text:
    A11A2363.
    LITTLEFIELD CONSTRUCTION COMPANY v. BOZEMAN.
    (725 SE2d 333)
   MlKELL, Presiding Judge.

Jerry Bozeman was injured when Eddie Lewis, an employee of Littlefield Construction Company (“Littlefield”), ran into Boze-man’s truck while driving a company-owned minivan. Bozeman filed suit against Lewis and against Littlefield on the theory of respondeat superior. Littlefield sought summary judgment, and Lewis filed a motion to dismiss on venue grounds. The trial court denied both motions and granted a certificate of immediate review. We granted appellant’s application for interlocutory appeal and for the reasons set forth below, we affirm.

Summary judgment is proper when the movant demonstrates that there is no genuine issue of material fact and the undisputed facts warrant judgment for the movant as a matter of law. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the plaintiffs case, but may point to an absence of evidence in the record to support some essential element in the plaintiffs cause of action. If the defendant points to an absence of evidence in the record, the plaintiff cannot rest on his pleadings, but must identify specific evidence giving rise to a triable issue of fact. If the plaintiff cannot identify specific evidence, summary judgment is properly granted to the defendant. We review the denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

So viewed, the record shows that Eddie Lewis worked for Littlefield as a laborer and assisted in tasks such as laying pipe and asphalt and operating heavy machinery. Littlefield owned a fleet of company vehicles that it occasionally allowed its employees to drive home, provided the employee asked for permission, drove “straight home and straight back to work,” and kept the vehicle clean. On July 18, 2008, Lewis arrived at work and picked up a minivan owned by Littlefield to drive himself and a co-worker to a job in a neighboring town. After the work day was completed, Lewis dropped his coworker off at the Littlefield shop, and then drove the minivan home for the weekend. Lewis testified in his affidavit that he decided to drive the minivan home because it needed to be cleaned and because he wanted to utilize the minivan’s trailer hitch to haul a riding lawn mower over the weekend.

Lewis drove the minivan to his father-in-law’s home, about a block out of the way from his normal route home, to pick up his son and a small utility trailer owned by his father-in-law. Lewis then left his father-in-law’s house and on his way home, he rear-ended Jerry Bozeman’s pickup truck. Bozeman then filed suit against Lewis for negligence and against Littlefield under the theory of respondeat superior. Littlefield filed a motion for summary judgment, alleging that it should not be liable under the doctrine of respondeat superior because Lewis was not driving the company vehicle during the scope and course of his employment at the time of the collision. Lewis filed a motion to dismiss, alleging that if the summary judgment motion were granted, Ware County would no longer have jurisdiction over the case. After oral argument, the trial court denied both motions and issued a certificate of immediate review. We granted appellant’s application for interlocutory appeal, and this appeal followed.

1. Littlefield contends that the trial court erred in denying summary judgment as to Bozeman’s claims alleging respondeat superior, arguing that it cannot be held liable for the accident because Lewis was on a personal mission when he rear-ended Bozeman’s truck and therefore was not acting in the scope of his employment or in furtherance of Littlefield’s business. We disagree.

Under Georgia law, “[t]wo elements must be present to render a master liable for his servant’s actions under respondeat superior: first, the servant must be in furtherance of the master’s business; and, second, he must be acting within the scope of his master’s business.” Further, where a tort occurs as a result of a vehicle collision in which an employee was driving his employer’s vehicle, the employer’s liability must be analyzed pursuant to the burden-shifting framework espoused by the Supreme Court of Georgia in Allen Kane’s Major Dodge, Inc. v. Barnes.

Under this framework, a presumption arises that the employee was acting in the course and scope of his employment at the time of the collision, and the burden is on the employer to show otherwise. An employer can overcome this presumption as a matter of law by coming forward with uncontradicted evidence showing that the employee was not acting in the course and scope of his employment. The employer is thereafter entitled to summary judgment unless “other facts” are proffered — that is, additional evidence other than the fact that the vehicle was owned by the employer — from which a jury could reasonably infer that the employee was acting within the course and scope of his employment when the accident occurred. Where the “other facts” are direct evidence, such is sufficient for the case to go to the jury. Where the “other facts” are circumstantial, however, such evidence will not defeat the employer’s motion for summary judgment, unless it is sufficient to support a verdict in the plaintiffs favor.

In the present case, Lewis admittedly was driving Littlefield’s truck, which raised the presumption that he was acting in the course and scope of his employment. In response, Littlefield has not produced uncontradicted testimony that Lewis was not acting in the scope of his employment. The record shows that Lewis’s main objective in driving at the time of the collision is in dispute. Although Lewis deposed that he planned to take the minivan home over the weekend to wash it for his employer, he also testified in an affidavit that he planned to use the minivan to take a utility trailer from his father-in-law’s house so that he could drop both the utility trailer and a riding lawn mower off at his father-in-law’s home on his way to work on Monday morning. Because the collision occurred after Lewis’s personal errand of stopping by his father-in-law’s house and while he was driving the minivan home to be washed, it is possible for a jury to determine that at the time of the collision, Lewis was on an errand within the scope of his employment.

Although Littlefield cites the rule that an employee going back and forth from work is not acting in the course and scope of employment, “that rule does not apply where the employer has provided the employee a vehicle which enables the employee more conveniently to perform a duty for the employer.” Several Georgia cases have concluded that summary judgment was inappropriate in similar cases. In Barfield, the defendant’s employee was driving his employer’s vehicle while on a personal trip to Tybee Island when he decided to drive to the store to buy a new camera for work. The employee changed his mind on the way to the store and turned back to Tybee Island when he was involved in the collision. This court held that a jury could determine that the employee’s choice to replace the camera “was ... an errand” within the scope of his employment.

In Remediation Resources v. Balding, the defendant’s employee drove his employer’s truck to Statesboro intending both to go out to eat with his girlfriend and to pick up some items for work when the collision occurred. This court held that a jury issue was present as to whether the employee was acting in the scope of his employment at the time of the accident.

Decided March 5, 2012.

Coleman Talley, George T. Talley, Edward F. Preston, for appellant.

Day & Crowley, Scott C. Crowley, Bobby L. Scott, Morgan & Morgan, Keenan R. S. Nix, Christopher J. Graddock, for appellee.

Cases cited by appellants are distinguishable from the facts of the case sub judice. In Hicks v. Heard, the Supreme Court of Georgia held that an “on call” employee was not acting within the scope of her employment when driving her employer’s vehicle home from school because she was not actively engaged in the employer’s business at the time of the collision. Similarly, in Collins v. Everidge, this court held that an employee was not acting within the scope of his employment when the collision occurred because although he had taken the employer’s truck home over the weekend so he could pick up other employees on Monday morning, the collision occurred in an outing unrelated to driving the truck to and from work.

Unlike the employees in Hicks and Collins, however, there is evidence that Lewis was engaging in his employer’s business at the time of his collision because although Lewis had made a personal stop on the way home, at the time of the collision, Lewis was driving the truck to his home so that it could be washed the next morning.

Based upon the above, the trial court did not err in denying Littlefield’s motion for summary judgment as to Bozeman’s respon-deat superior claim.

2. Lewis appeals the trial court’s denial of his motion to dismiss on the theory that if Littlefield were no longer a party to the lawsuit, venue would no longer be proper. Based upon our ruling in Division 1, this enumeration is rendered moot.

Judgment affirmed.

Barnes, P. J., and Dillard, J., concur.

       OCGA § 9-11-56 (c); Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010).

       Id.

       Id. at 623-624.

        Home Builders Assn, of Savannah, supra.

       (Footnote omitted.) Drury v. Harris Ventures, Inc., 302 Ga. App. 545, 546-547 (1) (691 SE2d 356) (2010).

       243 Ga. 776 (257 SE2d 186) (1979).

        Upshaw v. Roberts Timber Co., 266 Ga. App. 135, 136 (1) (596 SE2d 679) (2004).

       Id.

        Hicks v. Heard, 286 Ga. 864, 865-866 (692 SE2d 360) (2010).

        Allen Kane’s, supra at 780.

       Id.

       (Citation omitted.) Barfield v. Royal Ins. Co. of America, 228 Ga. App. 841, 845 (2) (492 SE2d 688) (1997).

       Id. at 842.

       Id. at 845 (2).

       281 Ga. App. 31, 32-33 (1) (635 SE2d 332) (2006).

       Id.

       Supra.

       161 Ga. App. 708, 708 (1) (289 SE2d 804) (1982).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A1508.
    In the Interest of T. F., a child.
    (724 SE2d 892)
   Adams, Judge.

T. F. appeals from an order entered on February 24, 2011 by the Juvenile Court of Tattnall County in which he was treated under the Designated Felony Act, OCGA § 15-11-63, and committed to the Department of Juvenile Justice for a period of five years, thirty months of which were to be served in confinement at a Youth Development Campus. We now reverse.

