether Amtrust’s audits were proper, which precluded summary judgment on the issue of additional premiums owed by Smith. Cf. United Acoustical &c. v. Fidelity & Cas. Co. of New York, 222 Ga. App. 824, 827 (1) (476 SE2d 777) (1996) (insurer’s failure to conduct a complete audit precluded summary judgment on the issue of additional premiums owed by insured). Accordingly, we affirm the trial court’s denial of Amtrust’s motion for partial summary judgment.

Judgment affirmed in part and reversed in part.

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

Samantha F. Jacobs, for appellee.


text:
    A11A1701.
    STONEMILL CHURCH, INC. v. RBC BANK (USA) INC.
    (726 SE2d 632)
   DOYLE, Presiding Judge.

Stonemill Church, Inc., filed suit seeking, inter alia, to enjoin the foreclosure by RBC Bank (USA) Inc. on property held pursuant to a security deed as collateral to a loan by the Bank to Stonemill. The Bank successfully moved for summary judgment, and Stonemill now appeals, contending that issues of material fact remain as to whether Stonemill was in default, whether the Bank waived events of default, and whether the Bank wrongfully prevented tender of payment to release the subject property. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c).Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that on April 17, 2006, Stonemill executed a $10,000,000 promissory note in favor of the Bank to finance the construction of a church building. The note required monthly payments of interest only, with a maturity date of April 17, 2008, when the outstanding principal and interest would become due. In connection with the note, Stonemill executed a security deed for the property.

After construction began, Stonemill merged with Hamilton Mill Baptist Church and agreed to purchase that church’s property (“Hamilton Mill Property”). To finance the purchase, Stonemill requested a draw from the Bank on its construction loan to pay the remaining $192,124.41 mortgage on the Hamilton Mill Property, and the Bank agreed in exchange for a security interest in the Hamilton Mill Property. Accordingly, the original loan documents were amended on December 20, 2006, to reflect the draw and add the Hamilton Mill Property to the collateral securing the note. The amendment also provided as follows: “So long as Borrower is not in default hereunder, or pursuant to the Note, Security Instrument or Loan Documents, and upon the payment or repayment of principal on the Note in the amount of $192,124.41, Lender shall release from the lien of the Security Instrument the Hamilton Mill Property.”

As the April 18, 2008 maturity date approached, Stonemill failed to fully pay the principal or interest on the note. The parties agreed to extend the maturity date to July 17, 2008, and again to August 31, 2008. The latter extension was memorialized in an August 29, 2008 letter from the Bank to Stonemill stating as follows:

The loan (“Loan”)... matured on July 17,2008 (“Maturity Date”). On the Maturity Date, a final payment of the entire balance of principal, interest, fees, premiums, charges and costs and expenses then outstanding on the Loan was due and payable in full. The Borrower has requested that RBC Bank extend the Maturity Date for a period of 45 days, until August 31, 2008 (“Extended Maturity Date”). By this letter, RBC Bank is extending the Maturity Date of the Loan to the Extended Maturity Date.
Between the Maturity Date and the Extended Maturity Date, Borrower will continue to pay to RBC Bank monthly payments of principal and interest. The amount of the monthly payments will be the same as, or determined under the same terms and conditions as, the monthly payments required to be made by Borrower on the Loan prior to the Maturity Date.
On the Extended Maturity Date, a final payment of the entire balance of principal, interest, fees, premiums, charges and costs and expenses then outstanding on the Loan will be due and payable in full by Borrower to RBC Bank, as provided in the . . . promissory note.
Except for the extension of the Maturity Date and continuation of payments under the Loan as provided in the preceding paragraph of this letter, (i) the terms and conditions of the Loan remain unchanged and in full force and effect....
By granting Borrower the extension set forth in this letter, RBC Bank does not waive and is not waiving any of its rights and remedies under the Loan Documents or otherwise .... Borrower and all other persons directly or indirectly liable to RBC Bank under any one or more of Loan Documents shall continue to remain liable to RBC Bank to the same extent as now set forth in the Loan Documents, as modified by the extension granted in this letter ....

In August 2008, Stonemill entered into a contract to sell the Hamilton Mill Property for $2.8 million. The intended closing date was in September 2008, but it was postponed when the parties realized that the Bank still held a security interest in the Property.

