author: Peterson, Judge.

text:
    A16A0398.
    SHOENTHAL et al. v. SHOENTHAL et al.
    (788 SE2d 116)
   Peterson, Judge.

Rachel and Rebecca Shoenthal (collectively, “Plaintiffs”), daughters of the late Judge Elliot Shoenthal, filed a complaint against the DeKalb County Employees Retirement System Pension Board, members of the Board (collectively, “the Board”), and Fran Shoenthal, alleging that the Board wrongfully disbursed and Fran improperly claimed their deceased father’s entire pension benefits when their father had designated that benefits be paid to them. The trial court granted the Board’s and Fran’s motions for judgment on the pleadings on the ground that Judge Shoenthal did not provide notice to the Board of a change in beneficiaries. On appeal, Plaintiffs argue that the trial court erred (1) by interpreting the DeKalb County Pension Code (the “Pension Code”) to require an employee personally to provide notice of the change in beneficiaries; (2) by failing to use its equitable powers to effectuate Judge Shoenthal’s expressed intent to change beneficiaries; (3) by failing to consider the merits of their individual claims; and (4) by considering matters outside the pleadings. We affirm because the trial court correctly determined that Judge Shoenthal did not provide written notice to the Board as required by the Pension Code, and thus did not effectuate the change in beneficiaries upon which Plaintiffs’ claims rest.

“A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment.” Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87 (1) (764 SE2d 398) (2014) (citation and punctuation omitted). On appeal, we construe the pleadings in the light most favorable to the appellants, drawing all reasonable inferences in their favor. Alexander v. Wachovia Bank, N.A., 305 Ga. App. 641, 641 (700 SE2d 640) (2010). All allegations of the moving party that have been denied are taken as false, while all well-pleaded material allegations of the opposing party’s pleadings are taken as true. Id.

So viewed, the pleadings show that Judge Shoenthal was married to Fran, and they had two daughters, the plaintiffs. Judge Shoenthal was employed by DeKalb County from July 1998 until he died on December 1, 2013, as a result of complications from a back surgery he had on November 27, 2013.

On October 25, 2013, about a month before his scheduled surgery, Judge Shoenthal changed the beneficiaries on employer-provided life insurance policies by reducing Fran’s share of the benefit from 100 percent to 50 percent and designating that each of the Plaintiffs receive 25 percent of the benefit. On the morning of November 18, 2013, Judge Shoenthal e-mailed the clerk of the Board, inquiring about changing the beneficiaries on his pension plan. Specifically, Judge Shoenthal asked, “[wjhat happens to my pension if I die — does it go to my wife? Can I split it between my wife and my children? Second, if I’m able to split it, what do I need to do to modify the beneficiary?” The clerk responded on November 20, 2013, informing Judge Shoenthal that he couldchange designated beneficiaries by completing a form available on a county website. Judge Shoenthal replied that he would complete a new beneficiary form.

That same month, Judge Shoenthal told his sister that he had revised his will to reflect his “intention to leave everything to [Plaintiffs] and little to nothing to Fran.” At a November 23 lunch, Judge Shoenthal told his sister that he was in the process of changing the beneficiary designation for his pension. On November 25, 2013, Judge Shoenthal completed and signed the change-of-beneficiary form, designating the Plaintiffs as the sole beneficiaries. Judge Shoenthal also handwrote, “I want each of my children to receive 50% of my pension.” Attached to the change-of-beneficiary form was a Post-It note containing the Board’s address. Judge Shoenthal placed the form on or in his desk. Over the next two days, Judge Shoenthal worked in his office and handled repairs to his car.

Judge Shoenthal had surgery on November 27, was released from the hospital the next day, and died from an embolism on December 1, 2013. Judge Shoenthal never mailed or delivered the change-of-beneficiary form.

Around the time Judge Shoenthal was released from the hospital, Fran discovered that he had changed or intended to change the beneficiaries on his pension plan. About a week after Judge Shoen-thal’s death, Fran submitted an application to receive Judge Shoen-thal’s pension benefits. Later that month, the change-of-beneficiary form was found on or in Judge Shoenthal’s desk, and Fran was told about it. On January 1, 2014, the Board began sending monthly pension payments to Fran. A few days later, one of the Plaintiffs hand-delivered the signed change-of-beneficiary form to the Board and requested that it be honored. The Board informed Plaintiffs that it would not recognize the change-of-beneficiary form, but did not provide a reason. Plaintiffs then filed this lawsuit.

In their suit, Plaintiffs sought a declaratory judgment that they were the lawful beneficiaries of Judge Shoenthal’s pension benefits. Plaintiffs also requested mandamus to compel the Board to stop making payments to Fran and to begin making payments to Plaintiffs, and sought damages on the theory that the Board had breached Judge Shoenthal’s employment contract, of which his pension benefits were a part. Plaintiffs raised claims of fraud, conversion, and money had and received against Fran, and sought attorneys’ fees against all the defendants.

The Board moved for judgment on the pleadings, arguing that § 908 of the Pension Code unambiguously provided that changes to designated beneficiaries must be in writing and must be presented to the Board by the participant. The Board also argued that, even if the relevant code section was ambiguous, the trial court was required to defer to the Board’s interpretation of that section as mandating the participant to present the form because such an interpretation was a reasonable construction. Fran also moved for judgment on the pleadings and adopted the Board’s arguments. The trial court granted the Board’s and Fran’s motions, concluding that the completed change-of-beneficiary form did not constitute written notice from Judge Shoenthal, because neither he nor someone acting at his direction ever mailed or hand-delivered the form to the Board. The trial court also concluded that the completed form never converted to written notice because it was not hand-delivered or placed in the mail by Judge Shoenthal or by a third party at his direction. This appeal followed.

1. Trial court correctly determined that Judge Shoenthal did not provide written notice, as required by the Pension Code.

Plaintiffs argue that the trial court erred in granting judgment on the pleadings because it misconstrued § 908 of the Pension Code to require Judge Shoenthal actually and personally to deliver notice ofthechange-of-beneficiaryform. Plaintiffs argue that § 908 requires the Board to change designated beneficiaries upon receiving any written notice, and nothing in the code section indicates that the Board must receive such notice directly from the participant. We disagree.

The grant of a motion for judgment on the pleadings is proper where there is a complete failure to state a cause of action and the allegations make clear that the opposing party would not be entitled to judgment under any state of provable facts. See Holland Ins. Grp., LLC v. Senior Life Ins. Co., 329 Ga. App. 834, 836 (1) (766 SE2d 187) (2014). Accepting Plaintiffs’ allegations as true, Plaintiffs would show that Judge Shoenthal failed to send to the Board the completed change-of-beneficiary form prior to his death, and one of the Plaintiffs hand-delivered the form to the Board about a month after his death. Under these allegations, Plaintiffs failed to establish that the Board erred in declining to designate them as the beneficiaries of Judge Shoenthal’s pension benefits. Because all of their claims rest on the presumption that they — not Fran — are the true beneficiaries, judgment on the pleadings is appropriate.

Regulations of a benefit association that provide the method of change of beneficiary must be complied with by the plan participant to make the change effectual, and the failure to comply with such regulations renders ineffectual an attempt to change the beneficiary Faircloth v. Coleman, 211 Ga. 356, 359 (86 SE2d 107) (1955). Section 908 of the Pension Code pertinently provides:

All participants shall, on a form provided for that purpose, designate a person or persons to receive the benefits payable in the event of the death of the participant. Such person or persons shall be the beneficiary of the participant.
The participant may from time to time change the beneficiary by written notice to the pension board, and upon the receipt by the pension board of such change, the rights of all previously designated beneficiaries to receive any benefit under this plan shall cease.

Pension Code § 908(b)(9)(A).

The Pension Code is part of the “complete recodification of the ordinances of DeKalb County, Georgia[.]” See Code of DeKalb County as revised, 1988 (preface). Construction of an ordinance is a question of law, generally subject to canons of statutory construction. DeKalb Cty. v. Post Apartment Homes, L.P., 234 Ga. App. 409, 411 (1) (506 SE2d 899) (1998); City of Buchanan v. Pope, 222 Ga.App. 716, 717 (1) (476 SE2d 53) (1996). When we consider the text of a statute or ordinance, we must afford the text its “plain and ordinary meaning,” view the text in the context in which it appears, and read it in its “most natural and reasonable way, as an ordinary speaker of the English language would .’’ Deal v. Coleman, 294 Ga. 170, 172-73(1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted); see also Daniel Corp. v. Reed, 291 Ga. 596, 597 (732 SE2d 61) (2012) (courts attribute the “ordinary, logical, and common meanings” of words in an ordinance) (citation and punctuation omitted).

Here, the trial court correctly determined that Judge Shoenthal did not comply with Pension Code § 908(b)(9)(A) to effectuate a change in designated beneficiaries. That section requires that the participant “change the beneficiary by written notice to the pension board[.]” The requirement that notice be “to the pension board” necessarily requires communication of the notice to the Board. Although Judge Shoenthal completed a Board form to change the designated beneficiaries, it is undisputed that he left the form on or in his desk. Although the statute does not specify how a form must be delivered to the Board — whether by fax, e-mail, regular mail, or hand-delivery — the statute clearly requires some method of delivery in order to provide “notice to the [Board]Indeed, the very next clause predicates effectiveness of the change upon receipt of the written notice by the Board. Failure to deliver the completed document does not constitute written notice to the intended recipient.

Judge Shoenthal’s completion of the change-of-beneficiary form may well evidence his intent to change beneficiaries. On the other hand, his failure to deliver the document may also be evidence that he changed his mind about changing beneficiaries. We have no way of really knowing Judge Shoenthal’s true intent, but we can say with certainty that his failure to send the document to the Board meant that he did not “change the beneficiary by written notice to the pension board[.]”