The record and hearing transcript show that on August 6, 2009, T. F. was charged with committing acts which, had he been tried as an adult, would have constituted the crimes of participation in criminal street gang activities and aggravated assault. At that time, T. F, who was born on November 8, 1993, was 15 years old. T. F. was adjudicated delinquent based on his commission of these acts and placed on High Intensity Team Supervision probation in October 2009.

In January 2011, a complaint, subsequently amended, was filed pursuant to OCGA § 15-11-2 (2) (B) alleging T. F. had exhausted all allowable sanctions while on probation, the most recent violation being that he had missed curfew by three hours. A petition to show cause was also filed on January 7, 2011, which required, inter alia, T. F. to appear and show “why his probation should not be revoked, and he complete a 30-day short term program.” At a hearing held on January 27, 2011, for which we have no transcript, T. F. entered an admission to the probation violation, and a dispositional hearing was held on February 10, 2011.

At the February 10 hearing, the State requested that T. F.’s probation be revoked and that he be sentenced as a designated felon. T. F.’s probation officer was at a training session, and the State introduced the testimony of a probation officer supervisor, who testified that his involvement with T. F. in the past was “just with collaboration with him and talking with him at school and in the office when he’s checked in here and there.” Further, this witness testified that the original recommendation in this case was for T. F. to be committed to a 30-day short term program, as had happened previously when he violated his probation, and on cross-examination he agreed that the complaints filed in this case did not “recommend anything as far as a DF offense as far as revoking his [probation].” However, on re-direct, the State sought to have the witness first read then testify to certain facts contained in a “disposition summary,” including, among other things, that T. F. was notified by the juvenile court judge at the January 27 proceedings that he would become a designated felon as of that date. However, defense counsel posed a hearsay objection to the witness testifying from the summary, which the juvenile court sustained, and no additional testimony from the summary was allowed and no additional testimony about what transpired at the January 27 hearing was introduced. Further, at the hearing defense counsel argued that T. F. could not be sentenced as a designated felon because the complaint filed against T. F. was a complaint for violation of probation, not for revocation of probation, and because proper procedures had not been followed concerning his status as a designated felon. The juvenile judge rejected these arguments and ordered that T. F. be committed to the Department of Juvenile Justice for five years and placed on restrictive custody for thirty months of that time. In the written commitment and restrictive custody order the judge specifically noted that he had given T. F. notice at the January 27 hearing that he would be adjudicated as a designated felon and that T. F. was now being “treated” pursuant to the provisions of the Designated Felony Act, OCGA § 15-11-63.

T. F. appeals from that order, contending, inter alia, that his counsel was ineffective, that the juvenile court lacked jurisdiction, and that he was not afforded due process of law. For the reasons that follow, we agree that the order of commitment and restrictive custody must be reversed.

1. In his first two enumerations of error, T. F. argues that the juvenile court lacked jurisdiction over him because he was over the age of 17 at the time the probation violation occurred. Further, he argues that his “trial” counsel was ineffective for failing to raise this issue below.

As is pertinent here, the record and transcript show that T. F. committed the probation violation at issue in this case shortly after he turned 17. Thus, T. F. argues that when the probation violation occurred he was no longer a “child” as that term is defined in OCGA § 15-11-2 (2) (A) and that pursuant to OCGA § 15-11-28 (d), the juvenile court did not have jurisdiction over any new action that was initiated against him after he reached the age of 17 years.

The State argues that jurisdiction was proper in this case because OCGA § 15-11-2 (2) (B) specifically provides that a “child” includes a person under the age of 21 years “who committed an act of delinquency before reaching the age of 17 years, and who has been placed under the supervision of the court or on probation to the court;...” But, as T. F. points out, this jurisdiction is limited by OCGA § 15-11-28 (a) (1) (F), which provides that “such jurisdiction shall be for the sole purpose of completing, effectuating, and enforcing such supervision on a probation begun prior to the child’s seventeenth birthday; ...” Construing these provisions, this Court has previously held that when a violation of probation occurs after the juvenile’s seventeenth birthday “[tjhe juvenile court’s jurisdiction . . . extend[s] only to revoking the juvenile’s probation for his previous adjudication of delinquency,” In the Interest of B. S. L., 200 Ga. App. 170, 171 (407 SE2d 123) (1991), and a delinquency petition alleging a probation violation is not sufficient to invoke that jurisdiction. Further, this Court has recognized that “before a juvenile court may revoke an order granting probation, a petition must be filed requesting such relief.” In re B. C., 169 Ga. App. 200, 201-202 (311 SE2d 857) (1983).

In this case the complaint and amended complaint were, on their face, for a “violation of probation,” not a revocation of probation. Moreover, neither the complaint nor the amended complaint contained any mention that T. F.’s probation might be revoked, and neither the complaint nor amended complaint referenced OCGA § 15-11-40 (b), which provides that a juvenile’s probation may be revoked on the grounds that the conditions for probation have not been met. Further, even though the show cause order required T. F. to appear and show why his probation should not be revoked, that order merely stated that he might then be sentenced to a 30-day short term program, as had been the case for past probation violations, and in no way indicated that T. F.’s probation might be revoked entirely and that he might then be sentenced under the designated felony provisions; indeed the probation supervisor testified that was not the recommendation for T. F. at the time the petitions were filed. Thus, considering all these circumstances here, we cannot conclude that the State filed a petition for probation revocation in this case. Accordingly, under the authority of In the Interest of B. S. L., the juvenile court lacked jurisdiction over this matter.

Moreover, as we further explained in B. S. L., “ ‘[jjurisdiction over the subject matter of a case cannot be conferred by agreement or consent. (Cits.) A judgment rendered by a court without jurisdiction of the subject matter is a nullity and is subject to reversal by the appellate courts on their on motion. (Cit.)’ [Cit.]” In the Interest of B. S. L., 200 Ga- App. at 171-172. It follows that the failure to raise this argument below did not result in waiver of this issue and the commitment and restrictive custody order must be declared void and reversed. Id. at 172.

Decided March 6, 2012.

Melissa E. Lawrence, Craig T. Pearson, Earle J. Duncan III, for appellant.

Tom Durden, District Attorney, Johnathan C. Gaskin, Assistant District Attorney, for appellee.

2. In light of our holding in Division 1, it is unnecessary for us to address T. F.’s remaining arguments.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       As stated above, T. F. was born on November 8, 1993, and the alleged probation violation that he missed curfew by three hours occurred in December 2010.

       We note that the provisions cited which are now contained in OCGA § 15-11-28 were formerly codified at OCGA § 15-11-5.

       For this reason it is unnecessary for us to consider whether trial counsel was ineffective for failing to raise this issue below. We note however that trial counsel did argue at the dispositional hearing that T. F.’s probation could not be revoked because no probation revocation petition had been filed “and according to case law, probation revocation is not the same thing as a violation of probation.”


author: Dillard, Judge.

text:
    A11A2408.
    PINNACLE BENNING, LLC et al. v. CLARK REALTY CAPITAL, LLC et al.
    (724 SE2d 894)
   Dillard, Judge.

Pinnacle Benning, LLC (“Pinnacle”) and Clark Pinnacle Ben-ning LLC (“CPB”), by and through Pinnacle, appeal the trial court’s dismissal of a complaint against Clark Realty Capital, LLC (“Clark Realty”), and Clark Benning, LLC (“Clark Benning”) (referred to collectively as “Clark”). Pinnacle contends that the trial court erred by (1) dismissing a count for declaratory judgment, (2) dismissing a count for a derivative action for failure to make a formal demand to file suit, and (3) dismissing the complaint without allowing Pinnacle to amend same. For the reasons set forth infra, we affirm the trial court’s dismissal of Pinnacle’s complaint but remand for the entry of an order specifying that these counts be dismissed without prejudice.

The undisputed record shows that CPB is a limited-liability company that is the managing member of Fort Benning Family Communities, LLC (FBFC). In this regard, Pinnacle is a 30% member of CPB and Clark Benning is a 70% member. Additionally, Pinnacle serves as the “Pinnacle Manager” of CPB and Clark Realty serves as the “Clark Manager.”

Pinnacle filed a complaint against Clark in September 2010, alleging that Pinnacle and CPB are entities that were set up to operate a military housing project at Fort Benning, Georgia, as part of a joint venture entered into by Clark Realty and American Management Services, a nonparty affiliate of Pinnacle. Pinnacle further alleged that, due to the corporate structure, Clark Realty controlled both CPB and FBFC and, therefore, Clark Realty “must exercise its good faith business judgment on behalf of both entities as a whole, creating inherent conflicts, especially when acting as FBFC in a fashion adverse to Pinnacle’s interests as the property manager at Fort Benning.”