As of September 1, 2008, the note had matured and Stonemill had not paid the outstanding principal and interest. On September 4, 2008, Brian Crabtree, Stonemill’s Minister of Finance and Operations, spoke to Helen Cease, an agent of the Bank, and discussed the prospect of selling the Hamilton Mill Property. At that time, Cease explained that the Property was “cross-collateralized” with the construction loan, and she was unsure of the Bank’s position with respect to releasing the Property for the $192,124.41 pay-off amount.

On September 26, 2008, with the principal and interest not fully paid, the Bank agreed to again extend the maturity date to October 31, 2008. Also on that date, Stonemill made a partial interest payment through September 16, 2008. On October 8, 2008, in anticipation of selling the Hamilton Mill Property, Crabtree again spoke with Cease, who explained that the Bank could not release the Property for the $192,124.41 release amount. Stonemill made no other payments until November 25, 2008, when it paid $7,000, despite the entire loan’s maturation at that time.

In November 2008, Stonemill and the Bank had further conversations about Stonemill’s desire to sell the Property and the Bank’s refusal to acceptthe $192,124.41 payoff amount. When Stonemill was unable to provide clear title, a prospective buyer terminated a contract he had entered into to purchase the Property. After November 2008, the Bank stopped sending payment coupons to Stonemill, and the next payment was made in February 2009 for $143,500, followed by successive payments of $26,000 in March, April, and May 2009.

In February 2009, Stonemill and its buyer entered into a contract to consummate the sale of the Hamilton Mill Property, which depended on the release of the Property by the Bank. The sale was closed in escrow pending resolution of Stonemill’s dispute with the Bank.

On March 4, 2009, the Bank, via its attorney, sent Stonemill a letter stating that the loan was in default due to the maturation on October 31, 2008. Two more letters were sent in April 2009 notifying Stonemill of the default status and demanding payoff; in May 2009, the Bank initiated foreclosure proceedings.

In May 2009, Stonemill initiated the present action seeking to enjoin the foreclosure and recover damages arising from the loss of the sale of the Property to the prospective buyer. The Bank voluntarily dismissed its foreclosure proceeding and moved to dismiss the complaint, and Stonemill opposed the motion. In light of the parties’ reliance on matters outside the pleadings, the trial court treated the motion as one for summary judgment, and it granted the motion in favor of the Bank. The court’s order was predicated on the fact that, under the terms of the note, the Bank’s obligation to release the Hamilton Mill Property existed only “[s]o long as Borrower is not in default.” This appeal followed.

Stonemill argues that the trial court erred by granting summary judgment because the record contains issues of fact as to whether it was in default, or whether the Bank waived default, at the time Stonemill requested release of the Property. As stated in its brief, Stonemill essentially argues that the loan documents “do not relieve [the Bank] of the requirement to give notice of default.” We disagree.

With respect to notice of default, the note contained the following language:

Should any installment of principal or interest or any other sums as required by this Note or said Security Deed not be paid in full when due, and should such failure continue for a period of five (5) calendar days from the due date thereof, or should there occur a “Default” or an “Event of Default” under and as defined in the Security Deed, or the other Loan Documents (any such event being hereinafter referred to as an “Event of Default” for purposes of this Note), then and in any such event the entire unpaid principal sum evidenced by this Note, together with all interest accrued thereon, shall, at the option of the holder and without notice or demand to the undersigned, become due and may be collected forthwith, time being of the essence of this Note.

Thus, by the terms of the note, an event of default not remedied within five calendar days would render due the entire debt on the note.

Stonemill argues that the emphasized language above created an obligation on the part of the Bank to notify Stonemill that the debt was accelerated before it could be deemed in default. This, however, ignores the plain language of the agreement that a default shall result in acceleration at the option of the holder “without notice or demand to the” borrower. Thus, whether or not Stonemill received any notice from the bank, a missed payment not remedied within five calendar days resulted in default. Furthermore, even if the Bank was required to make an affirmative election to accelerate the loan, the Bank’s failure to do so does not change the fact that Stonemill failed to pay an obligation and was therefore in default for purposes of the release provision.

As stated by the trial court, it is undisputed that Stonemill failed to fully pay the note by the August 31, 2008 extended maturity date. Thus, at least until the maturity date was extended on September 26, 2008, Stonemill was in default, and by the terms of the note, the Bank had no obligation to honor the $192,124.41 release provision. Further, even assuming that the maturity date extension cured the default due to maturation of the note, Stonemill did not make its September monthly interest payment, always due on the 17th of each month, until September 26. This was outside of the note’s five-day grace period and resulted in default status despite the extended maturity date. Thus, in October 2008, being in default, Stonemill could not satisfy the preconditions necessary to take advantage of the release provision of the amended loan documents.