Plaintiffs argue that the Board nonetheless received written notice when one of the Plaintiffs hand-delivered the note after Judge Shoenthal’s death. But, Plaintiffs do not allege that Judge Shoenthal directed them to do so. Nor do Plaintiffs allege that Judge Shoenthal acted in a way so as to make the Board believe that Plaintiffs had the authority to submit the form on Judge Shoenthal’s behalf. Thus, there are no allegations that Plaintiffs were acting as Judge Shoen-thal’s agents in delivering the change-of-beneficiary form. And even if they did allege an agency relationship, any agency to deliver the form was terminated upon Judge Shoenthal’s death, well before one of the Plaintiffs delivered the form to the Board. See Stinson v. Gray, 232 Ga. 542, 544 (3) (207 SE2d 506) (1974) (“[A]ny agency created by [instructions to deliver a deed to the grantees after the grantor’s death] was revoked by the death of the grantor, and any authority to deliver the deed was thus terminated.”) (citation omitted). Because Judge Shoenthal did not give written notice to the Board of his desire to change beneficiaries and Plaintiffs had no authority to provide notice after his death, Judge Shoenthal did not effectively change his beneficiaries.

2. Plaintiffs’ citation of authority does not compel a different result.

(a) Plaintiffs first argue that the trial court could not award judgment on the pleadings based on Greater Georgia Life Ins. Co. v. Eason, 292 Ga. App. 682 (665 SE2d 725) (2008). In Greater Georgia Life, the employer-provided life insurance plan had the decedent’s son listed as the beneficiary, but the decedent’s wife produced a “yellow carbon copy” of a form naming her as the beneficiary. Id. at 683-84. This Court reversed the trial court’s grant of summary judgment to the wife on her claim that she was the beneficiary, concluding that there were questions of material fact as to whether the decedent formally requested a change of beneficiaries from his son to his wife because the original request form was missing and there was evidence that the employer never received that form. Id. at 687 (1) (b).

Plaintiffs argue that because this Court in Greater Georgia Life found that the evidence was sufficient to withstand a motion for summary judgment, their allegations are sufficient to withstand dismissal as well. But, this case is in stark contrast to Greater Georgia Life, where there was a question of fact as to whether the employer received a change-of-beneficiary form because the wife had a carbon copy of the form but the employer had no record of the original. Here, it is undisputed that the only copy of the form remained with Judge Shoenthal until his death, and he did not provide any written notice to the Board. Thus, Greater Georgia Life has no application here.

(b) Plaintiffs also rely on Westmoreland v. Westmoreland, 280 Ga. 33 (622 SE2d 328) (2005), for the proposition that when an employee does everything he can to effectuate a change of beneficiary of an employee benefit plan, the beneficiary plan would take effect even though the employee died prior to full completion of the change. Westmoreland, however, does not apply here because Judge Shoen-thal did not do “substantially all that [was] required of him” or “all that he [was] able to do.” Id. at 34.

In Westmoreland, the decedent had asked a human resources employee for forms to change the beneficiary on all of his benefits, he completed all forms given to him, and “the only reason he did not complete the form relating to the [retirement] plan at issue is because the human resources employee mistakenly never gave it to him.” Id. at 33-34. The employer filed an interpleader action in a dispute between the parties who claimed to be the beneficiary. Id. at 34. In evaluating whether the trial court erred in using its equitable powers to change the beneficiary, our Supreme Court first noted that, although the regulations of a benefit association that provide the method of change of beneficiary must be complied with to make the change effectual, such regulations are made for the benefit and protection of the association. The Supreme Court held that, because the employer stood indifferently to the parties of the case, the trial court was authorized to use its equitable powers to determine which claimant should be designated the beneficiary Then, in evaluating whether the trial court properly exercised its equitable powers to change the beneficiary, the Supreme Court stated that if

the insured has done substantially all that is required of him, or all that he is able to do, to effect a change of beneficiary, and all that remains to be done is a ministerial action of the association, the change will take effect though the details are not completed before the death of the insured.

Id. at 34-35 (citations and punctuation omitted). The Supreme Court concluded that under the circumstances of that case, the trial court did not err in using its equitable powers in changing the beneficiary because, but for the human resources employee’s mistake, the decedent would have fully complied with the requirements to change the beneficiary. Id. at 35.

The facts of Westmoreland are materially different from those present here. Even if the trial court in this case could use its equitable powers to override the Board’s ordinances and regulations, the allegations show that Judge Shoenthal did not do all that he could to effect a change of beneficiaries. He completed the form two days before his surgery, and despite tending to other matters in his office and repairing his car before his surgery, he did not place the form in the mail or otherwise cause it to be delivered. Thus, Judge Shoenthal was not like the decedent in Westmoreland, because Judge Shoenthal did not do all that he could do and did not substantially comply with all he was required to do.

Plaintiffs insist that the pleadings (which we must take as true in this posture) state that Judge Shoenthal could not have delivered the form on the day he completed the form or the following day and, thus, he did all that he could to effectuate the change in beneficiaries. Plaintiffs point only to a paragraph in the complaint stating that on the day he signed the form, November 25, and on the following day, Judge Shoenthal was working in his office and attending to car repairs. But this paragraph does not support the inference Plaintiffs wish us to draw. Instead, it simply stands for the proposition that Judge Shoenthal elected to work in his office and attend to auto repairs instead of dropping the completed form in the mail. This is not doing all he could do.

Decided June 22, 2016.

Balch & Bingham, Christopher S. Anulewicz, Brooke W. Gram, for appellants.

Zimmerman & Associates, Barry L. Zimmerman, Bradford J. Zimmerman; Elarbee, Thompson, Sapp & Wilson, Stanford G. Wilson, R. Read Gignilliat, Richard M. Escoffery, for appellees.

Because the trial court correctly ruled that the Plaintiffs cannot show that they were the true beneficiaries, Plaintiffs’ claims for declaratory relief, mandamus, and breach of contract against the Board fail as a matter of law. Similarly, their claims for fraud, conversion, and money had and received against Fran also fail as a matter of law. Therefore, we need not address Plaintiffs’ argument that the trial court erred by failing to analyze independently each of these substantive claims, along with their derivative claim for attorneys’ fees.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       Plaintiffs’ prior appeal was dismissed because the Board’s cross-claim against Fran remained pending below and, thus, the trial court’s order granting judgment on the pleadings was not a final order subject to a direct appeal. See Shoenthal v. Shoenthal, 333 Ga. App. 729 (776 SE2d 663) (2015). Plaintiffs filed a new notice of appeal after the trial court dismissed the cross-claim and entered a final judgment.

       Plaintiffs separately argue that the trial court applied the wrong legal standard in reviewing the motions for judgment on the pleadings because it considered matters outside of the pleadings and commented on a lack of evidence to support Plaintiffs’ claims. In support of their argument, Plaintiffs rely on the trial court’s statement that “[t]here is no evidence to suggest that prior to Judge Shoenthal’s death, ... he directed Rachel F. Shoenthal to either hand-deliver or mail the [f]orm to the Board.” Our review of the trial court’s statement in context indicates merely that the court concluded (correctly) that Plaintiffs did not allege that Judge Shoenthal directed a third party to submit the form to the Board.

       “An agency relationship arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” Dunn v. Venture Bldg. Grp., Inc., 283 Ga. App. 500, 503 (1) (642 SE2d 156) (2007) (citation and punctuation omitted). “[TJhere may be apparent authority when the statements or conduct of the alleged principal reasonably cause the third party to believe that the principal consents to have the act done on his behalf by the purported agent.” Id. (punctuation omitted; emphasis in original).


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A16A0572.
    CITY OF TYBEE ISLAND v. HARROD.
    (788 SE2d 122)
   Rickman, Judge.

Following his arrest and conviction for public intoxication and disorderly conduct, Michael Harrod sued the City of Tybee Island for assault and battery and intentional infliction of emotional distress in connection with his arrest. A jury found against the City and in favor of Harrod and awarded him monetary damages. The City appeals the judgment entered on the jury verdict. For the reasons that follow, we remand this case to the trial court in order for it to determine the threshold issue of whether the City waived its sovereign immunity.

The City filed a motion for summary judgment contending, among other things, that Harrod’s claims were barred by sovereign immunity The trial court denied the motion, holding that “genuine issues of material fact” regarding whether the City waived sovereign immunity by its purchase of insurance through the Georgia Interlocal Risk Management Agency (“GIRMA”) precluded summary judgment. At the close of Harrod’s case, the City moved for directed verdict, again asserting sovereign immunity, and the trial court denied the motion after expressing its “inclination ... to let the jury decide” the factual issues surrounding sovereign immunity

The trial court erred in failing to decide the threshold legal issue as to whether the City was entitled to sovereign immunity

Sovereign immunity of a [municipality] is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court’s subject matter jurisdiction to try the case, and waiver of sovereign immunity must be established by the party seeking to benefit from that waiver; thus, [Harrod] had the burden of establishing waiver of sovereign immunity. . . . Jurisdiction of a court to afford the relief sought is a matter which should be decided preliminarily, at the outset. Jurisdiction either exists or does not exist without regard to the merits of the case. Thus, when a court either has or lacks subject matter jurisdiction, despite any conflict in the facts, the trial court should as a threshold issue determine its jurisdiction.

(Citations and punctuation omitted.) Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671-672 (1) (a) (570 SE2d 1) (2002).

We recognize that “this Court has consistently held that the purchase of a GIRMA coverage agreement as authorized by OCGA § 36-85-1 et seq., constitutes the purchase of liability insurance for purposes of the waiver of sovereign immunity, and does so to the extent of the liability coverage purchased.” (Citations and punctuation omitted.) Owens v. City of Greenville, 290 Ga. 557, 559 (3) (a) (722 SE2d 755) (2012). However, Harrod must still prove, and the trial court must determine, if the facts underlying his cause of action fell within the scope of coverage of the City’s GIRMA policy See CSX Transp. v. City of Garden City, 277 Ga. 248, 250 (2) (588 SE2d 688) (2003); see also Bd. of Regents of Univ. System of Ga. v. Daniels, 264 Ga. 328 (446 SE2d 735) (1994). We note that at no point in this Court or in the trial court did Harrod point to the specific contractual provision that he contends covers his claims.