After describing various and sundry allegations of impropriety with regard to related entities and joint ventures, the complaint contended that “Clark is using its control over [CPB] and FBFC to execute a private vendetta against Pinnacle that is solely to [Clark’s] financial benefit, and in derogation of the rights and interests of Pinnacle, the Joint Venture, [CPB], FBFC, the Army and the residents of Fort Benning.” Specifically, Pinnacle alleged that Clark sought to terminate Pinnacle’s property-management agreement and engaged an independent consulting firm to conduct audits of Pinnacle’s management operations at Fort Benning. Additionally, Pinnacle alleged that Clark employed “one of the most elite and expensive litigation firms in the country” shortly thereafter to assist “in executing [Clark’s] unlawful plan to usurp Pinnacle’s rights under the parties’ Joint Venture.” Thus, Pinnacle argued that Clark abandoned and betrayed its duties as manager of FBFC because FBFC “is funding [Clark’s] scorched earth audit and litigation campaign against Pinnacle.”

In response to these alleged wrongdoings, Pinnacle sought to audit Clark’s books and records, pursuant to Section 3.11 of CPB’s operating agreement, which provides that

[t]he Pinnacle Manager shall have the right at the Pinnacle Manager’s expense upon reasonable advance written notice to the Clark Manager to review and inspect the books and records of the Company or to cause the books and records of the Company to be audited by an independent third party auditor selected by the Pinnacle manager and reasonably satisfactory to the Clark Manager.

And Pinnacle claims that after sending the necessary written notice to Clark that it intended to exercise this right, Clark responded “by emailing a limited set of documents consisting of the Operating Agreements, the LLC formation agreements and the LLC tax returns for [CPB].” But according to Pinnacle, this response was insufficient to satisfy its rights under the operating agreement. Pinnacle further alleged that Clark ignored a subsequent letter indicating that Pinnacle had selected an independent third party to audit the books and records.

The remainder of Pinnacle’s complaint contained three counts, only two of which are at issue in this appeal. The first count alleged that Clark’s response to the written demand was “in breach of Section 3.11 of the Operating Agreement of [CPB]” and sought declaratory judgment that the relevant section “affords Pinnacle Benning the right to inspect and audit all books and records of the Company, including but not limited to all books and records pertaining to the Company’s business and purpose of acting as a managing member of FBFC.”

The second count of the complaint alleged that Clark

breached its duties of loyalty and failed to act in good faith with reasonable disinterested business judgment by. . . causing FBRC [sic] to expend substantial monies on professional fees to [the law firm and independent consulting firm], to the financial detriment of [CPB]; causing [CPB] to act solely for the private purposes of [Clark], and against the interests of the members of [CPB] collectively; and causing [CPB] to act against the interests of FBFC, and in derogation of its duties of disinterested and good faith business judgment as managing member of FBFC.

Thus, Pinnacle sought (1) “a full accounting of the costs to the Company resulting from Clark Realty’s conflicts of interest and breaches of duty” and (2) relevant refunds to CPB and FBFC from Clark Realty. In this count, Pinnacle also explained that it had not made a demand upon CPB to commence the cause of action because doing so would have been futile for a number of reasons, including that it “would in essence be asking Clark Realty, as the Clark Manager of [CPB], to authorize and commence suit against itself....”

Thereafter, Clark moved to dismiss Pinnacle’s complaint with prejudice for failure to state a claim upon which relief can be granted, arguing that Pinnacle sought an impermissible advisory opinion on the merits of a breach-of-contract action for rights that had already accrued, and that Pinnacle’s failure to make a demand of CPB required dismissal of the derivative action. The trial court agreed and dismissed Pinnacle’s complaint. This appeal by Pinnacle follows.

At the outset, we note that “[w]e review de novo a trial court’s ruling on a motion to dismiss.” And we recognize that in the case sub judice, Clark’s motion to dismiss, the trial court’s order granting same, and the parties’ arguments on appeal all frame the issues in the context of a failure to state a claim upon which relief can be granted. But as will be explained infra, Pinnacle’s claims were in actuality properly dismissed for a lack of subject-matter jurisdiction, and we affirm the dismissal under the right-for-any-reason doctrine. With the foregoing in mind, we will now address each of Pinnacle’s enumerations of error in turn.

1. Pinnacle first contends that the trial court erred by dismissing its count for declaratory judgment with regard to its right to audit Clark’s books and records. We disagree.

As detailed supra, Pinnacle alleged that Clark was in breach of the operating agreement by refusing to allow Pinnacle to inspect and audit all books and records, including those pertaining to Clark’s role as managing member of FBFC, when Clark responded “by emailing a limited set of documents consisting of the Operating Agreements, the LLC formation agreements and the LLC tax returns for [CPB].” Accordingly, Pinnacle sought a declaration that the relevant section of the operating agreement entitled Pinnacle to same. But the trial court held, and we agree, that Pinnacle did not seek guidance as to future actions but instead sought a determination as to whether Clark had already breached a contractual obligation by denying Pinnacle the rights afforded by the operating agreement.

It is well established that under the Declaratory Judgment Act, a superior court may enter declaratory judgment “in cases of actual controversy, and to determine and settle by declaration any justi-ciable controversy of a civil nature” when it appears that “the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations.” But a declaratory judgment may not be merely advisory in nature. Thus, when a “party seeking declaratory judgment does not show it is in a position of uncertainty as to an alleged right, dismissal of the declaratory judgment action is proper . . . ,”

In this regard, a party seeking declaratory judgment

must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.

This is so because the purpose of declaratory judgment “is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole.” Moreover, “[i]t has long been held that an action for a declaratory judgment does not lie where a simple action for breach of contract will give full and complete relief.”

And here, because the alleged rights of the parties have already accrued — Pinnacle has attempted to audit all of Clark’s books and records and maintains that it has the right to do so, but Clark has refused Pinnacle access to all but certain documents — there is no future action upon which the trial court may provide direction on this particular issue. Accordingly, when

the petition shows that the rights of the parties have already accrued and no facts or circumstances are alleged which show that an adjudication of the plaintiffs rights is necessary in order to relieve the plaintiffs from the risk of taking any future undirected action incident to their rights, which action without direction would jeopardize their interest, the petition fails to state a cause of action for declaratory judgment.

Thus, the trial court did not err in dismissing Pinnacle’s count for declaratory judgment.

Nevertheless, as detailed supra, Clark sought dismissal of this count under a theory that Pinnacle failed to state a claim upon which relief could be granted, and the trial court’s order appears to have granted the motion to dismiss under this same theory. Additionally, the trial court’s order does not specify whether this count was dismissed with or without prejudice, and we presume that actions have been dismissed with prejudice when a motion is granted under OCGA § 9-11-12 (b) (6). We must therefore remand to the trial court for the entry of an order dismissing the count without prejudice, because the involuntary dismissal of a declaratory-judgment action for want of justiciability does not operate as an adjudication on the merits and is instead an issue of subject-matter jurisdiction. Accordingly, dismissal must be without prejudice.

2. Pinnacle next contends that the trial court erred by dismissing the derivative action due to Pinnacle’s failure to make a formal demand upon CPB to bring the suit itself. We disagree.

Pinnacle argues that (1) the futility doctrine should apply to the statutory demand requirement, (2) Pinnacle should be deemed as having cured any defect or having actually satisfied this procedural requirement, and (3) the claims raised by Pinnacle included direct claims it was entitled to raise in its own name.

(a) Satisfaction of the Demand Requirement. OCGA § 14-11-801 provides that a member of a limited-liability corporation may commence a derivative action if five conditions are met, one of which requires the plaintiff to make written demand on the managers or members with authority to cause the limited-liability company to sue in its own right, and requesting that the managers or members take suitable action. Additionally, “the complaint must set forth with particularity the effort of the plaintiff to secure commencement of the action by the managers or the members who would otherwise have the authority to cause the limited liability company to sue in its own right.” But Pinnacle argues that it should have been excused from making such a demand because if it had done so, “it would have to write a letter to Clark Realty, as manager of [CPB], demanding that the company . . . sue Clark Realty for mismanagement.” Thus, Pinnacle urges us to adopt a futility-doctrine exception to the demand requirement. We decline to do so.

As previously noted by this Court with regard to the derivative-action provisions related to business corporations, “[ejarlier versions of the Business Corporation Code permitted a shareholder to be excused from the demand requirement if he alleged what efforts he had made to secure initiation of the action by the directors, or why such efforts had not been made.” But when our General Assembly revised the Business Corporation Code in 1988, the provision mandating ante litem demand was added. And today, the procedures to bring derivative actions in relation to business corporations, nonprofit corporations, and limited-liability companies all contain a similar demand requirement, with no futility exception. Thus, because we find the language of our statute and the intent of the General Assembly clear and unambiguous, we will not judicially create a futility exception out of whole cloth, and we affirm the trial court’s dismissal of Pinnacle’s derivative action as a result of this procedural defect.