After the note matured on October 31, 2008, Stonemill still had not satisfied the terms of the note and was. in default in November 2008, at least until an extension of the maturity date to December 15, 2008, allegedly made on November 19, 2008. But Stonemill’s own accounting shows that it did not make any payments in October 2008, and its only payment in November was for $7,000, which was deficient. Thus, even if the maturity date was extended, Stonemill defaulted by failing to make required interest payments.

Decided March 26, 2012.

James B. McClung, for appellant.

Stites & Harbison, J. D. Humphries III, for appellee.

The record shows that Stonemill failed to make any monthly payments from the insufficient November 2008 payment until it made a $143,500 payment on February 9, 2009. Nevertheless, the note was already mature and this payment — even if it covered interest and penalties normally due — did not satisfy the note. Further, although Stonemill made monthly payments of $26,000 in March, April, and May 2009, those payments did not cure the default on the matured note. Thus, Stonemill’s default status continued.

In summary, at all relevant times, Stonemill was in default on its obligations under the loan documents. As a result of Stonemill’s default status, the Bank’s obligation to release the Hamilton Mill Property for $192,124.41 did not arise. For purposes of the release, the loan documents did not require the Bank to make any election or provide any notice to Stonemill regarding its default status. Therefore, the Bank did not wrongfully refuse to release the Property for that amount, and the trial court did not err in granting the Bank’s summary judgment motion.

Judgment affirmed.

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

       References to the Bank and Stonemill herein include predecessors party to the loan agreements.

       Arelated appeal was dismissed by this Court in Flanigan v. RBC Bank (USA) (Inc.), 309 Ga. App. 499 (711 SE2d 63) (2011).

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

       See Duncan v. Lagunas, 253 Ga. 61, 63-64 (2) (316 SE2d 747) (1984) (“[W]here the parties agree that in the event of default the creditor ‘may declare’ acceleration ‘without notice’ to the debtor,. . . notice of the declaration of acceleration need not be communicated to the debtor.”) (punctuation omitted).

       Cf. Martin v. Hamilton State Bank, 314 Ga. App. 334 (723 SE2d 726) (2012) (bank’s pursuit of a specific remedy did not waive its right to pursue other remedies because of nonwaiver provision).

       The extension agreement explicitly stated that all terms and conditions of the loan remained in full effect, and the Bank did not waive any of its rights or remedies under the loan documents.

       See generally Cochran v. Teasley, 239 Ga. 289, 291-292 (4) (236 SE2d 635) (1977) (“A borrower is not entitled to specific performance of a release provision in a deed to secure debt unless he first pays or tenders to the lender the amount admittedly due.”). Holden v. Smith, 236 Ga. App. 205 (511 SE2d 569) (1999), relied upon by Stonemill, is inapposite. That case addressed a seller’s obligation under an installment contract to release property to a defaulting buyer upon payoff. The opinion addressed the seller’s (i.e., lender’s) ability to retain payments without conveying the property to the buyer. Here, the issue is the borrower’s ability to exercise the release provision, not the Bank’s ability to exercise an option under the loan documents. Under the terms of the loan documents in this case, the Bank had no obligation to perform absent Stonemill’s satisfaction of the conditions precedent.

       The record contains an unsigned letter from RBC extending the maturity date to December 15,2008, but pretermitting any evidentiary or contractual issues, we treat the letter as binding for purposes of our analysis.


text:
    A11A1891.
    A11A1968.
    KIRKLAND v. THE STATE. BAILEY v. THE STATE.
    (726 SE2d 644)
   Miller, Judge.

Following a joint jury trial, David L. Kirkland and Rickey Bailey were both convicted of armed robbery (OCGA § 16-8-41 (a)). Bailey was also convicted of aggravated assault (OCGA § 16-5-21 (a) (1)). Both appeal from the trial court’s denial of their respective motions for new trial.

