author:
MCFADDEN, Judge.
      DOYLE, Presiding Judge,

text:
    A13A1790.
    GREENSTEIN et al. v. BANK OF THE OZARKS. CEP-TEN MILE RESORTS, LLC et al. v. BANK OF THE OZARKS.
    A13A1791.
    (757 SE2d 254)
   MCFADDEN, Judge.

After CEP-Ten Mile Resorts, LLC defaulted on two loans, Bank of the Ozarks (hereinafter, the “Bank”) brought an action against it and several other defendants to enforce the two promissory notes and several guaranties associated with the loans. The Bank moved for summary judgment, and some of the defendants also moved for summary judgment. The trial court denied those defendants’ motions and granted summary judgment to the Bank against all of the defendants. These appeals followed.

In Case No. A13A1790, defendants Greg W. Greenstein, Jeffrey P. Goldstein, Gold.Net, Inc. and Green State, LLC (collectively, the “Greenstein Defendants”) appeal from the trial court’s order granting summary judgment to the Bank. They correctly argue that the Bank failed to demonstrate that it was the real party in interest entitled to enforce the notes and guaranties. Accordingly, we reverse the judgment in Case No. A13A1790. Given this disposition, we do not address the Greenstein Defendants’ other claim of error regarding the amounts that they allegedly owed under the notes and guaranties.

In Case No. A13A1791, defendants CEP-Ten Mile Resorts, LLC, Philip H. Weener, Eric J. Nathan, J. David Jones, Jr., J. David Jones, Inc., Commercial Equity Partners, Ltd., Three Martini Partners, LLC and CEP Investments, LLC (collectively, the “CEP-Ten Defendants”) appeal from the trial court’s order granting summary judgment to the Bank and denying their cross-motion for summary judgment. Unlike the appellants in Case No. A13A1790, the CEP-Ten Defendants do not challenge on appeal the evidence that the Bank was the real party in interest. Instead, they argue that the parties’ choice of Georgia law to govern the promissory notes and guaranties required the Bank to comply with Georgia’s statutory confirmation procedures following foreclosure of the real property securing the loans at issue, and that the Bank’s failure to do so precluded it from obtaining summary judgment. As detailed below, this argument provides no ground for reversal because Georgia law does not require confirmation in this case.

The CEP-Ten Defendants, however, also claim that the trial court erred in its ruling on the amounts that the Bank could recover under the notes and guaranties. Because it is not clear from the trial court’s order whether the trial court awarded summary judgment to the Bank on the amount it could recover, we vacate the order in Case No. A13A1791 and remand the case for further proceedings not inconsistent with this opinion.

1. Facts and procedural posture.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “On a motion for summary judgment the plaintiff, as movant, has the burden of establishing the absence or non-existence of any defense raised by the defendant.” City of Fayetteville v. Fayette County, 171 Ga. App. 13, 14 (2) (318 SE2d 757) (1984) (citations omitted). We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant. Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628 (725 SE2d 336) (2012).

So viewed, the evidence shows the following. The Bank seeks to enforce two promissory notes. The first note, dated November 22,2006, reflects CEP-Ten Mile Resorts’ promise to repay a loan from Farmers and Merchants Community Bank in the amount of $3,700,000. The other defendants in both cases each guarantied this loan, which was secured by real property located in Tennessee. The second note, dated May 28, 2008, reflects CEP-Ten Mile Resorts’ promise to repay a loan from First Choice Community Bank 1874 in the amount of $171,970.41. Again, each of the other defendants guarantied this loan, which also was secured by the Tennessee property. It is undisputed that the several notes and guaranties are governed by Georgia law. They provide either that they are to be governed by Georgia law or by the law of the state in which they were executed, and the parties appear to agree that they were all executed in Georgia.

CEP-Ten Mile Resorts defaulted. The Bank foreclosed, alleging that it was the successor in interest to the lenders on both notes. It employed a nonjudicial foreclosure process in Tennessee. It then brought this Georgia deficiency action on the notes against CEP-Ten Mile Resorts and the guarantors, and moved for summary judgment. Although similarly situated, the two groups of defendants adopted different strategies.