By submitting issues of fact to the jury that necessitated resolution and a determination of jurisdiction by the trial court, “[t]he effect of the trial court’s ruling was to avoid its responsibility to decide the jurisdictional question.” (Citations omitted.) Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 843 (1) (392 SE2d 37) (1990). The trial court never resolved the issue of sovereign immunity or clarified its ruling prior to trial.

Decided June 22, 2016.

Oliver Maner, LLP, Patrick T. O’Connor, Paul H. Threlkeld, for appellant.

Savage, Turner & Pinckney, Robert B. Turner; Southeast Law, LLC, Ashleigh R. Madison, for appellee.

We must, therefore, vacate the judgment and remand for proceedings consistent with this opinion. See Derbyshire, 194 Ga. App. at 843 (1); see also Gonzalez v. Ga. Dept. of Transp., 329 Ga. App. 224, 225-226 (764 SE2d 462) (2014); Glass v. Gates, 311 Ga. App. 563, 573-574 (1) (716 SE2d 611) (2011). “If the court finds no jurisdiction as to [Harrod], the final judgment rendered against [him] must fall.” Derbyshire, 194 Ga. App. at 843 (1). If not, the trial court may reinstate the judgment. Either party may appeal the final ruling of the trial court.

Judgment vacated and case remanded.

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

       The trial court also denied the City’s renewed motion for directed verdict based on sovereign immunity at the close of the evidence. Nevertheless, in the absence of any discussion or acknowledgment that the issue was a legal one based solely upon a legal finding that Harrod’s claims fall within the policy coverage such that sovereign immunity was waived, we cannot conclude that the trial court’s decision amounted to entry of “an order deciding the issue of subject matter jurisdiction.” Dept. of Transp., 256 Ga.App. at 672 (1) (a). See also Derbyshire, 194 Ga. App. at 843 (1) (“[A] judgment based on an erroneous legal conclusion or theory is reversible error”).


author: DOYLE, Chief Judge.

text:
    A16A0404.
    PERRY GOLF COURSE DEVELOPMENT, LLC v. COLUMBIA RESIDENTIAL, LLC.
    (786 SE2d 565)
   DOYLE, Chief Judge.

In a business dispute, plaintiff Perry Golf Course Development, LLC (“Perry Golf”), appeals from the confirmation of an arbitration award in favor of defendant Columbia Residential, LLC (“Columbia”). Perry Golf contends that the superior court erred by compelling arbitration and confirming the award because (1) the arbitration provision enforced by the trial court was part of an agreement already deemed unenforceable as to another party, and (2) the parties had abandoned the agreement that contained the arbitration provision. For the reasons that follow, we affirm.

“Because the question of whether a valid and enforceable arbitration agreement exists represents a question of law, we review de novo a trial court’s order granting or denying a motion to compel arbitration.”

The relevant factual history is undisputed. In the mid 1990s, the Atlanta Housing Authority (“AHA”) sought to redevelop the Perry Homes public housing development. Perry Golf, Columbia, and Brock Built, LLC, formed an entity, Perry Homes Redevelopment, LLC (“PHR”), to bid on the redevelopment project, and PHR ultimately was awarded the contract by AHA. In 2001, PHR executed a revitalization agreement with AHA that laid out a general plan for the redevelopment.

In 2002, the three members of PHR executed an operating agreement that governed each party’s rights and obligations in furtherance of the redevelopment plan. The agreement outlined three main areas of obligations: development of a golf course by Perry Golf, development of multi-family housing by Columbia, and development of single-family housing by Brock Built. The agreement also contained a provision for dispute resolution allowing an aggrieved party to demand binding arbitration. That provision states as follows, in relevant part:

If any Dispute (as defined below) arises between the parties in relation to this Agreement. . . any party . . . may demand binding arbitration [after giving notice]. As used herein, “Dispute” shall include any difference, disagreement^] or failure to agree between the parties arising out of or in connection with this Agreement or any of the Project Documents including any question regarding the application, existence, validity, performance, withdrawal from or non-performance, or termination of this Agreement or any clause contained within this Agreement or any Project Document or any matter in any way connected with this Agreement or the rights, duties, or obligations of any party to this Agreement or any Project Document. Each Member hereby agrees that any unresolved Disputes shall be settled by means of arbitration .... The Members also agree that any award resulting from such Arbitration shall be final and binding upon them, with each Member agreeing to waive its right to contest the arbitration award in a court of law. . . .

After a dispute arose between Perry Golf and Brock Built, in May 2005, Perry Golf filed a demand for arbitration with Brock Built, which participated in the arbitration over its objection. The ensuing arbitration (“First Arbitration”) ultimately resulted in a ruling from the arbitrator that the “arbitration agreement is binding and valid on the parties,” but the project-related obligations in the operating agreement nevertheless were unenforceable as between Perry Golf and Brock Built based on the agreement’s lack of mutuality between the two.

This result was not challenged by any of the parties. Going forward, the parties agreed that their mutual authority with respect to PHR would be governed by the Georgia Limited Liability Company Act, even as they continued to perform the roles established by the original operating agreement to carry out the revitalization agreement between PHR and AHA.

As the housing portions of the project moved forward, progress on the golf course languished, and in 2006, PHR and AHA amended the revitalization agreement to eliminate the golf course feature of the project. As a result, Perry Golf believed it had been unfairly cut out of the project and filed the instant suit against AHA, Brock Built, and Columbia. Enumerating various claims including breach of contract and breach of fiduciary duty, Perry Golf alleged that the two other members of PHR wrongfully voted (by two to one majority vote) to remove the golf course from the plan, and that AHA and PHR wrongfully amended the revitalization agreement. AHA moved for a judgment on the pleadings, Columbia answered and moved to compel arbitration, Brock Built counterclaimed and brought third-party claims, and the trial court dismissed all claims against all parties. That order was appealed to this Court, which affirmed in part and reversed in part the dismissal, allowing certain claims to proceed, including alleged breach of fiduciary duty by both Brock Built and Perry Golf.

On remittitur, Columbia renewed its motion to compel arbitration of Perry Golf’s claims, and the trial court ordered the parties to binding arbitration. In 2015, the arbitrator entered an award favoring Columbia (“Second Arbitration”), and the trial court confirmed the award, giving rise to this appeal.

1. Perry Golf contends that the trial court erred by compelling arbitration because the operating agreement containing the arbitration clause was deemed to be unenforceable in the First Arbitration. Based on the scope of that proceeding, which did not include Columbia, we disagree.

Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Therefore, the question of arbitra-bility, i.e., whether an agreement creates a duty for the parties to arbitrate the particular grievance, is undeniably an issue for judicial determination.

“And the validity of an arbitration agreement is generally governed by state law principles of contract formation.”

Here, the arbitration clause is found in the operating agreement, which was the subject of the First Arbitration between Perry Golf and Brock Built. Perry Golf argues that the operating agreement is unenforceable, relying on the fact that the First Arbitration resulted in a finding that the operating agreement was unenforceable due to the lack of mutuality between Perry Golf and Brock Built.

As a threshold matter, we note that the First Arbitration did not include Columbia, the appellee in this case. Accordingly, to the extent that Perry Golf makes a collateral estoppel argument, the First Arbitration’s ruling does not bind Columbia here because it was not a party to the First Arbitration, and its obligations under the operating agreement were not the same as Brock Built’s. Therefore, the First Arbitration lacks the identity of issues and parties to be binding on Columbia now.

Next, with respect to the award itself, the arbitrator explicitly ruled that the arbitration clause encompassed the dispute at issue and was valid and binding, even though the arbitrator held that the operating agreement’s larger project obligations between Perry Golf and Brock Built were unenforceable (not void) due to the lack of mutuality. Therefore, the result of the First Arbitration was not that the arbitration clause itself was unenforceable — it was actually the opposite — nor did the First Arbitration hold that the operating agreement was entirely void. The First Arbitration merely addressed the enforceability of the substantive provisions of the operating agreement as between Perry Golf and Brock Built, and no ruling was made as to the enforceability of obligations as to the parties to this appeal.

Finally, pretermitting the enforceability of the substantive obligations between Perry Golf and Columbia, we note that the operating agreement contained the following severability clause: “If any term or provision of this Agreement is held illegal, invalid or unenforceable, such illegality, invalidity, or unenforceability will not affect the legality, validity or enforceability of the remainder of this Agreement.” “[WJhere the agreement is founded on a legal consideration containing a promise to do several things or to refrain from doing several things, and only some of the promises are illegal, the promises which are not illegal will be held to be valid.” Giving effect to the unambiguous severability clause, we conclude the mutual promises among all parties to forego litigation in court (and avoid the associated expense and delay) are not dependent on the enforceability of other alleged promises in the operating agreement. Accordingly, the First Arbitration award does not support Perry Golf’s argument that the arbitration clause is unenforceable here.

2. Perry Golf next argues that the arbitration clause is unenforceable because the parties abandoned the operating agreement when they agreed to conduct themselves according to the Georgia Limited Liability Company Act. This argument is belied by the subsequent conduct of the parties and the broad scope of the arbitration clause.

It is undisputed that the parties to the agreement endeavored to continue their roles to honor the overall development process contemplated by the revitalization agreement between PHR and AHA, which agreement was untouched by the First Arbitration. The arbitration clause applies to disputes in “any matter in any way connected with this Agreement or the rights, duties[,] or obligations of any party to this Agreement or any Project Document.” The Project Documents include the operating agreement, the revitalization agreement executed between AHA and PHR, and “each other agreement and instrument contemplated [in the operating agreement] or entered into by” PHR in furtherance of the development project. The basis of the dispute was the amendment of the revitalization agreement between AHA and PHR by removing the golf course from the planned project. Thus, it is clear that the subject matter of the dispute falls squarely within that contemplated by the arbitration clause.