In Case No. A11A1891, Kirkland contends that (i) the evidence was insufficient to sustain his conviction; (ii) the trial court erred in denying his challenges to the State’s four peremptory strikes under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986); (iii) the trial court erred in allowing the State to admit inadmissible hearsay; (iv) the trial court erred in admitting into evidence bloody money, clothing, and photographs; (v) the prosecutor impermissibly commented on his failure to testify at trial; (vi) the trial court violated the continuing witness rule by permitting trial witnesses’ written statements to go out to the jury during deliberations; (vii) the bailiff engaged in unauthorized communications with the jury during jury deliberations; and (viii) trial counsel provided ineffective assistance.

In Case No. A11A1968, Bailey contends that (i) the trial court erred in denying his Batson challenges; (ii) the prosecutor impermissibly commented on his failure to testify; and (iii) trial counsel was ineffective for failing to object to a violation of the continuing witness rule. Discerning no error, we affirm in both cases.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979); Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that on the night of August 29, 2007, the victim parked his vehicle in his driveway and was exiting his vehicle when Kirkland and Bailey approached him. Bailey hit the victim several times on the head with a gun, causing the victim to lose a considerable amount of blood. Fearful of being shot, the victim gave Kirkland and Bailey $216 in cash. After Kirkland and Bailey fled, the victim called the police.

Shortly thereafter, a police officer responding to the dispatch call spotted Kirkland and Bailey, both of whom matched the description given by the victim; the officer saw them enter a vehicle about a mile away from the scene of the robbery. The officer stopped the vehicle and approached Kirkland and Bailey. The officer observed that Kirkland and Bailey were sweating profusely. The officer questioned Kirkland and Bailey and asked them to exit the vehicle when they were unable to provide credible answers to his questions. When he got out of the vehicle, Kirkland fled into the nearby woods, dropping his cell phone in the process. The officer then arrested Bailey.

Using Kirkland’s cell phone, the investigating officer subsequently identified Kirkland. On the next day, the officer located Kirkland at a residence, hiding in a closet. At the time of his arrest, Kirkland had in his possession a bloody $100 bill, a denomination that had been stolen from the victim during the armed robbery.

Following both of their arrests, Kirkland and Bailey were read their Miranda rights and agreed to be interviewed by the investigating officer. Kirkland also gave a written statement. Both Kirkland and Bailey admitted to being with each other on the night of the robbery, denied any involvement in the offense, and repeatedly changed their version of events after the investigating officer was unable to confirm their alleged alibis. Additionally, in the course of his investigation, the investigating officer spoke to Bailey’s former jail-mates, who stated that Bailey admitted that he robbed and assaulted the victim.

Case No. AllA1891

1. Kirkland challenges the sufficiency of the evidence identifying him as a party to the crime. Notwithstanding Kirkland’s contentions, the identification evidence is sufficient, and therefore, his conviction was authorized.

At trial, the victim identified Kirkland as matching the description of one of the men who attacked him. See Ferguson v. State, 221 Ga. App. 415, 419 (2) (471 SE2d 528) (1996) (in-court identification of defendant as armed robber is direct evidence of guilt). Moreover, Bailey, who was tried with Kirkland, admitted to others that he robbed and assaulted the victim. Kirkland admitted that he was with Bailey on the night of the offense and provided untruthful statements about his alleged alibi during the time of the offense. Moreover, Kirkland fled from the police officers as they initially attempted to arrest him. See Tauch v. State, 305 Ga. App. 643, 645-646 (1) (700 SE2d 645) (2010) (holding that the jury was entitled to consider a defendant’s flight from officers as evidence of his guilt). When he was arrested, Kirkland possessed a bloody $100 bill, which was among the denominations the victim provided to his assailants. The above evidence authorized the jury to exclude every reasonable hypothesis other than that Kirkland was a party to the crime of armed robbery. See Hart v. State, 305 Ga. App. 259, 262 (1) (a) (699 SE2d 445) (2010) (“Whether every reasonable hypothesis except that of the guilt of the defendant has been excluded is a question for the jury.”) (punctuation omitted); Millender v. State, 286 Ga. App. 331, 331-332 (1) (648 SE2d 777) (2007) (holding that defendant’s acts of standing nearby as co-defendant robbed and threatened victim, and his subsequent flight with co-defendant was sufficient to convict defendant as a party to armed robbery).

2. Kirkland contends that the trial court erred in denying his Batson challenges to the prosecutor’s peremptory strikes of four African-American jurors. We disagree.

The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.