We so hold despite Pinnacle’s argument that it “cured” any procedural defect by contemporaneously filing a demand letter with its response to the motion to dismiss. Despite the trial court’s nonconsideration of this argument, Pinnacle contends that the trial court should have stayed the proceedings after Pinnacle filed a demand letter on February 16, 2011. But we reject Pinnacle’s assertion because the statute explicitly requires that 90 days expire between the time a demand is made and when an action is commenced, and Pinnacle commenced its action by filing a complaint in September 2010. Accordingly, having already filed a complaint that admitted to noncompliance with the demand requirement, Pinnacle could not cure this procedural defect by later sending a demand letter, and the trial court was not required to stay the proceedings under these circumstances.

Finally, we do not address Pinnacle’s argument that pre-complaint letters to Clark should be deemed as having satisfied the demand requirement. Pinnacle first raised this argument in its response to Clark’s motion to dismiss, attaching copies of the purported “demand” letters. Clark then urged the trial court to disregard Pinnacle’s argument and the attached letters so as not to convert the motion to dismiss into a motion for summary judgment. In the end, this argument was neither addressed nor ruled upon by the trial court, which dismissed the derivative action based solely on its refusal to recognize a futility exception and Pinnacle’s failure to satisfy the demand requirement.

As with the declaratory-judgment action discussed in Division 1, the trial court’s dismissal of Pinnacle’s action was actually due to a lack of subject-matter jurisdiction based upon Pinnacle’s failure to meet a procedural prerequisite prior to filing suit. Accordingly, we — like the trial court — need not and do not address Pinnacle’s argument to look beyond the complaint which, on its face, admits to a lack of subject-matter jurisdiction, especially when Pinnacle has not alleged as error the trial court’s failure to do so.

Nevertheless, despite holding that the trial court properly dismissed this count, as with Division l, we must remand to the trial court for the entry of an order specifying that dismissal of this count be without prejudice because dismissal of a lawsuit for lack of jurisdiction requires such.

(b) Derivative vs. Direct Action. Pinnacle next argues that even in the absence of a demand, the trial court should have permitted its claim to proceed as a direct action. However, Pinnacle did not make this argument below; and it is well established that “[w]e are limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.” Accordingly, we cannot consider this argument for the first time on appeal. And to the extent Pinnacle argues that the trial court had a duty to sua sponte consider whether its derivative action was capable of proceeding as a direct action, we find no merit in this argument, especially when the complaint was properly dismissed for a lack of subject-matter jurisdiction and not a failure to state a claim upon which relief can be granted.

Decided March 6, 2012.

Page, Scrantom, Sprouse, Tucker & Ford, William L. Tucker, Marcus B. Calhoun, Jr., Thomas F. Gristina, April H. Hocutt, Greenberg Traurig, Joe D. Whitley, Stephanie L. Oginsky, Michael J. King, for appellants.

3. Finally, Pinnacle argues that the trial court should have permitted it to amend its complaint rather than dismissing same. However, no pretrial order appears in the record before us, which left Pinnacle free to amend its complaint until the entry of same. However, once the trial court determined that it lacked subject-matter jurisdiction over Pinnacle’s claims (even if the trial court did so under an erroneous theory), the trial court properly dismissed the complaint.

Nevertheless, we note that because we remand to the trial court for the entry of an order specifying that Pinnacle’s declaratory-judgment count and derivative-action count have been dismissed without prejudice for lack of subject-matter jurisdiction, Pinnacle would be permitted to recommence its action.

Accordingly, for all the foregoing reasons, we affirm the trial court’s dismissal of Pinnacle’s complaint but remand for the entry of an order dismissing these counts without prejudice.

Judgment affirmed and case remanded with direction.

Mikell, E J., and Boggs, J., concur.

Buchanan & Land, Jerry A. Buchanan, Lori M. Leonardo, for appellees.

       We note that this case is tangentially related to other litigation addressed by this Court in Am. Mgmt. Serv. E., LLC v. Fort Benning Family Cmtys., LLC, 313 Ga. App. 124 (720 SE2d 377) (2011).

       We note that the operating agreement itself appears nowhere in the record before us, but the parties do not dispute the wording of Section 3.11, quoted supra.

       Pinnacle does not appeal the dismissal of its third count.

        See OCGA § 9-11-12 (b) (6).

        Upper Oconee Basin Water Auth. v. Jackson County, 305 Ga. App. 409, 414 (2) (699 SE2d 605) (2010).

        See Empire Fire & Marine Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670, 673 (2) (507 SE2d 525) (1998) (“A dismissal of a declaratory judgment action on the ground the petitioner needs no direction from the court as to future action is a dismissal for want of subject matter jurisdiction.”); McGregor v. Stachel, 200 Ga. App. 324, 324-25 (1) (408 SE2d 118) (1991) (explaining that the written demand requirement for a derivative action “has nothing to do with the merits of the . . . claim but only with a procedural prerequisite for asserting such a claim,” which is a matter in abatement).

        See, e.g., Little v. Fleet Fin., 224 Ga. App. 498, 503 (1) (481 SE2d 552) (1997) (“A trial court’s judgment, right for any reason, will be affirmed.”).

        See OCGA § 9-4-1 et seq.

        Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Ass’n, 306 Ga. App. 794, 798 (1) (702 SE2d 910) (2010) (punctuation omitted).

        See id.

        Id. at 799 (1) (punctuation omitted).

        Farm & Home Life Ins. Co. v. Skelton, 235 Ga. App. 507, 508 (510 SE2d 76) (1998) (emphasis supplied) (punctuation omitted).

        Id. (punctuation omitted); see also Milton Frank Allen Publ’ns, Inc. v. Ga. Ass’n of Petroleum Retailers, Inc., 219 Ga. 665, 671 (1) (a) (135 SE2d 330) (1964) (“The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.” (punctuation omitted)).

        Braddy v. Morgan Oil Co., 183 Ga. App. 157, 158-59 (2) (358 SE2d 305) (1987); see also City of Summerville v. Sellers, 82 Ga. App. 361, 361 (61 SE2d 160) (1950) (holding that petition for declaratory relief should be denied when a breach of contract action would provide full and complete relief and petition lacked “an alleged necessity for an adjudication to guide and protect the petitioner from uncertainty and insecurity with respect to future conduct”).

        Compare Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 18 (413 SE2d 450) (1992) (“[Dleclaratory judgment is not available where a judgment cannot guide and protect the petitioner with regard to some future act — as where an insurance company has already denied a claim.”), and Builders Ins. Group, Inc. v. Ker-Wil Enters., Inc., 274 Ga. App. 522, 523 (2) (618 SE2d 160) (2005) (upholding dismissal of declaratory judgment action when insurance company had already denied coverage), with City of Atlanta v. Hotels.com, L.R, 285 Ga. 231, 236-37 (674 SE2d 898) (2009) (holding that declaratory judgment action was proper when rights had not already accrued and appellant wanted to know whether tax law applied to appellee, such that appellant would have the right to audit appellee’s books and records), and Dep’t of Human Res. v. Citibank F.S.B., 243 Ga. App. 433, 439 (2) (534 SE2d 422) (2000) (physical precedent only) (holding that declaratory judgment action was proper when appellant wanted to know its obligations under a contract prior to acting), and Mitchell Motors, Inc. v. Barnett, 249 Ga. App. 639, 642-43 (2) (549 SE2d 445) (2001) (holding that declaratory judgment action was proper to guide and protect appellee from uncertainty and insecurity with regard to his future use of a vehicle in his possession but for which appellant still held title).

        Milton Frank Allen Publ’ns, 219 Ga. at 671 (1) (a) (punctuation omitted).

        See supra notes 5-7 & accompanying text.

        See Ransom v. Holman, 305 Ga. App. 533, 535 (699 SE2d 849) (2010) (“In this matter, the trial court’s order did not specify whether [the appellant’s] second action was dismissed with or without prejudice, and therefore the dismissal was with prejudice by operation of statute.”); see also OCGA § 9-11-41 (b) (“The effect of dismissals shall be as follows: (1) A dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits; and (2) Any other dismissal under this subsection and any dismissal not provided for in this Code section, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, does operate as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise.”).

        See Thomas v. Atlanta Cas. Co., 253 Ga. App. 199, 202 (1) (558 SE2d 432) (2001) (physical precedent only) (“When a purported declaratory judgment action does not meet the criteria for a declaratory judgment, the trial court must dismiss the action without prejudice for lack of subject matter jurisdiction . . . .”); Empire Fire & Marine Ins. Co., 234 Ga. App. at 673 (2) (“An involuntary dismissal for lack of subject matter jurisdiction does not operate as an adjudication on the merits. Accordingly, dismissals of declaratory judgment actions for want of justiciability should be without prejudice.” (citations omitted)).

        See OCGA § 9-11-41 (b).

        See OCGA § 14-11-801 (l)-(5).

       OCGA § 14-11-801 (2).

       OCGA § 14-11-802.

        See, e.g., Fox Run Props. v. Murray, 288 Ga. App. 568, 573 (2) (b) (654 SE2d 676) (2007) (“The law does not require a futile tender or other useless act.” (punctuation omitted)).