Further, with respect to disputes arising after termination of the contract, the arbitration clause contains no limitation on the time frame of disputes that are subject to arbitration. Under OCGA § 9-9-3, “[a] written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit any controversy thereafter arising to arbitration is enforceable . .. .” The arbitration clause applies to disputes in “any matter in any way connected to” the project documents, including the revitalization agreement. This reflects an intent by the parties to arbitrate project issues broadly. “[I]n the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract.” When interpreting similarly broad language, this Court has held that disputes arising from conduct after the termination of a contract can still be subject to an arbitration clause in the terminated contract. This was based on the fact that because the alleged wrongful conduct “touched” the contract, the contract’s broadly worded arbitration clause was given effect even after termination of the contract. Here, the underlying dispute arose from the amendment of the revitalization plan (a “Project Document” subject to the arbitration clause) and conduct that occurred both before and after the alleged termination of the operating agreement. The application of the broadly-worded arbitration clause to the subject matter of the operating agreement is consistent with the parties’ continued pursuit of the project. Under these circumstances, the trial court did not err by compelling arbitration and confirming the arbitrator’s award.

Decided June 9, 2016

Reconsideration denied June 23, 2016.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Norman S. Fletcher, Mark M. J. Webb, Lee B. Carter, for appellant.

Hun ter, Maclean, Exley & Dunn, Christopher W. Phillips; Crader Law Firm, E. Galen Crader, for appellee.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       (Punctuation omitted.) AAA Restoration Co. v. Peek, 333 Ga. App. 152 (775 SE2d 627) (2015).

       (Emphasis supplied.)

       OCGA § 14-11-100 et seq.

       See Perry Golf Course Dev. v. Housing Auth., 294 Ga. App. 387 (670 SE2d 171) (2008).

       See id.

       See id. at 393 (6) (c), 396 (7) (a).

       (Punctuation omitted.) Pickle v. Rayonier Forest Resources, 282 Ga. App. 295, 296 (638 SE2d 344) (2006).

       (Punctuation omitted.) McKean v. GGNSC Atlanta, 329 Ga. App. 507, 509 (1) (765 SE2d 681) (2014).

        See Pike County v. Callaway-Ingram, 292 Ga. 828, 832 (2) (742 SE2d 471) (2013) (“The theory of collateral estoppel cannot apply because it addresses the re-litigation of an issue that has been adjudicated on the merits in another action involving the same parties or their privies.”). We need not decide whether the arbitration was an adjudication on the merits for purposes of collateral estoppel.

       See id.

       (Punctuation omitted.) Harris v. SAL Financial Svcs., 270 Ga. App. 230, 232 (606 SE2d 293) (2004).

       Cf. ISS Intl;. Svc. System v. Widmer, 264 Ga. App. 55, 61 (3) (589 SE2d 820) (2003) (“[WJhere the agreement is founded on a legal consideration containing a promise to do several things or to refrain from doing several things, and only some of the promises are illegal, the promises which are not illegal will be held to be valid.”).

       (Emphasis supplied.)

        Nolde Bros. v. Bakery & Confectionery Workers Union, 430 U. S. 243, 253 (3) (97 SCt 1067, 51 LE2d 300) (1977). See also Pickle, 282 Ga. App. at 297 (2) (b).

        See Davidson v. A. G. Edwards & Sons, Inc., 324 Ga. App. 172, 174 (1) (b) (i) (748 SE2d 300) (2013), quoting Brown v. Coleman Co., 220 F3d 1180, 1184 (III) (10th Cir. 2000). See also Penso Holdings v. Cleveland, 324 Ga. App. 259, 263 (749 SE2d 821) (2013) (“A provision in a written contract to submit any controversy thereafter arising to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. As with any other contract, the parties’ intentions control.”) (punctuation and footnote omitted) (physical precedent only).

       Cf. Pickle, 282 Ga. App. at 297-298 (2) (b).


text:
    A16A0547.
    ZAMUDIO v. THE STATE.
    (786 SE2d 569)
   DOYLE, Chief Judge.

This is the second appearance of this case before this Court. In 2015, this Court affirmed the judgments of conviction of Antonio Jesus Zamudio and his co-defendant for attempted murder, aggravated assault, aggravated battery, and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA §§ 16-15-4 (a), 16-15-3 (1) (J) (“Street Gang Act”). This Court vacated the defendants’ sentences and remanded for resentencing after holding that the trial court erred by merging the defendants’ aggravated battery counts into the attempted murder counts. Having been resentenced, Zamudio appeals, arguing that the trial court erred by failing to merge the aggravated battery count into the gang activity count. For the reasons that follow, we affirm.

After remand, the trial court held a resentencing hearing and merged Count 2 (Criminal Attempt to Commit Murder) and Count 3 (Aggravated Assault) into Count 4 (Aggravated Battery). At the resentencing hearing, Zamudio argued that Count 4 (Aggravated Battery) should merge into Count 1 (Violation of the Street Gang Act) because Count 4 was a predicate act for Count 1. The trial court declined to merge the counts, sentencing Zamudio to 20 years to serve 10 in incarceration for Count 1 and 15 years to serve 10 in incarceration for Count 4 to run concurrent to Count 1.

Decided June 9, 2016

Reconsideration denied June 23, 2016

Michael R. McCarthy, for appellant.

Herbert M. Poston, Jr., District Attorney, V. Keely Parker, Susan L. Franklin, Dixon A. Lackey III, Assistant District Attorneys, for appellee.

Zamudio argues that the trial court erred by declining to merge Count 4 into Count 1. He maintains that the legislature failed to include language prohibiting courts from merging gang activity convictions, and therefore, the general rules of merger as required under Drinkardv. Walker, and as codified in OCGA § 16-1-7 apply to require merger in this case.

After briefing in this case, this Court decided Nolley v. State, in which this Court held that by enacting OCGA § 16-15-4 (m), the legislature had determined that predicate acts for any offenses listed in the Street Gang Act do not merge with the separately charged violation of the Street Gang Act. Accordingly, this enumeration is without merit.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       OCGA §§ 16-4-1, 16-5-1 (a).

       OCGA § 16-5-21 (b) (2).

       OCGA § 16-5-24 (a).

       See Zamudio v. State, 332 Ga. App. 37 (771 SE2d 733) (2015).

       See id. at 48 (7).

       281 Ga. 211, 215, 217 (636 SE2d 530) (2006).

       335 Ga. App. 539 (782 SE2d 446) (2016).

       See id. at 544-545 (2).


author: Ray, Judge.

text:
    A16A0057.
    GRANGE INDEMNITY INSURANCE COMPANY v. BURNS.
    (788 SE2d 138)
   Ray, Judge.

Angela Burns sued J. B. Trucking, Inc., and Grange Indemnity Insurance Company (“Grange”), among others, for injuries she sustained when J. B. Trucking’s employee, Chadwick Franks, crashed the box truck he was driving into her vehicle. After a trial, the jury found in favor of Bums, and the trial court entered a final judgment in her favor. Grange appeals from that judgment and from the trial court’s summary judgment determination, prior to trial, that the MCS-90 endorsement to Grange’s insurance policy provided coverage to the accident. Grange argues that the MCS-90 endorsement should not provide coverage for an accident that occurred while Franks was engaged in a purely intrastate trip involving nonhazardous commodities at the time of the accident. Grange also contends that the trial court erred in reforming the MCS-90 endorsement to increase the liability limit. For the following reasons, we reverse.

This Court reviews “the denial or grant of summary judgment de novo to determine . . . whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation omitted.) American Strategic Ins. Corp. v. Helm, 327 Ga. App. 482, 483 (759 SE2d 563) (2014).

On the day of the accident, Franks was driving a box truck in the course of his employment with J. B. Trucking when he collided with a vehicle driven by Burns. It is undisputed that Franks was engaged in a trip involving purely intrastate commerce and that he was transporting nonhazardous commodities. Franks picked up a box truck in Monroe, Georgia, and drove the truck to Norcross, Georgia, where he picked up a load of “sales papers” and delivered them to a paper company in Newnan, Georgia. The sales papers were manufactured in Georgia and were destined for end users located in Georgia. While he was on his way from Newnan to Monroe to return the empty box truck, Franks struck the vehicle Burns was driving.

On the day of the accident, J. B. Trucking was insured under a commercial auto insurance policy issued by Grange (the “Grange policy”). The Grange policy has a liability limit of $350,000 per accident. The Grange policy also contains a MCS-90 endorsement, in accordance with the Federal Motor Carrier Safety Regulations (“FMCSR”), 49 CFR § 387.15.

An MCS-90 endorsement to an automotive insurance policy obligates an insurer to cover an insured’s negligence involving “vehicles subject to the financial responsibility requirements of. . . the Motor Carrier Act.” The Motor Carrier Act, in turn, creates minimum levels of financial responsibility “for the transportation of property by motor carrier within the United States.”

(Punctuation omitted.) Canal Ins. Co. v. Coleman, 625 F3d 244, 245 (5th Cir. 2010). The purpose of a MCS-90 endorsement is

to assure compliance with federal minimum levels of financial responsibility for motor carriers. The MCS-90 endorsement must be attached to any liability policy issued to for-hire motor carriers operating motor vehicles transporting property in interstate commerce. The endorsement creates a suretyship, which obligates an insurer to pay certain judgments against the insured arising from interstate commerce activities, even though the insurance contract would have otherwise excluded coverage.

(Citations and punctuation omitted.) Coleman, supra at 247 (I).

The MCS-90 endorsement attached to the Grange Policy pertinently provides as follows:

The insurance policy to which this endorsement is attached provides automobile liability insurance and is amended to assure compliance by the insured, within the limits stated herein, as a motor carrier of property, with Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and regulations of the Federal Highway Administration (FHWA) and the Interstate Commerce Commission (ICC).
In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, main tenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. Such insurance as is afforded, for public liability, does not apply to injury to or death of the insured’s employees while engaged in the course of their employment, or property transported by the insured, designated as cargo. It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.

(Emphasis supplied.)