(Citations and punctuation omitted.) Kimble v. State, 301 Ga. App. 237, 245 (6) (687 SE2d 242) (2009). “A trial court’s finding as to whether the opponent of a strike has proven discriminatory intent is entitled to great deference and will not be overruled unless clearly erroneous.” (Citation omitted.) Chandler v. State, 281 Ga. 712, 715 (3) (642 SE2d 646) (2007).

Here, Kirkland raised a Batson challenge when the State used its peremptory strikes against four African-American jurors from the jury pool without striking any white jurors. The trial court did not determine whether Kirkland made a prima facie showing of racial discrimination; instead, it proceeded to an evaluation of the State’s explanations for its strikes. After the State offered its race-neutral reasons, the trial court denied Kirkland’s Batson motion.

Since the trial court proceeded directly to an evaluation of the State’s explanations for its strikes, the issue of a prima facie showing is moot. Chandler, supra, 281 Ga. at 715-716 (3). With respect to the State’s explanations, the State stated that it used its first strike against a juror who stated that she would need forensic evidence in order convict a defendant. The State stated that it struck the second juror in question because the juror had once hired Kirkland’s attorney, knew the defendants, and answered that he would also need physical evidence to convict a defendant. The State’s third strike was based upon the juror’s husband having recently been tried for murder, in addition to her affirmative response that she needed to see forensic evidence. The State used its fourth strike against an alternate juror because she also stated that forensic evidence would be helpful to establish a defendant’s guilt in this case. As the State’s explanations were “based on something other than the juror’s race,” the trial court correctly found that each of these reasons was race-neutral. See Bass v. State, 271 Ga. App. 228, 231-232 (4) (609 SE2d 386) (2005) (juror’s familiarity with accused was a race-neutral explanation to strike); Daniels v. State, 276 Ga. 632, 634 (3) (580 SE2d 221) (2003) (African-American jurors who said that they had a close friend or family member falsely accused of a crime were properly struck from jury); Chunn v. State, 210 Ga. App. 209, 210 (2) (435 SE2d 728) (1993) (reasonable suspicion about prospective juror’s impartiality may justify exercise of peremptory strike). Kirkland failed to rebut the State’s explanations, and we cannot say that the State’s reasons for exercising its peremptory strikes were “so implausible or fantastic that it render [ed] the explanation [s] pretextual.” (Citation and punctuation omitted.) Bell v. State, 306 Ga. App. 853, 858 (1) (703 SE2d 680) (2010). Accordingly, the trial court did not err in denying the Batson challenges.

3. Kirkland next contends that the trial court erred by admitting testimony that constituted hearsay and violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. However, the record shows that Kirkland raised no objection to the trial testimony at issue. Absent an objection, his hearsay and Confrontation Clause arguments are waived. See Kimble, supra, 301 Ga. App. at 243 (3).

4. Kirkland also enumerates as error the trial court’s decision to admit into evidence bloody clothes, the bloody $100 bill, and photographs of blood. When the State moved to admit these items into evidence, however, Kirkland did not object. As such, Kirkland’s failure to object waives any error regarding the admission of the State’s evidence at issue. See Frazier v. State, 278 Ga. 297, 299 (7) (602 SE2d 588) (2004).

5. Kirkland contends that the prosecutor made improper comments regarding his failure to testify at trial. We disagree.

In her closing argument, the prosecutor stated:

[W]hat did [the investigating officer] tell you? He told you that he was doing his job by trying to follow up [on] any alibis that [Kirkland and Bailey] might have, not in an attempt to implicate them as they wanted you to believe, but in an attempt to see if they could be exonerated. He interviewed the defendants because he was doing his job. He checked out the defendants’ alibis because he wanted the same thing that you and I want, ladies and gentlemen, to catch the people who did this robbery and to get them off the streets and get the right people.
In [Kirkland’s and Bailey’s] discussions with [the investigating officer], if the defendants were truly innocent men facing time on charges as serious as these ones, don’t you think they would’ve wanted the same thing, to prove to [the investigating officer] that they did not do this so that....