        Dunn v. Ceccarelli, 227 Ga. App. 505, 509-10 (1) (b) (489 SE2d 563) (1997) (physical precedent only).

        See id. at 510.

        See OCGA § 14-2-742.

        See OCGA § 14-3-742.

        See OCGA § 14-11-801.

        See OCGA § 14-2-742 (1) (“A shareholder may not commence a derivative proceeding until... [a] written demand has been made upon the corporation to take suitable action . . . .”); OCGA § 14-3-742 (a) (1) (“No derivative proceeding may be commenced until. . . [a] written demand has been made upon the corporation to take suitable action . . . .”); OCGA § 14-11-801 (2) (“A member may commence a derivative action in the right of the limited liability company to recover a judgment in its favor if. . . [t]he plaintiff has made written demand on those managers or those members with [authority to cause the limited liability company to sue in its own right,] requesting that such managers or such members take suitable action . . . .”).

        See Dunn, 227 Ga. App. at 510 (1) (b) (physical precedent only). Accord Speetjens v. Malaco Inc., 929 S2d 303, 309 (I) (¶ 9) (Miss. 2006) (reviewing similar statute and holding that “Mississippi’s written demand statute does not contain an exception for futility, and unless and until the Legislature decides to include one, it does not exist”); Albers v. Edelson Tech. Partners L.P., 31 P3d 821, 829 (F) (1) (b) (¶ 33) (Ariz. 2001) (reviewing similar statute and holding that “[t]empting as it might be to imply a futility exception, we must follow the language of [the statute], which is clear and admits of no exception”); Allen v. Ferrera, 540 SE2d 761, 765 (I) (N.C. 2000) (reviewing similar statute and declining to apply futility exception). In declining to adopt a futility exception, we also note that the purpose of the demand requirement and its attendant 90-day waiting period has been aptly explained as providing “an opportunity to correct objectionable actions, without the expense of litigation” and a mechanism that “allows directors and managers to be alerted to and consider the [demanding party’s] position.” Speetjens, 929 S2d at 309 (I) (¶ 10). Additionally, “[e]nforcing the statute according to its terms also serves the salutary function of eliminating the need for courts to evaluate, as this court is asked to do in this case, whether failing to make a demand was excusable.” Albers, 31 P3d at 829 (F) (1) (b) (¶ 33).

        See OCGA § 14-11-801 (3) (requiring, before a member commences a derivative action, that “[90] days have expired from the date the demand was made unless the member has earlier been notified that the demand has been rejected by the limited liability company or unless irreparable injury to the limited liability company would result by waiting for the expiration of the 90 day period”).

        See OCGA § 14-11-802 (“In a derivative action, the complaint must set forth with particularity the effort of the plaintiff to secure commencement of the action by the managers or the members who would otherwise have the authority to cause the limited liability company to sue in its own right.”).

        See OCGA § 14-11-803 (“If the limited liability company commences an inquiry into the allegations made in the demand or complaint, the court may stay any derivative action for such period as the court deems appropriate.” (emphasis supplied)).

        See Cox Enters., Inc. v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000) (“If, on motion to dismiss for failure to state a claim, the trial court elects to consider matters outside the pleadings, ‘the motion shall be treated as one for summary judgment . . . .’ ”). We note that the trial court’s consideration of this argument would not have transformed the motion to dismiss into a motion for summary judgment because, as explained supra, the motion to dismiss was based on a lack of subject-matter jurisdiction. See Scovill Fasteners, Inc. v. Sure-Snap Corp., 207 Ga. App. 539, 539-40 (428 SE2d 435) (1993) (“The trial court considering a motion to dismiss for lack of jurisdiction has discretion to hear oral testimony or to decide the motion on the basis of affidavits and documentary evidence alone pursuant to OCGA § 9-11-43 (b).” (punctuation omitted)); see also McGregor, 200 Ga. App. at 324-25 (1) (holding that motion to dismiss for failure to satisfy demand requirement was not convertible to a motion for summary judgment).

        See McGregor, 200 Ga. App. at 324-25 (1) (explaining that the written demand requirement for a derivative action “has nothing to do with the merits of the . . . claim but only with a procedural prerequisite for asserting such a claim,” which is a matter in abatement); see also Stivali v. Aquiport Aylesbury, Inc., 244 Ga. App. 389, 389 (535 SE2d 551) (2000) (“While the trial court purported to grant the defendants’ motion for summary judgment, we consider the substance and function of a motion rather than its name .... [And] appellants’ motion challenged the trial court’s subject matter jurisdiction, which is a matter in abatement, and the trial court’s order was not a grant of summary judgment, but a dismissal of [the] claim.” (citation omitted)). Cf. Welch v. Ga. Dep’t of Trans., 276 Ga. App. 664, 665 (624 SE2d 177) (2005) (holding, in context of Georgia Tort Claims Act, that because the plaintiff “did not strictly comply with the statutory provisions for sending ante litem notice, the trial court had no subject matter jurisdiction over the suit” (punctuation omitted)); Ga. Ports Auth. v. Harris, 243 Ga. App. 508, 510 (1) (a) (533 SE2d 404) (2000) (in context of Georgia Tort Claims Act, noting that the satisfaction of the ante litem notice provision of the statute is “a question of subject matter jurisdiction”).

        See generally Ex Parte Safeway Ins. Co. of Ala., Inc., 990 S2d 344, 349-51 (Ala. 2008) (providing detailed explanation of motions to dismiss for lack of subject matter jurisdiction based on facial and factual challenges, and explaining that “a Rule 12 (b) (1) motion can allege either a facial challenge, in which the court accepts as true the allegations on the face of the complaint, or a factual challenge, which requires consideration of evidence beyond the face of the complaint”).

        See supra notes 17-18 & accompanying text.

        See McGregor, 200 Ga. App. at 324-25 (1); see also OCGA § 9-11-41 (b) (“The effect of dismissals shall be as follows: (1) A dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits; and (2) Any other dismissal under this subsection and any dismissal not provided for in this Code section, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, does operate as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise.”).

        Cotton States Mut. Ins. Co. v. Stallings, 235 Ga. App. 212,213 (a) (508 SE2d 688) (1998) (punctuation omitted); see also Lowery v. Atlanta Heart Assocs., P C., 266 Ga. App. 402, 404-05 (2) (597 SE2d 494) (2004) (“[W]e do not apply a ‘wrong for any reason’ rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court.”).

        See Anstadt v. Bd. of Regents of Univ. Sys. of Ga., 303 Ga. App. 483, 486-87 (1) (693 SE2d 868) (2010) (“[0]ur appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, ‘He must stand or fall upon the position taken in the trial court.’ ” (punctuation omitted)).

        See Phoenix Airline Servs., Inc. v. Metro Airlines, Inc., 260 Ga. 584, 586-87 (1) (397 SE2d 699) (1990) (trial court erred by not dismissing complaint for direct action that should have been brought as a derivative action, and defendant moved to dismiss based on same); Barnett v. Fullard, 306 Ga. App. 148, 151-54 (3) (701 SE2d 608) (2010) (trial court properly dismissed direct action that could have only been brought as a derivative action); SW Health & Wellness, L.L.C. v. Work, 282 Ga. App. 619, 623-27 (2) (639 SE2d 570) (2006) (trial court properly dismissed direct action that could have only been brought as a derivative action); Walker v. Virtual Packaging, 229 Ga. App. 124, 129 (5) (493 SE2d 551) (1997) (trial court properly raised issue sua sponte as to whether direct action should have more properly been pursued as a derivative action but was required to give parties the opportunity to respond to this argument).

        See OCGA § 9-11-15 (a) (“A party may amend his pleading as a matter of course and without leave of court at my time before the entry of a pretrial order. Thereafter the party may amend his pleading only by leave of court or by written consent of the adverse party. . . see also Tidikis v. Network for Med. Commc’n, 21A Ga. App. 807, 813 (5) (619 SE2d 481) (2005) (holding that appellant showed no basis for reversal on claim that trial court should have permitted leave to amend complaint rather than dismissing when there were no allegations that trial court prevented amendment of complaint or refused to allow amendment).

        See, e.g., Norton v. N. Ga. Foods, Inc., 211 Ga. App. 684, 687 (440 SE2d 263) (1994) (“The trial court properly dismissed the actions against all defendants for lack of subject matter jurisdiction.”).

        See OCGA § 9-2-61 (c) (providing that actions may be recommenced within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, when “an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction”); see also Bardo v. Liss, 273 Ga. App. 103,105 (2) (614 SE2d 101) (2005) (holding that trial court properly dismissed complaint with prejudice and declining to remand for the entry of an order of dismissal without prejudice, which would have permitted the plaintiff to recommence suit under the renewal provisions of OCGA § 9-2-61).


author: MlKELL, Presiding Judge.

text:
    A11A2420.
    DUNN-CRAFT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (724 SE2d 903)
   MlKELL, Presiding Judge.