The MCS-90 endorsement specifically states that the Grange policy is “primary and the company shall not be liable for amounts in excess of $350,000 per accident.” The MCS-90 endorsement has an attached “Schedule of Limits” that notes that a “For-hire (In interstate or foreign commerce)” vehicle carrying “nonhazardous” property carries minimum coverage of $750,000. It also provides that a “For-hire and Private (in interstate, foreign, or intrastate commerce)” vehicle carrying “hazardous materials” carries a minimum insurance of $5,000,000. The Schedule of Limits does not assign coverage for an intrastate carrier that is not carrying hazardous materials.

On motion for summary judgment prior to trial, Grange sought to confirm that its obligation for this accident was the policy limit of $350,000. The trial court ruled that, although it was undisputed that J. B. Trucking was engaged in intrastate commerce involving nonhazardous commodities at the time of the accident, the MCS-90 applied because J. B. Trucking was registered as an interstate carrier. The trial court also concluded that the MCS-90 should be reformed to change its liability limits to $750,000. The case then proceeded to a jury trial, where the jury issued a verdict in favor of Burns and awarded almost $3.3 million in compensatory damages, punitive damages, and litigation expenses. The trial court reduced the award to $2,035,000 to conform with the statutory punitive damages cap and entered a final judgment. Grange appeals from the final judgment and the order denying its motion for summary judgment.

1. Grange argues that the trial court erred in concluding that the MCS-90 endorsement applied to the instant accident when it is undisputed that the accident occurred while Franks was engaged in intrastate commerce and was transporting nonhazardous materials. Burns argues that this Court should conclude that the MCS-90 endorsement applied to all of J. B. Trucking’s trips because it was registered as an interstate motor carrier and had, on other occasions, been involved in interstate commerce. Although there is no binding precedent regarding this issue from Georgia courts, it is an issue that has been litigated and decided in federal courts. As explained below, we follow the approach adopted by the majority of federal courts and hold that the determination of whether the MCS-90 endorsement provides coverage hinges upon an analysis of the trip route and the goods being transported at the time of the subject accident. See, e.g., Coleman, supra at 251 (III) (B) (providing a summary of state and federal decisions adopting this “trip specific” approach).

(a) Federal Law. At the outset, we note that “[t]he operation and effect of a federally mandated endorsement is a matter of federal law.” (Citations omitted.) Lincoln Gen. Ins. Co. v. De La Luz Garcia, 501 F3d 436, 439 (II) (5th Cir. 2007). By its plain language, the MCS-90 endorsement amends the Grange policy only to the extent necessary to assure that insurers of for-hire motor carriers comply with the Motor Carrier Act of 1980 and the rules of the Federal Highway Association and the Interstate Commerce Commission. The MCS-90 endorsement also obligates Grange to pay for any judgments “recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act. . . Accordingly, to understand the scope of the MCS-90 endorsement, we must determine whether J. B. Trucking’s vehicle was subject to its financial-responsibility requirements set forth in Section 30 of the Motor Carrier Act of 1980. See Coleman, supra at 248 (III) (A).

Section 30 of the Motor Carrier Act of 1980 provides, in pertinent part:

The Secretary of Transportation shall prescribe regulations to require minimum levels of financial responsibility sufficient to satisfy liability amounts established by the Secretary covering public liability, property damage, and environmental restoration for the transportation of property by motor carrier or motor private carrier (as such terms are defined in section 13102 of this title) in the United States between a place in a State and (A) a place in another State; (B) another place in the same State through a place outside of that State; or (C) a place outside the United States.

(Emphasis supplied.) 49 USC § 31139 (b) (1). It also provides:

The Secretary of Transportation shall prescribe regulations to require minimum levels of financial responsibility sufficient to satisfy liability amounts established by the Secretary covering public liability . .. for the transportation by motor vehicle in interstate or intrastate commerce

of certain specified hazardous materials. (Emphasis supplied.) 49 USC § 31139 (d) (1) (A)-(C).

The plain language of the MCS-90 and § 30 of the Motor Carrier Act leads us to “conclude that the endorsement covers vehicles only when they are presently engaged in the transportation of property in interstate commerce” or the transportation of hazardous materials. (Emphasis supplied.) Coleman, supra at 249 (III) (A). The MCS-90 specifies that it applies to vehicles subject to § 30 of the Motor Carrier Act. Applying the rules of statutory construction to § 30 of the Motor Carrier Act, we find that Congress specifically chose to limit the reach of the federal financial responsibility regime to the transportation of property in interstate commerce or the transportation of hazardous commodities. Under the statutory interpretation doctrine of “expres-sio unius est exclusio alterius, where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (Citation and punctuation omitted.) United States v. Ayache, 997 FSupp.2d 856, 862 (I) (4) (M.D. Tenn. 2014). Because § 30 of the Motor Carrier Act explicitly extends the federal financial responsibility requirements to intrastate commerce only when certain hazardous materials are being transported, the logical interpretation is that those same requirements do not extend to purely intrastate commerce of nonhazardous materials.

The FMCSR also support our finding that the MCS-90 endorsement does not apply when an insured is engaged in intrastate transport of nonhazardous materials. Pursuant to the authority vested in it by the Motor Carrier Act of 1980, the Secretary of Transportation created the financial responsibility regulations set forth in 49 CFR § 387.1 et seq. These regulations note that their application is limited to “for-hire motor carriers operating motor vehicles transporting property in interstate or foreign commerce” and “motor carriers operating motor vehicles transporting hazardous materials ... in interstate, foreign or intrastate commerce.” (Emphasis supplied.) 49 CFR § 387.3 (a)-(b).

As the trial court notes, there is a split of authority in the federal courts regarding whether a MCS-90 endorsement applies to an accident caused by an interstate carrier during an intrastate trip carrying nonhazardous materials. However, it appears that the majority of courts addressing this issue have adopted the “trip specific approach,” which holds that the MCS-90 endorsement is not applicable when an interstate carrier is engaged solely in intrastate commerce of nonhazardous materials during the specific trip it was engaged in at the time of the accident. See, e.g., Coleman, supra at 251 (III) (B) (identifying the trip specific approach as the “majority approach[,]” and providing a comprehensive list of cases adopting such approach); Progressive Gulf Ins. Co. v. Jones, 958 FSupp.2d 706, 714 (S.D. Miss. 2013) (concluding that the trip specific approach appears to be the majority approach). Our analysis of pertinent Georgia legislation and federal regulations leads us to agree with the majority approach that each claim must be examined individually to determine whether the coverage afforded by the MCS-90 endorsement applies to the actual vehicle involved in the accident. See Coleman, supra at 249 (III) (A), n. 5.

(b) Georgia Law. Burns argues that the trial court’s order correctly concluded that the language of the Georgia Uniform Rules of the Road statute, OCGA § 40-6-10.1, indicates that the Georgia legislature intended for MCS-90 endorsements to provide coverage for all accidents involving an interstate carrier, whether or not they were engaged in interstate commerce at the time of the accident. We cannot agree.

OCGA § 40-6-10.1 provides:

No motor carrier subject to the financial responsibility requirements of the Federal Motor Carrier Safety Administration . . . , as contained in 49 C.F.R. [§] 387, shall operate any motor vehicle upon the highways of this state until such motor carrier has obtained and has in effect the minimum levels of financial responsibility prescribed by such federal regulations.

As noted above, the FMCSR regulations require compliance with the federal financial responsibility requirements only when a motor carrier is operating in interstate or foreign commerce of nonhazardous materials or interstate, intrastate, or foreign commerce involving hazardous materials. See 49 CFR § 387.3 (a), (b). Accordingly, we conclude that the language of OCGA § 40-6-10.1 requiring certain motor carriers to comply with that federal financial responsibility regime does not apply to a motor carrier engaged in the intrastate commerce of nonhazardous materials. Nor does it replace Georgia’s financial responsibility regime, which sets lower minimum financial responsibility limits per accident. See Ga. Comp. Rules & Regs., r. 515-16-11-.03 (establishing the minimum financial responsibility limits of $100,000 of liability insurance for injuries to a single person).

In fact, the Georgia Motor Carrier Act contemplates that a motor carrier can be engaged in both interstate and intrastate commerce, and does not impose federal financial responsibility limits on an interstate motor carrier that is engaged in intrastate commerce at the time of the accident. OCGA § 40-1-126, which notes that it is applicable to both interstate and intrastate commerce, provides:

In circumstances where a motor carrier is engaged in both interstate and intrastate commerce, it shall nevertheless be subject to all the provisions of this part so far as it separately relates to commerce carried on exclusively in this state. It is not intended that the department shall have the power of regulating the interstate commerce of such motor carrier. .. . The provisions of this part do not apply to purely interstate commerce nor to carriers exclusively engaged in interstate commerce. When a motor carrier is engaged in both intrastate and interstate commerce, it shall be subject to all the provisions of this part so far as they separately relate to commerce carried on in this state.

This interpretation is confirmed by language in the Georgia Department of Public Safety Transportation Rulebook, Rule 1-387.1, which provides that the federal financial responsibility rules

apply only to interstate commerce and those operations of intrastate carriers subject to the jurisdiction of the Federal Motor Carrier Safety Administration as provided for in 49 CFR [§] 387. It is not the intent of the Department to impose Federal financial responsibility limits on intrastate motor carriers not otherwise subject to 49 CFR [§] 387.

49 CFR § 387 only imposes such limits upon motor carriers engaged in intrastate commerce of hazardous materials.

Burns urges us to adopt, on public policy grounds, the alternate approach and to hold that once a MCS-90 endorsement is issued to a registered interstate carrier, that endorsement should apply regardless of whether a specific trip is intrastate or interstate. Burns argues that a Georgia citizen injured by an interstate motor carrier conducting intrastate commerce of nonhazardous materials at the time of an accident should “be given the same amount of protection as a citizen injured by the same truck, owned by the same ... carrier, and covered by the same insurance policy, but whose cargo may be destined for another state[.]” However, we find that this public policy argument cannot trump the clear and unambiguous statutory and regulatory language addressed above. See, e.g., Brunson v. Canal Ins. Co., 602 FSupp.2d 711, 718-719 (D.S.C. 2007) (acknowledging the public policy argument, but concluding that “the statutes, federal regulations, and . . . caselaw” require “the conclusion that an MCS-90 endorsement does not apply to a purely intrastate trip”).