In order for the prosecutor’s remarks to constitute prosecutorial misconduct, there must be “a finding that the prosecutor’s manifest intent was to comment on [the defendant’s] failure to testify or that the jury would naturally and necessarily understand the remarks as a comment on [the defendant’s] silence.” (Citation omitted.) Wellons v. State, 266 Ga. 77, 86 (10) (463 SE2d 868) (1995). When we read the challenged language in context, we conclude that the prosecutor’s remark was not intended to comment on Kirkland’s decision not to testify and was unlikely to be interpreted by the jury as a comment on his silence at trial; the remarks were instead intended to address, albeit inartfully, Kirkland’s untruthful statements about his alibis. Moreover, notwithstanding Kirkland’s claims otherwise, we do not find that the prosecutor shifted the burden of proof when commenting on Kirkland’s failure to substantiate his alibis. Cf. Scott v. State, 274 Ga. 476, 479 (4) (554 SE2d 488) (2001) (at trial, prosecutor could comment on defendant’s failure to substantiate his post-arrest statements regarding alibis); James v. State, 204 Ga. App. 723 (1) (420 SE2d 383) (1992) (defendant’s post-arrest statements were properly in evidence and thus were suitable subject for closing argument). Furthermore, the trial court gave a curative instruction, and therefore, there is no reversible error. See Wellons, supra, 266 Ga. at 86 GO).

6. Kirkland next contends that the bailiff impermissibly communicated with the jury when the foreperson told the bailiff that the jury was deadlocked. Kirkland did not inquire into this communication or otherwise object to it at the time it occurred; nor did he raise the issue in his motion for new trial. Since Kirkland failed to timely raise an objection to the bailiffs communication with the jury, he has waived any error. Herrington v. State, 243 Ga. App. 265, 266 (1) (533 SE2d 133) (2000).

7. Kirkland contends that the trial court violated the continuing witness rule by permitting written statements admitted into evidence — including the victim’s and Kirkland’s statements to the police — to go out to the jury while it deliberated. The record shows, and Kirkland concedes, that the trial court noted it would not allow the written statements to go to the jury absent the parties’ consent. Kirkland expressly agreed to allow the statements at issue to go to the jury. As a result, Kirkland “cannot complain of error that his own conduct aided in causing.” (Punctuation and footnote omitted.) McConnell v. State, 263 Ga. App. 686, 687 (2) (589 SE2d 271) (2003).

8. Kirkland also enumerates as error that he was denied effective assistance of counsel. We disagree.

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both that trial counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Fosselman v. State, 306 Ga. App. 84, 85 (2) (701 SE2d 559) (2010).

If [a defendant] fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Punctuation and footnotes omitted.) Fosselman, supra, 306 Ga. App. at 85 (2).

Kirkland asserts numerous grounds in which his counsel was allegedly ineffective. However, Kirkland did not assert these as grounds for ineffective assistance of counsel in his motion for new trial, his amended motion for new trial, or at the motion for new trial hearing. “Thus, such allegations of ineffectiveness are deemed waived because a defendant is obligated to raise all allegations of ineffectiveness of counsel at the earliest practicable moment.” (Citations and punctuation omitted.) Bagwell v. State, 270 Ga. 175, 179 (1) (f) (508 SE2d 385) (1998); see Phillips v. State, 284 Ga. App. 224, 231 (4) (a) (644 SE2d 153) (2007) (deeming specific claim of ineffective assistance to be waived where defendant failed to raise the specific ground in his motion for new trial or in the hearing on the matter). Therefore, we will not consider Kirkland’s additional ineffectiveness claims on appeal. See Bagwell, 270 Ga. at 179 (1) (f).

Case No. AllA1968

9. Bailey contends that the trial court erred in denying his Batson challenges to the State’s peremptory strikes of four African-American jurors. Bailey’s claim is identical to the claim raised by Kirkland, which we addressed and rejected in Division 2 above. Accordingly, we conclude Bailey’s contention is without merit.

10. Bailey also contends that the prosecutor made improper comments regarding his failure to testify. Bailey raises the same argument as Kirkland, which we addressed and rejected in Division 5 above. As a result, there is no merit to Bailey’s claim.

11. Bailey also contends that his trial counsel was ineffective for allowing the written statements of the victim, Kirkland, and Bailey’s former jailmate to go out to the jury in violation of the continuing witness rule.

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

Decided March 26, 2012.

Kimberly L. Copeland, for appellant (case no. A11A1891).

Robbin Shipp, for appellant (case no. A11A1968).

S. Hayward Altman, District Attorney, John A. Fitzner III, Mary K. McKinnon, Assistant District Attorneys, for appellee.

(Citation omitted.) Decapite v. State, 312 Ga. App. 832, 835 (3) (720 SE2d 297) (2011).