Judy Dunn-Craft appeals the trial court’s grant of summary judgment to State Farm Mutual Automobile Insurance Company (“State Farm”), assigning error to the trial court’s conclusion that, as a matter of law, she was not eligible to “stack” or combine uninsured motorist (“UM”) coverage provided in four State Farm policies owned by another individual. Dunn-Craft also assigns error to the trial court’s conclusion that she is not entitled to UM coverage under her employer’s insurance policies with American Home Assurance Company (“American Home”) and National Union Fire Insurance Company (“National Union”). We affirm.

Summary judgment is appropriate if the pleadings and evidence show no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. On appeal from the grant or denial of summary judgment, an appellate court conducts a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.

So viewed, the record shows that on March 7, 2007, Dunn-Craft, an employee of the Atlanta Journal-Constitution, was driving behind a new employee on his newspaper delivery route when she noticed movement in bushes on her right, on the opposite side of the road. Concerned that a person or animal had been injured, Dunn-Craft turned around and proceeded back to the area where she stopped her car in the oncoming traffic lane with her lights on. She exited the car and noticed an injured deer on the side of the road. After investigating the incident and calling for help, Dunn-Craft was struck by a car driven by Oliver Dwayne Hutchins and suffered severe injuries.

The jeep Dunn-Craft was driving at the time of the accident was owned and insured by her boyfriend, Steven Vinson. Vinson owned three additional automobiles and insured all four of them with State Farm. Dunn-Craft was a listed driver on all four of these policies. Dunn-Craft felt that her injuries exceeded the $25,000 provided by Hutchins’ insurance coverage, and so she sought to stack the State Farm policies owned by Vinson.

Dunn-Craft brought suit against Hutchins and his employer and also served appellees. State Farm, American Home, and National Union filed answers in their own names, thereby becoming parties to the action. All three insurance companies filed motions for summary judgment. The trial court partially denied summary judgment to State Farm, finding that a question of material fact existed as to whether Dunn-Craft could recover UM benefits under the policy insuring the jeep, but granted summary judgment on State Farm’s claims that Dunn-Craft was not eligible to stack the other three policies in Vinson’s name because she was not the named insured or the spouse or resident relative of the named insured. The trial court also granted summary judgment to American Home, which issued a business auto policy to her employer, and National Union, which issued a commercial umbrella policy to her employer, finding that Dunn-Craft was not covered under these policies.

1. Dunn-Craft argues that the trial court erred in determining that she was not entitled to stack Vinson’s insurance policies. We disagree.

OCGA § 33-7-11 (a) (1) provides the basis for stacking by requiring insurance companies to have a provision in their contracts to pay the insured sums he shall be entitled to recover as damages from the owner or operator of an uninsured motor vehicle. The statute further creates two categories of insured persons. The first category consists of “the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise.” Coverage for this first classification attaches to the insured regardless of location and such insureds need not be in the insured automobile. Dunn-Craft’s argument that because she is a listed driver on Vinson’s State Farm renewal premium notices, she is a named insured entitled to stack UM coverage on the additional State Farm policies, is misguided. Georgia law is clear that listed drivers are not named insureds. Accordingly, because Dunn-Craft is neither Vinson’s relative nor a named insured on the State Farm policy, she does not fit into this category.

The second category consists of “any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies.” It is important to note that, “unlike the first provision, this one contains language that conditions status as an insured on the involvement of the ‘motor vehicles to which the policy applies.’ ” Because Dunn-Craft was standing near the jeep, and was not inside the vehicle, at the moment she was struck, the trial court correctly concluded that a genuine issue of material fact exists as to whether the jeep was involved in the incident, such that she could be eligible for UM coverage under this second category. However, if the jury finds that the jeep was involved in the incident, Dunn-Craft would be limited to recovering UM coverage only under the State Farm policy covering that vehicle and is not eligible to stack Vinson’s remaining UM policies. Accordingly, we find that the trial court correctly granted summary judgment to State Farm on the issue of whether Dunn-Craft is eligible to stack the UM coverage provided by the three additional policies issued to Vinson.

2. Dunn-Craft next argues that the trial court erred in finding that Cox Enterprises, which owns the Atlanta Journal-Constitution, properly waived UM insurance under both the American Home and National Insurance policies. However, we need not reach this remaining enumeration of error because the trial court found that Dunn-Craft “failed to evidence a genuine issue of material fact that the coverage provided by [the American Home and National Union policies] extends to the accident at issue.” Dunn-Craft did not raise the applicability of the policy to her accident on appeal and the argument is thus waived.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

Decided March 6, 2012.

Terry D. Jackson, for appellant.

Harper, Waldon & Craig, John B. Craig, Kevin P. Reardon, Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, Christopher T. Byrd, McLendon W. Garrett, Gray, Rust, St. Amand, Moffett & Brieske, Michael J. Rust, Christopher M. Ziegler, Cruser & Mitchell, William T. Mitchell, Andrew S. Ashby, Downey & Cleveland, Robert C. Harrison, for appellees.

       OCGA § 9-11-56 (c).

        Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640 (706 SE2d 652) (2010).

        See Ford v. Ga. Farm &c. Ins. Co., 191 Ga. App. 735, 736 (382 SE2d 659) (1989), citing Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 167 (268 SE2d 676) (1980).

       OCGA § 33-7-11 (b) (1) (B); Beard v. Nunes, 269 Ga. App. 214, 215 (603 SE2d 735) (2004) (uninsured motorist benefits calculated by stacking limits of all available uninsured motorist coverage and setting off limits of available liability coverage).

       OCGA § 33-7-11 (b) (1) (B); Beard, supra.

        Doe v. Rampley, 256 Ga. 575, 577 (1) (351 SE2d 205) (1987).

        Ga. Farm &c. Ins. Co. v. Wilkerson, 250 Ga. App. 100, 101 (549 SE2d 740) (2001) (although injured driver may be insured because he is an authorized driver of the insured vehicle, he is not the named insured when not listed as such on declaration page of policy). Accord Griffin v. State Farm &c. Ins. Co., 129 Ga. App. 179, 182 (1) (199 SE2d 101) (1973) (amending a policy to add a person as a driver of the insured vehicle does not make that person a “named insured”).

       OCGA § 33-7-11 (b) (1) (B).

       (Citation and punctuation omitted.) Beard, supra.

        Beard, supra (injured passenger falling under second category is only eligible to receive UM coverage from policy covering vehicle that was involved, and thus is not entitled to stack insurance policies issued for vehicles not involved in the accident). Compare Ford, supra (insured driver falling under first category entitled to stack UM coverage on his wife’s and his employer’s policies).

       The duty of the appellate court is to correct errors alleged to have been made in the trial court and not to manufacture them; therefore, it cannot consider any error alleged to have been made unless there is an enumeration. Continental Nut Co. v. Savannah Bank & Trust Co. of Savannah, 142 Ga. App. 509, 515 (236 SE2d 501) (1977).


author: MCFADDEN, Judge.

text:
    A11A2256.
    SANTIAGO v. THE STATE.
    (724 SE2d 793)
   MCFADDEN, Judge.

Victor Juan Santiago was convicted of an armed robbery at a fast food restaurant and of aggravated assault upon a restaurant employee working in the drive-through window. He argues that the evidence was insufficient to support the aggravated assault conviction and that he received ineffective assistance of counsel. Because the state presented no competent evidence that the victim was placed in reasonable apprehension of immediately receiving a violent injury, the evidence was insufficient to support the aggravated assault conviction, and we reverse the judgment on that conviction. Because Santiago has not shown that he was prejudiced by any alleged deficiencies of trial counsel, however, we affirm the judgment on the armed robbery conviction.

1. “On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain [whether] the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

(Citation omitted.) Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009); see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that around 11:00 p.m. on April 6, 2001, a man wearing a bandanna over his face and carrying a gun entered the dining room of a fast-food restaurant and shouted for everyone to put their hands up or he would shoot somebody. He also demanded that the people inside the restaurant get onto the floor. During the incident someone called the police, and a police officer arrived at the restaurant while the robber was still inside. The robber, later identified as Santiago, was apprehended. Police officers found in his pockets a note demanding money, receipts from the restaurant, and money belonging to the restaurant. They also found a gun on either a counter or the floor, within arm’s reach of Santiago. At the scene, Santiago told one of the officers that he was participating in a “mock robbery” with the knowledge of both the restaurant and its employees.

The jury found Santiago guilty of aggravated assault against the employee who had been working in the drive-through window. The charge of the indictment on which Santiago was found guilty alleged that he committed that offense by “unlawfully mak[ing] an assault upon the person of [the victim] with a handgun, an object which when used offensively against a person is likely to or actually does result in serious bodily injury.” See OCGA § 16-5-21 (a) (2).