The Greenstein Defendants argued that the Bank failed to show that it was the original lenders’ successor-in-interest. They also argued that the Bank failed to prove the amounts owed under the notes.

The CEP-Ten Defendants filed a cross-motion for summary judgment on the ground that, because the Bank did not follow statutory confirmation procedures set forth in OCGA § 44-14-161 in foreclosing upon the Tennessee property, it could not seek to recover a deficiency judgment on the promissory notes. In their opposition to the Bank’s motion for summary judgment, they also incorporated the arguments made by the Greenstein Defendants.

The trial court granted summary judgment to the Bank against all of the defendants and denied the CEP-Ten Defendants’ cross-motion for summary judgment. As to the defendants’ liability to the Bank, the trial court held, among other things, that the Bank had established that it was the holder of the notes and guaranties and that Georgia law did not require confirmation proceedings following the foreclosure of out-of-state property. Although the trial court also held that “the Bank has proven the amounts owed under the [n]otes and associated [guaranties,” it granted summary judgment to the Bank “on liability only.”

Case No. A13A1790 (Greenstein Defendants)

2. The Bank’s interest in prosecuting the action.

“Every action shall be prosecuted in the name of the real party in interest.” OCGA § 9-11-17 (a). Below and on appeal, the Greenstein Defendants have argued that the Bank was not entitled to summary judgment because it had not established its status as the real party in interest, in that it had not presented admissible evidence that it was the successor-in-interest to the original lenders, Farmers and Merchants Community Bank and First Choice Community Bank 1874. See Sawgrass Builders v. Key, 212 Ga. App. 138 (1) (441 SE2d 99) (1994) (reversing grant of summary judgment to plaintiffs in breach of contract action, to which defendants asserted real-party-in-interest defense, because plaintiffs “failed to present any evidence establishing their status as the current holders of an interest in the contract at issue”). We agree.

The Bank attempted to show that it was the successor-in-interest of the original lenders through the affidavit of one of its special asset managers, Frank Felker. In his affidavit, Felker testified that Farmers and Merchants Community Bank had changed its name to First Choice Community Bank 1874 in 2007; that First Choice Community Bank 1874 had merged into First Choice Community Bank in 2010; that First Choice Community Bank had closed and the Federal Deposit Insurance Corporation (“FDIC”) had been appointed its receiver; and that the FDIC had transferred First Choice Community Bank’s assets to the Bank under a purchase and assumption agreement.

The Greenstein Defendants argue that the above-cited portions of the Felker affidavit do not demonstrate the Bank’s status as the real party in interest because they are not admissible evidence. “It is well settled that evidence that would be inadmissible at trial is also inadmissible upon summary judgment.” Atlanta Glass v. Tucker, 291 Ga. App. 760, 761 (663 SE2d 272) (2008) (citation omitted). This includes hearsay testimony. Id. at 762.

We do not find merit in all of the Greenstein Defendants’ challenges to Felker’s affidavit testimony. As to the closure of First Choice Community Bank, the appointment of the FDIC as receiver, and the transfer of First Choice Community Bank’s assets to Appellee Bank of the Ozarks, his testimony was admissible. Felker referred to and attached to his affidavit the purchase and assumption agreement between the FDIC and the Bank, which contained this information, and he established in his affidavit a sufficient foundation for the admission of the purchase and assumption agreement as a business record under OCGA § 24-8-803 (6). See Heritage Constr. Corp. v. State Bank & Trust Co., 316 Ga. App. 25, 27 (728 SE2d 703) (2012); Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 197 (1), (2) (715 SE2d 491) (2011).