Decided June 23, 2016.

McMickle, Kurey & Branch, Scott W. McMickle, Jonathan J. Kandel; William E. Gray II, for appellant.

Butler, Wooten, Cheeley & Peak, Brandon L. Peak, Morgan E. Duncan, Mary K. Weeks, for appellee.

Based upon the above, we find that the Georgia legislature and the Georgia Department of Public Safety did not intend to extend the federal financial responsibility regime imposed by FMCSR to purely intrastate commerce involving nonhazardous commodities. By stating that the federal financial responsibility requirements “apply only to interstate commerce and those operations of intrastate carriers subject to the jurisdiction of the Federal Motor Carrier Safety Administration as provided for in 49 CFR[§] 387,” the Georgia Department of Public Safety makes clear that the federal financial responsibility requirements are applicable only when a motor carrier’s “operations” are subject to the jurisdiction of the federal government. See Georgia Department of Public Safety Transportation Rulebook, Rule 1-387.1. To determine what “operations” are subject to the jurisdiction of 49 CFR § 387, a court must utilize a trip-specific test.

Applying the trip-specific test to the facts of the present case, we find that the trial court erred in concluding that the coverage afforded by the MCS-90 endorsement applied in this case because it is undisputed that J. B. Trucking was engaged in a purely intrastate trip involving nonhazardous commodities at the time of the subject accident. Accordingly, we reverse the trial court’s summary judgment order and final judgment to that effect.

2. As a result of our holding in Division 1, we need not address Grange’s remaining enumeration.

Judgment reversed.

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

       We note that Grange disputes whether J. B. Trucking had properly registered as an interstate motor carrier; although the MCS-90 endorsement was attached to the policy, it was not filed with the Federal Motor Carrier Safety Administration, and there was evidence that J. B. Trucking had improperly operated as an interstate motor carrier. However, as explained infra, the issue of whether J. B. Trucking was properly registered as an interstate carrier is rendered moot because it was undisputed that J. B. Trucking was engaged in purely intrastate commerce at the time of the accident.

       In an unpublished and, therefore, nonbinding, decision, Kolencik v. Progressive Preferred Ins. Co., 2006 WL 738715 (II) (C) (N.D. Ga. 2006), the United States District Court held that MCS-90 endorsement coverage did not apply to the subject accident because the defendant trucking company did not have federal authority to operate as an interstate carrier and because at the time of the accident it was engaged in purely intrastate commerce. Both parties filed supplemental briefs addressing Nat. Specialty Ins. Co. v. Martin-Vegue, 2016 WL 737780 (11th Cir. 2016), a recent case by the Eleventh Circuit. However, in Martin-Vegue, the Eleventh Circuit does not address the specific issue at hand in this case. Rather, it involves the issue of whether a MCS-90 endorsement is applicable where the motor carrier covered by the MCS-90 endorsement was not the motor carrier involved in the wreck.

       Section 30 of the Motor Carrier Act of 1980 is codified at 49 USC § 31139 (b). See Motor Carrier Act of 1980, Pub. L. No. 96-296, § 30, 94 Stat. 793. Section 29 — also referenced in the MCS-90 endorsement — is not relevant in this case.

       See, e.g., Coleman, supra; Century Indem. Co. v. Carlson, 133 F3d 591, 600 (II) (8th Cir. 1998) (concluding that MCS-90 endorsement applied because the shipment of goods was interstate in nature); Branson v. MGA Ins. Co., 673 S2d 89, 91-92 (Fla. 5th Dist. App. 1996) (declining to apply MCS-90 endorsement to purely intrastatetransportation); Brunson v. Canal Ins. Co., 602 FSupp.2d 711, 719 (D.S.C. 2007) (concluding that the MCS-90 endorsement does not apply to an accident that occurred when the motor carrier was engaged in a purely intrastate.trip); Progressive Gulf Ins. Co. v. Jones, 958 FSupp.2d 706, 714-715 (S.D. Miss. 2013) (noting that the Fifth Circuit “follows the majority approach and employs a trip-specific analysis in determining if the transport was intrastate or interstate”). Compare Travelers Indem. Co. v. Western American Spec. Transp. Serv., 235 FSupp.2d 522, 529-530 (A) (1) (W.D. La. 2002) (MCS-90 endorsement covering a motor carrier registered as an interstate carrier applied to intrastate trip); Royal Indem. Co. v. Jacobsen, 863 FSupp. 1537, 1541-1542 (III) (D. Utah 1994) (concluding that once issued, a MCS-90 endorsement applies regardless of the type of product being hauled on the day of the accident in question).

       Georgia is specifically granted the right to establish its own financial responsibility regime for intrastate commerce involving nonhazardous commodities. See 49 USC § 14501 (c) (2) (A).

       See Ga. Dept. of Revenue v. Owens Corning, 283 Ga. 489, 490 (660 SE2d 719) (2008) (“the interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference”) (citation omitted).


author: McMlLLIAN, Judge.

text:
    A16A0198.
    EIDSON v. CROUTCH et al.
    (788 SE2d 129)
   McMlLLIAN, Judge.

Robert Eidson filed an application for discretionary appeal seeking review of the trial court’s order granting attorney fees to Robyn Croutch under OCGA § 9-15-14 (a), which this Court granted. For the reasons set forth below, we find that we do not have jurisdiction and dismiss the appeal as improvidently granted.

In November 2014, Robyn Croutch, individually and as next friend of her minor daughter, filed suit against Eidson in the State Court of Gwinnett County, asserting claims arising from a motor vehicle accident. In March 2015, after learning that Eidson did not reside in Gwinnett County as previously believed, Croutch amended her complaint to reflect his actual residence and filed a motion to transfer venue to the State Court of DeKalb County, the location of the accident. Shortly thereafter, Eidson filed a motion to dismiss, alleging that Croutch failed to serve the complaint within the time allowed by OCGA § 9-11-4 (c). In addition to opposing the motion to dismiss, Croutch filed a motion for attorney fees. Following a hearing, the trial court entered an order awarding $5,405 in attorney fees to Croutch (the “Order”) and, in a separate order entered the same day, granted Croutch’s motion to transfer the case to DeKalb County.

Eidson timely filed an application for discretionary review of the Order. Croutch moved to dismiss the application, asserting that because the underlying action remains pending in DeKalb County, the Order is interlocutory and this Court therefore lacks jurisdiction to entertain Eidson’s appeal where he did not comply with the requirements of OCGA § 5-6-34 (b). In response to the motion to dismiss, Eidson concedes that, although he followed the requirements of OCGA § 5-6-35 (a) (10) in seeking discretionary review of the Order, he did not comply with the additional requirements of OCGA § 5-6-34 (b).

The Order is clearly interlocutory. It is undisputed that the negligence action remains pending below, and the Order does not otherwise fall under any of the 12 categories of judgments enumerated in OCGA § 5-6-34 (a) that are subject to a direct appeal. And it is well settled that where an appeal is both discretionary and interlocutory, the discretionary appeal statute does not excuse a party from complying with the additional interlocutory requirements of OCGA § 5-6-34 (b). See Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213) (1996) (“Thus, a party appealing an interlocutory order must comply with the requirements of OCGA § 5-6-34 (b), irrespective of whether the appeal is brought pursuant to OCGA § 5-6-35.”); Expedia, Inc. v. City of Columbus, 305 Ga. App. 450, 454 (1) (699 SE2d 600) (2010) (“As an interlocutory discovery order, a direct appeal thereof... is unavailable. And since Expedia failed to comply with the interlocutory appeal procedures in OCGA § 5-6-34 (b), discretionary review ... is likewise foreclosed.”).

The failure to follow the interlocutory appeal requirements, when applicable, generally deprives this Court of jurisdiction. As we have explained, the “interlocutory appeal statute is not a run-of-the-mill procedural provision. It is a jurisdictional law by which the General Assembly has limited the authority of Georgia’s appellate courts to hear certain cases.” (Citation and punctuation omitted; emphasis in original.) Settendown Public Utility, LLC v. Waterscape Utility, LLC, 324 Ga. App. 652, 653 (751 SE2d 463) (2013). Thus, “[wjhen the order appealed from is an interlocutory order, the appellate court does not acquire jurisdiction unless the procedure of OCGA § 5-6-34 (b) for interlocutory appeal is followed.” (Citation and punctuation omitted.) Id.

But that does not end the inquiry in this case. In granting Eidson’s application for discretionary review, this Court directed the parties to address whether this Court otherwise has jurisdiction to review the case as a direct appeal because the transfer order acted as a final judgment making the attorney fees order appealable pursuant to OCGA § 5-6-34 (d). After thorough consideration of the record and the relevant law, we find that we do not. Because the case remains pending below, although in a different, court from the one that issued the transfer order, there was no final judgment as defined in OCGA § 5-6-34 (a) (1). See, e.g., Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533, 533 (333 SE2d 647) (1985) (“The subject transfer order is not a final judgment as the case is still pending in the court below, albeit a different court from the one ordering the transfer. The order is thus interlocutory and not appealable without a certificate of immediate review from the lower court and an appropriate application to this court.”); Mauer v. Parker Fibernet, LLC, 306 Ga. App. 160, 161 (701 SE2d 599) (2010) (“A trial court’s ruling on the issue of removal or transfer of venue is not a directly appealable final judgment under OCGA § 5-6-34 (a) (1), and thus, it is subject to the procedures governing interlocutory appeals.”). And because the nature of this case remained unchanged following the transfer for venue, it does not fall within the narrow exception carved out by our Supreme Court when a trial court transfers a criminal matter from juvenile to superior court. See, e.g., Fulton County Dept. of Family & Children Svcs. v. Perkins, 244 Ga. 237, 239 (259 SE2d 427) (1978) (criminal transfer order may be final insofar as it “determines whether the defendant will be treated as a juvenile and tried for delinquency under the applicable juvenile provisions, or whether he will be treated as an adult and prosecuted under the criminal laws of this state”); Rivers v. State, 229 Ga. App. 12, 13 (493 SE2d 2) (1997). Cf. In the Interest of W. L., 335 Ga. App. 561, 563 (782 SE2d 464) (2016) (order transferring case from one juvenile court to another juvenile court is an interlocutory order). Here, the transfer order is not final because it is simply a continuation of the same proceeding against Eidson, and thus the attorney fees order was not immediately appealable.