Central to the offense of aggravated assault is that an assault as defined in OCGA § 16-5-20 be committed on the victim. Under that Code section, there are two ways to commit an assault: when a person attempts to commit a violent injury to the person of another, and when a person commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

(Citations and punctuation omitted.) Adams v. State, 293 Ga. App. 377, 378-379 (1) (667 SE2d 186) (2008). Santiago argues that there was no competent evidence that the drive-through window employee was aware that he had a gun, and thus no evidence that the employee had been placed in reasonable apprehension of immediately receiving a violent injury. See generally Rhodes v. State, 257 Ga. 368, 370 (5) (359 SE2d 670) (1987) (the act of pointing a firearm at another does not constitute aggravated assault where the victim is completely unaware that the firearm is pointed at him). We agree.

The drive-through window employee who was the alleged aggravated assault victim did not testify at trial. Two other restaurant employees testified, but neither of them saw what the victim did during the robbery. They did not testify that Santiago pointed or shot the gun at the victim, spoke to the victim, or had any other interaction with the victim. They did not testify that the victim did anything suggesting that he had seen the gun or heard Santiago’s threat to shoot somebody, or had any other reaction suggesting that Santiago either had attempted to violently injure him or had placed him in reasonable apprehension of receiving an immediate violent injury.

The only evidence concerning the victim’s reaction to the robbery was the following testimony of a police officer:

Q. In the course of your investigation, did you ever determine who called the police?
A. Yes, sir; [the victim].
Q. Were you able to determine how it was that he was able to call the police?
A. Yes, sir.
Q. How was that?
A. He went and climbed out the drive-through window and ran across the driveway into [a neighboring restaurant].

Where “a witness testifies to a conclusion of fact which could be within his knowledge and such testimony is admitted without objection, it cannot be attacked on review as being incompetent or insufficient.” (Citations and punctuation omitted.) Burg v. State, 298 Ga. App. 214, 216-217 (679 SE2d 780) (2009). Here, however, other testimony from the police officer made clear that the fact of the victim climbing out of the drive-through window could not have been within his personal knowledge. His testimony that the victim was able to call the police because he had climbed out of the window necessarily implies that the victim climbed out of the window before calling the police. But the officer testified that he did not go to the scene of the robbery until after he received a 911 dispatch. And when asked what he saw when he arrived at the scene, the officer responded: “Initially nothing. So I approached the door to go inside because it’s not unusual for them to tie up the store employees and stick them in the cooler or anything like that in the back room. At first, I didn’t see anyone, so I started entering the business.” The officer testified that he then saw another employee and Santiago inside the restaurant and proceeded to arrest Santiago.

From the officer’s description of what he saw when he arrived at the scene, he did not personally observe the victim climb out of the window; thus, his testimony regarding this event could not have been within his personal knowledge but appears to have been based upon information obtained from some other, unidentified, person or persons. As a result, the evidence that the victim climbed out of the window rested mainly on the veracity and competence of persons other than the testifying officer, making it hearsay. See OCGA § 24-3-1 (a); Williams v. State, 279 Ga. App. 83, 85 (2) (630 SE2d 601) (2006) (officers’ testimony that gun was within arm’s reach of defendant was hearsay, where officers had not personally observed gun in that location); see also Davis v. State, 289 Ga. App. 526, 527 (1) (657 SE2d 609) (2008) (officer’s testimony repeating statements of victim who was unavailable for trial was hearsay and its admission violated the defendant’s right to confrontation). Compare Willingham v. State, 296 Ga. App. 89, 90-91 (673 SE2d 606) (2009) (rejecting defendant’s claim that no competent evidence showed substance was marijuana where it did not “affirmatively appear that [a witness’s] testimony . . . was based on hearsay rather than personal knowledge”). That evidence is wholly without probative value and cannot be considered in determining the sufficiency of the evidence. Green v. State, 277 Ga. App. 867, 868 (1) (627 SE2d 914) (2006).

Indeed, the state does not argue on appeal that the police officer’s testimony was competent evidence supporting Santiago’s aggravated assault conviction. Instead, the state points to evidence that the drive-through section of the restaurant was close in proximity to the area where Santiago stood and argues that the victim could have seen Santiago with the gun, could have heard Santiago threaten to shoot, and consequently could have been apprehensive of immediately receiving a violent injury. It is mere speculation, however, to assume that the victim actually saw or heard Santiago simply because he could have seen or heard him. See Montford v. State, 254 Ga. App. 524, 527-528 (1) (b) (564 SE2d 216) (2002) (rejecting as speculative the state’s assertion that evidence showed victim of alleged aggravated assault had seen defendant, where evidence merely “[left] room for [that] possibility”). While the state may prove a victim’s reasonable apprehension by circumstantial evidence, Jackson v. State, 251 Ga. App. 578, 579 (1) (554 SE2d 768) (2001), speculation alone does not satisfy the sufficiency standard. Montford, 254 Ga. App. at 528 (1) (b).

Because there is no affirmative evidence that the victim saw Santiago with the gun or heard his threats to shoot, the evidence is insufficient to support Santiago’s aggravated assault conviction. See Montford, 254 Ga. App. at 527-528 (1) (b). Accordingly, the judgment on that conviction is reversed.

2. Santiago asserts that he received ineffective assistance of trial counsel. To prevail, he

must establish, pursuant to Strickland v. Washington, [466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984),] that counsel’s performance was deficient and that the deficient perfor-manee was prejudicial to his defense. A court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one. . . . In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

(Citations omitted.) Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007).

Santiago argues that his trial counsel performed deficiently by failing to assert Santiago’s right to a two-hour closing argument under OCGA § 17-8-73 and by failing to object as hearsay to a police officer’s testimony about the drive-through window employee’s actions and the officer’s testimony that the restaurant employees had disavowed Santiago’s claim that the incident was a “mock robbery.” Santiago also argues that another instance — in which trial counsel conducted part of a voir dire on the admissibility of his custodial statement in the jury’s presence — reflected counsel’s “fundamental misunderstanding of the law” and, although “not ris[ing] to a level of an arguable claim of ineffectiveness of counsel,” should be considered in assessing whether he was prejudiced.

Pretermitting whether counsel’s conduct at trial constituted deficient performance, Santiago has not shown that he was prejudiced. Santiago’s right to make a closing argument was not completely abridged; rather, his counsel appeared to have tailored the argument for presentation in a shorter period of time. See Hardeman v. State, 281 Ga. 220, 223 (635 SE2d 698) (2006). The record contains “no indication that, as a result of [any] time limit, the lawyer failed to argue a critical point or that the argument he did present was not as reasonably effective as it otherwise would have been.” Id. Moreover, the evidence that Santiago committed armed robbery was overwhelming. Santiago testified at trial that he entered the restaurant, walked to the register, and filled his pockets with money. Although he claims he was not carrying a gun, both eyewitnesses testified that he had a gun and he does not dispute that a gun was found on the scene near him. And the state elicited competent evidence against Santiago’s “mock robbery” defense; an employee who Santiago claimed was involved in the “mock robbery” expressly disavowed at trial any such involvement.

Under these circumstances, we find that Santiago has not carried his burden of showing the requisite prejudice, in that there is no reasonable probability that the outcome of his trial on the armed robbery charge would have been different had trial counsel sought more time for closing argument or objected to the portions of the officer’s testimony that Santiago claims were hearsay. See Boatright v. State, 289 Ga. 597, 602 (7) (713 SE2d 829) (2011); Hardeman, 281 Ga. at 223. In the absence of prejudice, there is no ineffective assistance of counsel. Boatright, 289 Ga. at 602 (7). We thus affirm the judgment on Santiago’s armed robbery conviction.

Decided February 17, 2012

RECONSIDERATION DENIED MARCH 7, 2012.

Adam M. Hames, for appellant.

Patrick H. Head, District Attorney, Irvan A. Pearlherg, John R. Edwards, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part.

Phipps, P. J., concurs. Andrews, J., concurs in the judgment only.


author: McFADDEN, Judge.

text:
    A11A2020, A11A2021.
    SECURED REALTY INVESTMENT, INC. et al. v. BANK OF NORTH GEORGIA; and vice versa.
    (725 SE2d 336)
   McFADDEN, Judge.

These appeals arise from a bank’s lawsuit to collect amounts due on two promissory notes given or guaranteed by the debtors. The trial court denied summary judgment to the bank as to one of the notes and granted summary judgment to the bank as to the other note. Because there are no genuine issues of material fact, we affirm the grant of summary judgment and reverse the denial.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citations and punctuation omitted.) Brooks v. Gwinnett Community Bank, 311 Ga. App. 806 (717 SE2d 647) (2011).

So construed, the evidence shows that Secured Realty Investment, Inc., executed a promissory note, identified as Note 20, in favor of Bank of North Georgia (“BNG”) in the principal sum of $911,557, and Dennis McDowell personally guaranteed the note. Secured also executed another promissory note, identified as Note 21, in favor of BNG in the principal amount of $3.8 million, and McDowell personally guaranteed that note as well. Secured and McDowell defaulted and failed to pay the amounts due to BNG under the terms of the notes and guarantees.