Assuming that Bailey’s counsel was deficient for allowing the written statements to go out with the jury, Bailey cannot meet his burden to show that there is a reasonable probability that the trial result would have been different if not for counsel’s deficiency. At trial, Bailey’s former jailmate read from his written statement that Bailey admitted to robbing and assaulting the victim. This witness’s testimony was cumulative of the testimony given by another one of Bailey’s former jailmates. The victim also read from his written statement. The substance of Kirkland’s written statement was introduced by the investigating officer; Kirkland’s statements were only that he and Bailey were together on the night of the offense, which was cumulative of other evidence in the record.

In light of the strength of the evidence that was properly presented to the jury, we conclude that [Bailey] has not shown that a reasonable probability exists that, but for the jury having [the written statements] during its deliberations, the outcome of his trial would have been different.

(Citation and punctuation omitted.) Decapite, supra, 312 Ga. App. at 836 (3) (counsel was not ineffective for permitting a search warrant and affidavit to go out to the jury where the affiant testified at trial, was subject to extensive cross-examination, and his testimony was cumulative of other evidence); cf. Kent v. State, 245 Ga. App. 531, 533 (3) (538 SE2d 185) (2000) (allowing victim’s statement to go out to the jury violated the continuing witness rule, but the error was harmless since the evidence it contained was brought out during trial and evidence of guilt was overwhelming).

Judgments affirmed.

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

       In his brief, Kirkland seeks to expand his enumerations of error to include a claim that the verdict was against the weight of the evidence and contrary to principles of equity and justice. However, “an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.” (Citation and footnote omitted.) Tucker v. State, 299 Ga. App. 278, 280 (2) (683 SE2d 356) (2009). Moreover, Kirkland’s arguments may only be made to a trial court, not to this Court, as we do not have the discretion to grant a new trial on these grounds. Lewis v. State, 304 Ga. App. 831, 833 (1) (698 SE2d 365) (2010). We will only reverse the denial of a motion for new trial on evidentiary grounds when there is no evidence to support the verdict. Souder v. State, 301 Ga. App. 348, 352 (3) (687 SE2d 594) (2009).

       Bailey’s statements, standing alone, did not directly inculpate Kirkland in the charged crimes, and therefore the introduction of these statements did not violate Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). See Daniel v. State, 285 Ga. 406, 408 (3) (b) (677 SE2d 120) (2009); see also Smith v. State, 308 Ga. App. 190, 190 (707 SE2d 135) (2011) (“Bruton . . . only excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and Bruton is not violated if a co-defendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.”) (punctuation and footnote omitted).

       Kirkland does not identify what photographs should have been excluded. In addition to the State’s photographs, Kirkland also introduced several images of the bloodied victim taken when the victim was at the hospital. However, to the extent Kirkland argues that the trial court erred by admitting the photographs he proffered, Kirkland “cannot complain of error that his own conduct aided in causing.” (Punctuation and footnote omitted.) McConnell v. State, 263 Ga. App. 686, 687 (2) (589 SE2d 271) (2003).

       The prosecutor also argued:
      Getting back to the testimony of the [investigating officer], he told you about the circumstances in which he interviewed... Kirkland and [Bailey]. He told you that the statements they gave to him were freely and voluntarily given. And he also told you that the statements that they gave to him were lies.

       Kirkland contends that trial counsel was ineffective for (i) failing to object to the introduction of bloody clothing and money, as well as photographs depicting blood; (ii) failing to request a severance; (iii) failing to object to hearsay testimony; (iv) permitting a violation of the continuing witness rule without properly advising Kirkland about its danger; (v) failing to inquire into the bailiff s communication with the jury; and (vi) failing to argue “mere presence” as a defense.

       At the motion for new trial hearing, Kirkland argued only that his trial counsel was ineffective for failing to object on the grounds of relevance to the testimony of one forensic biologist. However, Kirkland does not raise this claim on appeal.


text:
    A11A2073.
    TIDWELL et al. v. HINTON & POWELL et al.
    (726 SE2d 652)
   DOYLE, Presiding Judge.

This interlocutory appeal arises from the trial court’s exclusion of expert testimony in a legal malpractice action. For the reasons that follow, we reverse and remand.