We further decline Eidson’s request to extend the collateral order doctrine to include orders granting attorney fees pursuant to OCGA § 9-15-14. “The collateral order doctrine permits appeals from a small category of decisions that are (i) conclusive, (ii) that resolve important questions separate from the merits, and (iii) that are effectively unreviewable on appeal from the final judgment in the underlying action.” (Citation and punctuation omitted.) Expedia, 305 Ga. App. at 452 (1). Pretermitting whether the first and second criteria could be met, an order granting attorney fees does not meet the third criterion as it is subject to appellate review after entry of final judgment. See Dept. of Transp. v. Hardaway Co., 216 Ga. App. 262, 262 (1) (454 SE2d 167) (1995) (assessment of attorney fees does not meet collateral order requirements), overruled on other grounds, Johnson & Johnson v. Kaufman, 226 Ga. App. 77 (485 SE2d 525) (1997); Netsphere, Inc. v. Baron, 799 F3d 327, 335 (II) (B) (5th Cir. 2015) (lower court’s award of attorney fees not subject to collateral order doctrine because it is effectively reviewable after final judgment on the merits of the case is entered).

Decided June 23, 2016.

Bovis, Kyle, Burch & Medlin, Wayne S. Tartline, for appellant.

Morgan & Morgan, Andrew L. Hagenbush, for appellees.

Although Eidson argues that an order granting attorney fees may involve a distinct and separate offshoot of the underlying pending action, that is not the test for determining whether this Court has jurisdiction. Where an attorney fees order is issued prior to final judgment, the proper method for immediately appealing such orders is sufficiently set forth via the interlocutory and discretionary application statutes, which were not followed here. See Fein v. Chenault, 330 Ga. App. 222, 230 (767 SE2d 766) (2014) (“It would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation.”) (quoting Richardson-Merrell, Inc. v. Koller, 472 U. S. 424, 440 (IV) (105 SCt 2757, 86 LE2d 340) (1985)). Accordingly, we find that the application for discretionary appeal was improvidently granted, and we dismiss the appeal.

Appeal dismissed.

Miller, P. J., and McFadden, J., concur.

       See OCGA § 5-6-35 (a) (10) (requires the filing of an application for “[ajppeals from awards of attorney’s fees or expenses of litigation under [OCGA §] 9-15-14”).

       OCGA § 5-6-34 (b) provides, in relevant part:
      Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal... certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted. The application shall be in the nature of a petition and shall set forth the need for such an appeal and the issue or issues involved therein. The applicant may, at his or her election, include copies of such parts of the record as he or she deems appropriate ....

        Eidson did not obtain a certificate of immediate review in the trial court, nor did he set forth in his application the need for interlocutory appellate review. See OCGA § 5-6-35 (b) (“The application shall specify the order or judgment being appealed and, if the order or judgment is interlocutory, the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.”).

       OCGA § 5-6-34 (d) provides:
      Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.

       However, we note that “when the judgment being appealed was interlocutory in nature, the denial of an application for discretionary appeal does not operate as res judicata.” (Citation and punctuation omitted.) Davis v. Foreman, 311 Ga. App. 775, 778 (2) (717 SE2d 295) (2011).


text:
    A16A0559.
    JONES v. THE STATE.
    (788 SE2d 132)
   McMlLLIAN, Judge.

Landry Brian Jones was convicted by a jury of possession of methamphetamine with intent to distribute, theft by receiving stolen property, and possession of a motor vehicle with identification number removed. Jones filed a motion and amended motions for new trial, which the trial court denied following a hearing. Jones appeals, arguing in related enumerations of error that the trial court erred by denying his motion to suppress evidence seized from his home during the execution of several search warrants. As more fully set forth below, we now affirm.

The evidence relevant to the searches is essentially undisputed. On May 23, 2004, at about 4:30 a.m., Jones was shot at his mobile home residence located at 154 Hightower Trail in Cherokee County. Law enforcement personnel with the Cherokee County Sheriff’s Department responded to the 911 call reporting the shooting, and Detective Steven Thompson, who at that time was employed in the sheriff’s department’s Violent Crime Unit, met Jones at the hospital while other officers proceeded to his residence. Thompson spoke with Jones, who had been shot in the left arm but was conscious when the detective arrived at the hospital, and received Jones’ consent to search his home for evidence related to the shooting.

Officers conducting the initial search observed baggies, a propane tank and scales inside Jones’ home, and coupled with information received while investigating the shooting, police formed the belief that Jones was involved in the drug trade, in particular the sale of methamphetamine. On June 1,2004, Detective Thompson obtained a warrant to search J ones’ home, outlying buildings, and curtilage for evidence of the shooting and the sale and distribution of methamphetamine, and a search was conducted pursuant to the warrant on June 2, 2004. During this second search, officers found a small amount of marijuana inside a drawer in the house and an outside shed and an ATV with a missing vehicle identification number (VIN).

The ATV with the missing VIN was subsequently determined to be stolen, and officers obtained a warrant for Jones’ arrest for possession of stolen property and misdemeanor marijuana possession. Detective Thompson and another officer went to Jones’ residence on June 11, 2004 to arrest him, and Jones exited from the rear door of his trailer and met the officers outside the mobile home. Jones asked the officers if they had a warrant, and they informed him that they did. After Jones was placed under arrest, he indicated that he wanted to secure his home, and the officers escorted him back inside. The officers observed several people inside the home and detected the odor of burnt marijuana. Officers also observed a glass pipe and a propane torch on a table in the living area of the mobile home.

Detective Thompson then sought and obtained another warrant based on the smell of burnt marijuana and observation of the glass pipe “of the type . . . commonly used for smoking crack cocaine and [methamphetamine and the] cylinder of propane that is often used to heat the illegal substance to be smoked in the glass pipe.” This search warrant was executed June 11, 2004, the same day Jones was arrested. During the execution of this warrant, police discovered, among other things, a substance subsequently identified as methamphetamine.

Jones was charged with possession of methamphetamine with intent to distribute, theft by receiving stolen property, and possession of a motor vehicle with identification number removed. Jones filed consolidated motions and discovery demands, including a broad, nonparticularized motion to suppress, which he later amended to attack more particularly the June 1 and June 11 warrants. Following a hearing at which the trial court expressly cited, and discounted, many of the averments in the affidavit supporting the June 1 warrant, the trial court summarily denied the amended motions to suppress. Subsequently, Jones was tried before a jury and was found guilty on all counts. He filed a motion for new trial, in which he once again challenged the introduction of the evidence found during the execution of the June 1 and June 11 search warrants. The trial court denied Jones’ motion, and Jones filed this appeal.

1. Jones first contends that the search of his residence and outlying buildings pursuantto the June 1 warrant was illegal because the affidavit submitted in support of the warrant was legally insufficient to support a finding of probable cause.

We begin our analysis by setting out the standards used in the various levels of judicial review of an application for a search warrant. At the outset, our law is clear that a magistrate may issue a search warrant only upon facts sufficient to support probable cause that a crime is being committed or has been committed. OCGA § 17-5-21 (a); State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009).

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . . Sullivan v. State, 284 Ga. 358, 361 (667 SE2d 32) (2008).

(Punctuation omitted.) Prince v. State, 295 Ga. 788, 792 (2) (a) (764 SE2d 362) (2014); Palmer, 285 Ga. at 78. “The test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life on which reasonable and prudent men act.” (Citations and punctuation omitted.) State v. Hunter, 282 Ga. 278, 278 (646 SE2d 465) (2007).

When a trial court reviews a magistrate’s decision to issue a search warrant on a motion to suppress,

the trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause.

(Citation omitted.) Palmer, 285 Ga. at 77. However, the burden of proving the lawfulness of the warrant is on the State, including the reliability of an informant if the application for the warrant is based upon information provided by an informant. Sutton v. State, 319 Ga. App. 597, 597-98 (737 SE2d 706) (2013); Dearing v. State, 233 Ga. App. 630, 632 (505 SE2d 485) (1998).

On appeal, we also review the search warrant to determine whether probable cause existed under the totality of the circumstances, keeping in mind that the duty of the appellate courts “is to determine if the magistrate had a ‘substantial basis’ for concluding that probable cause existed to issue the search warrant[ ]." Sullivan, 284 Ga. at 361 (2); Powers v. State, 261 Ga. App. 296, 302 (4) (582 SE2d 237) (2003). Moreover, we review the trial court’s grant or denial of a motion to suppress under the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review. Petty v. State, 283 Ga. 268, 269 (2) (658 SE2d 599) (2008). As in the trial court, we will give substantial deference to the magistrate’s decision to issue a search warrant. Palmer, 285 Ga. at 77-78; Sullivan, 284 Ga. at 361 (2); Robinson v. State, 312 Ga. App. 736, 745 (4) (a) (719 SE2d 601) (2011).