But Felker’s affidavit testimony regarding two of the other links between the original lenders and the Bank — the 2007 name change from Farmers and Merchants Community Bank to First Choice Community Bank 1874 and the 2010 merger of First Choice Community Bank 1874 into First Choice Community Bank — is inadmissible. It does not meet the statutory requirements for an affidavit supporting summary judgment. OCGA § 9-11-56 (e) requires that such an affidavit “shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to-testify to the matters stated within.” Felker stated in his affidavit that its contents were based on his personal knowledge. But

while a statement in an affidavit that it is based upon personal knowledge is generally sufficient to meet the requirement that affidavits be made upon such knowledge, if it appears that any portion of the affidavit was not made upon the affiant’s personal knowledge, or if it does not affirmatively appear that it was so made, that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.

Goddard v. City of Albany, 285 Ga. 882, 887 (6) (684 SE2d 635) (2009) (citation omitted). Accord Jackson v. Cavalry Portfolio Svcs., 314 Ga. App. 175, 177 (723 SE2d 475) (2012); Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 811 (374 SE2d 544) (1988).

It does not affirmatively appear that Felker’s affidavit testimony regarding the 2007 name change and the 2010 merger was made upon his personal knowledge. The affidavit gave “no indication whether the ‘personal knowledge’ was gained through personal involvement with the matter, whether it was gained from others, or whether it was based merely upon review of [documents].” Sullivan v. Fabe, 198 Ga. App. 824, 828 (3) (403 SE2d 208) (1991) (citations omitted). See also Morris-Bancroft Paper Co., 188 Ga. App. at 811 (it could not be ascertained from affidavit which facts were “conclusively based upon the affiant’s personal knowledge and which of them may be based merely upon information that he received, in his capacity as appellant’s president, from a source other than his own personal knowledge”) (citations omitted). Although the dissent assumes that Felker obtained the knowledge from bank records, Felker neither identified any records as the source of his knowledge nor attached to his affidavit any records addressing the name change or the merger. See Taquechel v. The Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991) (finding affidavit insufficient where it was based in part on records that were neither attached to affidavit nor included in record and clearly identified by affidavit). Nor does his affidavit establish a basis for the admission of any such unidentified documents as business records. Cf. Angel Business Catalysts v. Bank of the Ozarks, 316 Ga. App. 253, 255-256 (1) (728 SE2d 854) (2012) (discussing basis upon which, under former Evidence Code, business records from former bank could be admitted in action brought by successor bank).

Furthermore, nothing in the record suggests that Felker learned of the name change and merger through personal involvement with those events. See Langley v. Nat. Labor Group, 262 Ga. App. 749, 752 (1) (586 SE2d 418) (2003) (finding that statements in affidavit were inadmissible hearsay because, “although reciting that it was made upon personal knowledge, the affidavit does not reflect that [affiant] was present in the context of the facts”). There is no evidence that he was associated with Farmers and Merchants Community Bank, First Choice Community Bank 1874 or First Choice Community Bank at the time of those events. Compare Angel Business Catalysts, 316 Ga. App. at 255 (1) (affiant held same position in former bank that he held in successor bank). To the contrary, he testified in his deposition that, before joining Bank of the Ozarks, he worked at a different institution — Unity National Bank.

Under these circumstances, and “giving the [Greenstein Defendants] the benefit of any doubts arising from this evidence, we must conclude that [Felker’s] information about [the name change and merger] did not come from his personal knowledge.” Sullivan, 198 Ga. App. at 828 (3) (citation omitted). Consequently, those portions of Felker’s affidavit concerning the name change and merger cannot be considered in determining the Bank’s entitlement to summary judgment. Goddard, 285 Ga. at 887 (6); Sullivan, 198 Ga. App. at 829 (3).

Without the assertions in the Felker affidavit, the Bank did not present any evidence to show either that Farmers and Merchants Community Bank changed its name to First Choice Community Bank 1874 or that First Choice Community Bank 1874 merged into First Choice Community Bank. Consequently, the Bank has not shown that First Choice Community Bank had a right to enforce the promissory notes. See OCGA § 11-3-301 (providing that person entitled to enforce instrument means, pertinent to this case, holder of instrument or nonholder in possession of instrument who has rights of holder); see also OCGA § 11-1-201 (20) (a) (defining “holder” to mean, pertinent to this case, person in possession of negotiable instrument payable “to an identified person that is the person in possession”) (emphasis supplied). For that reason, the Bank has not shown that it obtained any right to enforce the promissory notes as a transferee of those instruments under OCGA § 11-3-203 (b) (providing that a transferee of an instrument obtains “any right of the transferor to enforce the instrument”) (emphasis supplied).