BNG sued Secured and McDowell to collect the amounts due. BNG subsequently moved for summary judgment, filing the affidavit of its senior vice-president, along with documentary evidence, which set forth the parties’ contracts and accounts, the debtors’ defaults and their total debt to BNG. After a hearing, the trial court denied summary judgment to the bank as to Note 20 and granted summary judgment as to Note 21. In Case No. A11A2020, Secured and McDowell appeal from the grant of summary judgment on Note 21; and in Case No. A11A2021, BNG appeals from the denial of summary judgment on Note 20.

Case No. A11A2020

1. Secured and McDowell contend that the trial court erred in granting summary judgment in favor of the bank because genuine issues of material fact remain as to their affirmative defenses. The contention is without merit.

Under OCGA § 9-11-56, BNG had the burden on its motion for summary judgment to establish that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Where, as here, the record shows that the promissory notes and guarantees were duly executed by the debtors and that they are in default, a prima facie right to judgment as a matter of law was established, and the burden shifted to Secured and McDowell to produce or point to evidence in the record which established an affirmative defense. Helton v. Jasper Banking Co., 311 Ga. App. 363, 363-364 (715 SE2d 765) (2011); Reece v. Chestatee State Bank, 260 Ga. App. 136, 138 (1) (579 SE2d 11) (2003); Miller v. Calhoun/Johnson Co., 230 Ga. App. 648, 649-650 (3) (b) (497 SE2d 397) (1998). In response to the bank’s motion for summary judgment, Secured and McDowell were not entitled to rest on allegations in their pleadings to establish affirmative defenses on which they would have the burden of proof at trial, but were required to come forward with or point to specific facts in the record to establish affirmative defenses. Southeast Reducing Co. v. Wasserman, 229 Ga. App. 1, 4-5 (2) (493 SE2d 201) (1997). Secured and McDowell failed to point to such specific facts establishing a triable issue as to their affirmative defenses of estoppel and breach of the implied covenant of good faith and fair dealing.

(a) “In order for an equitable estoppel to arise, there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury.” (Citation and punctuation omitted.) Griffin v. State Bank of Cochran, 312 Ga. App. 87, 94 (2) (a) (718 SE2d 35) (2011). Similarly, under the doctrine of promissory estoppel, “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” (Citation and punctuation omitted.) Georgia Investments Intl. v. Branch Banking & Trust Co., 305 Ga. App. 673, 675 (1) (700 SE2d 662) (2010). However, promissory estoppel does not apply to vague or indefinite promises, or promises of uncertain duration. Id.

In this case, Secured and McDowell point to no deception by BNG or any promise upon which they relied to their detriment, and instead point only to the fact that the bank had previously renewed other loans. But there is no evidence that BNG made any promise to renew the instant loan; indeed, Secured and McDowell acknowledge in their brief that “[i]t is undisputed that [BNG] did not attempt to renew Note 21.” Given the absence of any evidence of deception or a promise to renew, not to mention the complete lack of evidence of the specific terms and conditions of any purported loan renewal promise, the bank “satisfied its burden of showing the lack of a genuine issue of fact as to [the] estoppel defense. [Cit.]” Griffin, supra at 96 (2) (a).

(b) Secured and McDowell claim that BNG breached an implied contractual duty of good faith and fair dealing by using money from certain depository accounts to set off some of their other delinquent debts. We disagree.

Every contract implies a covenant of good faith and fair dealing in the contract’s performance and enforcement. The implied covenant modifies and becomes a part of the provisions of the contract, but the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability. Therefore, to prevail on their claim for breach of the duty of good faith and fair dealing, [Secured and McDowell] must establish that [BNG] owed a contractual obligation.

(Citations omitted.) Onbrand Media v. Codex Consulting, 301 Ga. App. 141, 147 (2) (c) (687 SE2d 168) (2009). However, Secured and McDowell have not claimed, let alone established, that there is a contractual obligation in the note or guarantee prohibiting the use of funds from deposit accounts to set off delinquent debts. On the contrary, BNG points to specific contract language allowing such a set-off. Because Secured and McDowell have not met their burden, “[i]t follows that the trial court properly granted summary judgment to the [bank] on this claim.” Id. at 148. See also WirelessMD v. Healthcare.com Corp., 271 Ga. App. 461, 468-469 (2) (610 SE2d 352) (2005).

Case No. A11A2021

2. BNG asserts that the trial court erred in denying its motion for summary judgment as to Note 20 because, as with Note 21, it established a prima facie case and the debtors then failed to meet their burden of pointing to specific evidence establishing an affirmative defense. We agree.

As explained above in Division 1, where, as here, the record shows that the promissory notes and guarantees were duly executed by the debtors and that they are in default, a prima facie right to judgment as a matter of law was established, and the burden shifted to Secured and McDowell, not to rest on allegations in their pleadings, but to point to evidence establishing an affirmative defense. See Helton, supra; Reece, supra; Miller, supra. For the same reasons discussed above in Division 1 as to Note 21, Secured and McDowell also failed to meet that burden as to their affirmative defenses of estoppel and breach of the implied covenant of good faith and fair dealing pertaining to Note 20.

With regard to Note 20, Secured and McDowell also defended on the ground that although it is undisputed that BNG retained the note, it assigned a mortgage which secured that note to a third party. In denying summary judgment, the only basis articulated by the trial judge at the summary judgment hearing was that he was “unsettled about this matter of the split, of the security deed being sold.” Presumably, the trial court was concerned about the possibility of a double payment by the debtors. However, the burden for avoiding such a possibility lies with Secured and McDowell.

The maker of a negotiable note and security deed must determine at the time of payment whether the payee is the holder of the instrument or the authorized agent of the holder in order to protect himself against liability for double payment. If the original grantee has assigned the instrument to another, who is a holder in due course, the burden rests with the maker to determine same and pay only the holder or his authorized agent. . . . The long and short of the matter is that the borrower must be as careful in repaying the debt as the lender presumptively was in making the loan.

(Citations and punctuation omitted.) Groover v. Peters, 231 Ga. 531, 532 (202 SE2d 413) (1973). Thus, while the borrowers must be careful in repaying the debt, the bank’s assignment of the security deed does not constitute a defense to their liability for defaulting under the note.

“The power of sale in a security deed simply gives to the grantee a remedy for the collection of his debt in a summary way. The power is conferred for the purpose of enabling the grantee to collect his debt.” (Citation and punctuation omitted.) Coleman Road Assoc. v. Culpepper, 214 Ga. App. 475 (1) (448 SE2d 83) (1994). The fact that the bank gave up this remedy for collecting the debt in a summary way does not eliminate Secured and McDowell’s obligations to repay the debt as required by the promissory note and guarantee; it simply means that the bank no longer has security for that debt. Indeed, the terms of Note 20 and the related guarantee require repayment regardless of any collateral securing the loan. The note provides that if the bank gives up any of its rights, it will not affect the duty of the debtors to pay the note. And the McDowell guarantee provides, among other things, that his liability to pay shall not be affected by “any release, modification ... or loss of any collateral security.” Moreover, should this liability to pay be discharged, “a deed purporting to secure a debt . . . which has been discharged is not a valid instrument and may be regarded as no more than a cloud on the title.” (Citations omitted.) Daniel F. Hinkel, 2 Pindar’s Georgia Real Estate Law and Procedure, § 21-28 (6th ed.).

Even if BNG had not transferred its collateral security, it still could opt to sue on the note and not attempt to satisfy the debt via that collateral.

[A] creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether he shall sue upon the note or exercise a power of sale contained in the deed, but he may do either, or pursue both remedies concurrently until the debt is satisfied. In other words, the holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. He may sue on the note or exercise the power of sale.

(Citations and punctuation omitted.) REL Dev. v. Branch Banking & Trust Co., 305 Ga. App. 429, 431 (1) (699 SE2d 779) (2010). Consistent with this well-settled principle, the guarantee provides that the bank shall not be required to enforce or exhaust any collateral security for indebtedness before enforcing the guarantee.

Because the record shows that BNG proved a prima facie case by showing that Secured and McDowell signed the promissory note and guarantee and are now in default, and as we have found no merit in the issues raised by Secured and McDowell in rebuttal, the trial court should have granted summary judgment in favor of BNG. See Phillips v. Plymale, 191 Ga. App. 338, 339-340 (1) (381 SE2d 580) (1989).

Decided March 7, 2012.

Charles M. Lane, for appellants.

Stokes, Lazarus & Carmichael, William K. Carmichael, Rachel Humphrey, for appellee.

Judgment affirmed in Case No. A11A2020.

Judgment reversed in Case No. A11A2021. Ellington, C. J., and Andrews, J., concur.