With these principles in mind, we examine the affidavit submitted by Detective Thompson in support of the June 1 warrant. In regard to the shooting, Detective Thompson set out the information provided from the statements made by a witness and noted certain forensic evidence that officers found during the course of their investigation at Jones’ residence, indicating that police believed they had not yet recovered all evidence related to the shooting, including the bullets fired and the weapon. Additionally, the affidavit recited that while processing the scene of the shooting, officers found “small plastic bags, commonly used in packaging of meth, large propane cylinders, commonly used in the smoking of meth, scales, commonly used in the weighing and packaging of meth.” Officers also observed a room in the residence containing shelves around the walls of it supporting many electronic items, a motorcycle and four wheeler type vehicle in a shed, another four wheeler outside, and many tools, of the “type commonly stolen and exchanged for drugs,” hanging on the walls of the building. Further, the affidavit stated that officers observed that Jones’ residence was equipped with a surveillance camera, monitoring the outside of the residence, and night vision equipment to survey the property. After hearing testimony from Thompson and the magistrate, the trial court credited these aver-ments and although noting that the basis was marginal, nonetheless found that they were sufficient to support probable cause for the June 1 search.

The trial court, however, discounted a number of averments in the affidavit as unsubstantiated rumor or because the averments were too vague to support a finding of probable cause, including that during the course of the investigation, Cherokee County law enforcement officers had spoken with Dawson County Sheriff’s Investigator Tim Reed, who told them that he was “very familiar” with Jones, who Reed said “was known to sell methamphetamine and possess stolen property” Reed also provided information that Jones was under prosecution for the sale of methamphetamine without identifying when the underlying offense took place and that he was known to trade stolen property in exchange for drugs.

Thompson also averred that officers had determined the person responsible for the shooting from an informant in Buford, Georgia, although only the first name and nicknames of the alleged shooter were included in the affidavit, and that the information had been independently verified by “an Investigator with the Dawson County Sheriff’s Office.” Additionally, the affidavit stated that “it was determined” that Jones was a regular purchaser of methamphetamine from the person identified as the shooter and that he owed this person a large sum of money without explaining who provided the information or how it was determined.

Although we agree that many of the averments in the affidavit were properly discounted by the trial court, we also agree that under the totality of the circumstances, probable cause existed to justify the issuance of the warrant. The investigation into the shooting at Jones’ residence was ongoing, and a suspect had not yet been arrested for that aggravated assault. Thus, the need for continued investigation into the circumstances surrounding the shooting justified the issuance of the warrant for that purpose. And although the need to investigate the shooting in and of itself might not have justified the scope of the search into the outlying buildings and entire mobile home, the affidavit also contained information about Jones’ drug activities, which supplied a possible motive for the shooting. Jones was currently being prosecuted for the sale and possession of methamphetamine. Additionally, although the trial court found that Reed’s statements that Jones was “known” to trade stolen goods for drugs appeared to be nothing more than rumor, the affidavit also contained the information obtained from the earlier consent search, when officers observed that Jones had shelves lined with electronic equipment. This information, coupled with the type and the sophistication of the surveillance equipment surrounding Jones’ property, provided independent corroboration of this type of criminal activity so that the other infirmities in the affidavit were not fatal. Williams v. State, 329 Ga.App. 402, 405 (765 SE2d 622) (2014); Powers, 261 Ga. App. at 302-03 (4). Considering the totality of the circumstances, including the recent shooting on Jones’ property, and mindful that marginal or doubtful cases are to be decided in favor of upholding the warrant, we conclude that the magistrate had a substantial basis for concluding that a search of Jones’ residence would produce evidence of methamphetamine. Accordingly, the trial court did not err in denying Jones’ motion to suppress. Palmer, 285 Ga. at 77-78 (“Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.”) (citation omitted); Henson v. State, 314 Ga. App. 152, 154 (723 SE2d 456) (2012) (when issuing a warrant a magistrate properly considers “all the circumstances set forth in the affidavit” to determine whether probable cause exists).

2. Because we have upheld the issuance of the June 1 warrant, Jones’ argument that methamphetamine found during the June 11 search should have been excluded because the June 11 arrest and the resulting June 11 search warrant were “fruits of the poisonous tree” likewise fails.

3. Jones also contends that the evidence obtained as a result of the June 11 warrant should have been suppressed because the State failed to introduce a certified copy of the warrant and supporting affidavit at the motion to suppress hearing. The record shows that Jones’ attorney raised this issue at the motion for new trial hearing and, after reviewing the transcript of the suppression hearing, Jones’ counsel conceded that the warrant had been attached to Jones’ motion to suppress and was referenced as Exhibit 3 at the motion to suppress hearing. The trial court clarified that “So however inartfully we did it, it’s in there,” and Jones’ counsel responded in the affirmative.

Jones now argues, however, that even if the warrant may have been attached to the motion to suppress and introduced at the suppression hearing, the transcript from that hearing does not show that the affidavit supporting the June 11 warrant was also tendered at the hearing. Again, however, at the motion for new trial hearing, Jones appears to have abandoned any argument pertaining to the State’s failure to introduce the June 11 warrant, and he did not raise a separate issue concerning the introduction of the affidavit supporting the warrant. Further, the record shows that the affidavit was also attached as an exhibit to Jones’ motion to suppress; accordingly, this case is distinguishable from those cases in which we have held that reversal is required because the warrant and affidavit were not tendered into evidence at the suppression hearing and do not otherwise appear in the record on appeal. Bowman v. State, 332 Ga. App. 407, 409 (2) (773 SE2d 33) (2015).

4. Lastly, Jones contends that the evidence obtained during the execution ofthe June 11 search warrant should have been suppressed because police had no right to enter his home when they arrested him on that date, and thus they were in a place they were not legally entitled to be when they smelled the odor of burnt marijuana and observed the items of drug paraphernalia, which formed the basis of probable cause to seek the June 11 warrant. However, Jones did not raise this issue in either his written motions to suppress or at the hearing on his motion; accordingly, this argument has been waived. Harper v. State, 285 Ga. App. 261, 266 (2) (645 SE2d 741) (2007) (“Because this argument is being raised for the first time on appeal as a basis for evidence suppression, it is not reviewable.”).

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

Decided June 23, 2016.

Amanda G. Speights, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

       The mobile home was located about 100 yards off the road on property of unknown acreage.

       Detective Thompson testified at the hearing on the motion to suppress that there was also an odor of propane burning inside the home, but he did not include this fact in the affidavit he subsequently submitted in support of the search warrant.

       The trial court noted that the descriptions of the items in the shed did not support probable cause for the search because tools in general are commonly stolen.

       Although the trial court did not make written findings, the court’s oral findings on the record at the motion to suppress hearing provide a sufficient basis for appellate review such that remand is not necessary. See Norton v. State, 293 Ga. 332, 335 (2), n.4 (745 SE2d 630) (2013) (remand not necessary when written order, together with court’s oral pronouncement, provides basis for sufficient and meaningful appellate review).

       The trial judge discounted the averments related to the informant, noting the informant had not been shown to be reliable and the information had not been corroborated. The recitations contained in the affidavit concerning the unverified and uncorroborated assertions of the unnamed informant were properly disregarded by the trial court. State v. LeJeune, 276 Ga. 179, 181 (1) (576 SE2d 888) (2003) (in determining whether probable cause exists, magistrate should consider veracity and basis of knowledge of persons supplying hearsay information). However, unlike cases in which reversal was required because the hearsay information constituted the primary basis for the issuance of the warrant, the affidavit here contained additional information that authorized thefinding of probable.cause. Powers, 261 Ga. App. at 303 (4) (applicable test is totality of the circumstances, and even where reliability of the informant and his or her information has not been shown, affidavit may still be sufficient if it contains additional information to support probable cause).

       In addition to the discounted averments, the trial court also stated in its oral findings that he was not going to give the State the “benefit” of additional information that Detective Thompson orally provided to the magistrate concerning Jones’ rap sheet because neither Thompson nor the magistrate, who testified at the hearing, gave any indication of exactly what Thompson told the magistrate about Jones’ criminal history.

       Although the warrant alleged that an informant had identified the shooter, that information turned out to be false, and other persons were subsequently arrested for the crime.

       Jones does not argue on appeal that probable cause did not exist for a search to discover evidence of the shooting but that the search for drugs was unauthorized. See Banks v. State of Ga., 277 Ga. 543, 547 (3) (592 SE2d 668) (2004).

       Although “[ojbservations by fellow officers of government engaged in a common investigation are a reliable basis for a warrant applied for by one of their number [and] information provided by police officers, arising out of an official investigation, may be used to establish probable cause for a search warrant!,]” (citations and punctuation omitted) Powers, 261 Ga. App. at 302, n.9, the affidavit did not indicate that Investigator Reed was involved in an official investigation of Jones or that he had derived his information from such an investigation. See Caffo v. State, 247 Ga. 751, 754-55 (2) (b) (279 SE2d 678) (1981); Chambliss v. State, 298 Ga. App. 293, 294-95 (1) (679 SE2d 831) (2009).

       See Ramey v. State, 288 Ga. App. 800, 801 (655 SE2d 675) (2007) (describing a surveillance camera found during a premises search as “commonly used by drug dealers to alert them to a police raid”).

       The affidavit stated that several items observed in Jones’ home were used in the consumption or packaging of methamphetamine, but the averring officer did not provide any information about his training and experience to make such a conclusion. However, baggies and scales are routinely recognized as commonly used in drug distribution, and torches such as propane tanks may be used in the consumption of methamphetamine. See, e.g., Wiggins v. State, 331 Ga.App. 447, 452 (771 SE2d 135) (2015) (physical precedent only) (listing some items commonly used in drug distribution); Clewis v. State, 293 Ga. App. 412, 413 (667 SE2d 158) (2008) (noting that during execution of search warrant, officer found “torch commonly used to heatup methamphetamine”); Hancock v. State, 265 Ga.App. 259 (593 SE2d 713) (2004) (noting officers found scales commonly used for weighing drugs and abox of sandwich bags drug dealers commonly used to package drugs). Although the better practice would have been to provide the officer’s training and experience to support these conclusions, under the unique circumstances of this case where Jones’ connection with the drug trade was otherwise corroborated and the shooting justified the search in the first instance, we conclude that the magistrate reasonably determined that there was a fair probability that evidence of a crime would be found at Jones’ residence and outlying buildings.