Following the death of their son on a Coweta County school bus, Bobby and Lillie Tidwell hired attorney Jack Hinton of Hinton & Powell (“Hinton”) to represent them in a wrongful death action. Hinton filed suit against the Coweta County Board of Education, but later discovered that only the school district — not the board of education — has the capacity to be sued. Rather than adding the school district as a defendant, Hinton dismissed the suit. A few months later, he filed a renewal action against the school board, then tried to add the school district as a party. By that point, however, the statute of limitation had run against the school district, which was never named in the original action, and the Tidwells’ wrongful death claim was barred.

The Tidwells subsequently sued Hinton for legal malpractice. Hinton admitted that he acted negligently in the wrongful death case, but challenged the allegation that his negligence proximately caused any damage to the Tidwells. To prove causation, the Tidwells planned to offer expert testimony from an experienced attorney that “to a reasonable degree of professional certainty, a procedurally correct presentation of the facts would have resulted” in a plaintiffs’ verdict exceeding $500,000.

Thereafter, Hinton filed a motion in limine to exclude this testimony before trial, arguing that it was unnecessary and went to the ultimate issue in the case. The trial court agreed. The court concluded “that in a legal malpractice action[,] the ‘case-within-a-case’ mechanism allows jurors to answer the questions of whether negligence by an attorney has proximately caused damage to the plaintiff and[,] if so, how much damage it caused.” The court also found that expert testimony regarding what a jury would have done in the wrongful death case amounted to “rank speculation and conjecture.” Ultimately, the trial court determined that “it would be improper to allow [the Tidwells’ expert] to offer an opinion on whether the j ury would have returned a verdict in favor of [the] Plaintiffs if the underlying case had been tried or to offer an opinion on what the size of any verdict would have been.” The trial court excluded the testimony, but issued a certificate of immediate review, and this interlocutory appeal followed.

In a legal malpractice action, the plaintiff must establish three elements: (1) that the defendant attorney was employed by the plaintiff; (2) that the attorney failed to exercise ordinary care, skill, and diligence; and (3) that the lack of care proximately caused the plaintiff damage. As noted above, Hinton does not dispute the first two elements, leaving for resolution at trial only the question of proximate cause. The third element requires evidence that “but for the attorney’s error, the outcome would have been different.” The Tidwells sought to prove the required causation and harm through expert legal testimony.

Generally, a trial court has broad discretion in deciding the admissibility of expert testimony. But in this case, the court did not evaluate the merits of the proffered opinion evidence. Instead, it simply concluded that as a matter of law expert causation testimony is categorically unnecessary and improper in a legal malpractice action, and we therefore review for plain legal error. In Johnson v. Leibelf, this Court held that

expert testimony is admissible to prove proximate cause in those legal malpractice cases in which a lay person could not competently determine whether or not the negligence of the attorney proximately caused the plaintiffs damages, i.e., whether or not the plaintiff would have prevailed in the underlying action. . . . [T]his holding comports with the pattern jury instruction in legal malpractice cases entitled, “Skill Required of Attorney,” which provides in pertinent part that “A client suing his/her attorney in a case not only must prove by expert legal testimony that the claim was valid and would have resulted in a judgment in the client’s favor, but also that the judgment would have been collectible in some amount. . . .” Then, . . . the defendant may present opposing expert legal testimony, leaving the jury to evaluate the credibility of the experts and to weigh their testimony accordingly.

Decided March 26, 2012

Joseph H. King, Jr., for appellants.

James M. Poe, for appellees.

Accordingly, based on the foregoing, we reverse the trial court’s grant of Hinton’s motion in limine to exclude expert testimony and remand for further proceedings in light of the ruling in Johnson.

Judgment reversed and case remanded.

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

       See generally Tidwell v. Coweta County Bd. of Ed., 240 Ga. App. 55 (521 SE2d 889) (1999).

       See Szurovy v. Olderman, 243 Ga. App. 449, 451 (530 SE2d 783) (2000).

       (Punctuation omitted.) Id. at 452.

       See Blackwell v. Potts, 266 Ga. App. 702, 705 (1) (598 SE2d 1) (2004).

       See Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

       307 Ga. App. 32 (703 SE2d 702) (2010) cert. granted, Leibel v. Johnson, 291 Ga. 180 (728 SE2d 554) (2012).

       (Footnotes and emphasis omitted.) Id. at 38-39 (2).