Accordingly, the Bank did not demonstrate that, by purchasing the assets of First Choice Community Bank, it became the successor-in-interest to either Farmers and Merchants Community Bank or First Choice Community Bank 1874. Because “[t]he burden of proof was upon the plaintiff [Bank], as movant for summary judgment, to show [its entitlement to enforce the promissory notes],” Bulloch County Bank v. Dodd, 226 Ga. 773, 775 (2) (177 SE2d 673) (1970) (citation omitted), and the Bank did not meet this burden, it was not entitled to summary judgment on the promissory notes that CEP-Ten Mile Resorts had made to Farmers and Merchants Community Bank and First Choice Community Bank 1874, or on the guaranties associated with those notes. See Green v. Cavalry Portfolio Svcs., 305 Ga. App. 843-844 (700 SE2d 741) (2010) (reversing grant of summary judgment to plaintiff in suit on automobile sales contract because there was no evidence of a link in the chain of written assignments necessary to establish plaintiff was real party in interest); Wirth v. Cach, LLC, 300 Ga. App. 488, 489-491 (685 SE2d 433) (2009) (reversing grant of summary judgment to plaintiff in action on open account where there was no evidence establishing links between original lender and plaintiff that would show plaintiff was real party in interest); Ponder v. CACV of Colorado, 289 Ga. App. 858, 859 (658 SE2d 469) (2008) (reversing summary judgment to plaintiff in action on debt where record lacked evidence supporting plaintiff’s allegation that it was successor-in-interest to right to recover on debt). Under these circumstances, the Greenstein Defendants had no obligation to come forward with evidence to establish their defense. See City of Fayetteville, 171 Ga. App. at 14 (2).

Our decision in Capital City Developers v. Bank of North Ga., 316 Ga. App. 624 (730 SE2d 99) (2012), to which the trial court cited in granting summary judgment, is inapposite. While that decision discusses the prima facie case a plaintiff must make in an action on a promissory note, the defendant in that case did not challenge the plaintiff’s prima facie case, and the decision does not address the issue of a plaintiff that was not a real party in interest. See id. at 625 (1).

Accordingly, we reverse the trial court’s grant of summary judgment to the Bank in Case No. A13A1790.

3. Amounts owed to the Bank.

In light of our reversal of the grant of summary judgment to the Bank in this case, we need not address the Greenstein Defendants’ other claim of error, which concerns the trial court’s ruling on the amounts they allegedly owed the Bank.

Case No. A13A1791 (CEP-Ten Defendants)

4. Confirmation proceedings.

Unlike Case No. A13A1790, Case No. A13A1791 does not involve an appellate challenge to the Bank’s evidence that it was the real party in interest. Instead, the CEP-Ten Defendants argue that the trial court erred in granting summary judgment to the Bank because the Bank failed to comply with Georgia’s statutory confirmation procedures before obtaining the judgment, despite choice of law provisions that applied Georgia law to the promissory notes and guaranties. We find no merit in this argument.

While it is true that, under their terms, the notes and guaranties are to be construed under Georgia law, Georgia law did not require confirmation in this case. Georgia’s confirmation statute, OCGA § 44-14-161 (a), provides that no action may be taken to obtain a deficiency judgment on a loan secured by real property unless, within 30 days after the foreclosure sale on the property, the person instituting foreclosure proceedings obtains confirmation of the sale from the superior court of the county in which the land is located. But we have repeatedly held that OCGA § 44-14-161 (a) does not apply where, as here, the property foreclosed upon is not located in the state of Georgia. See, e.g., Kelly v. American Fed. Sav. & Loan Assn., 178 Ga. App. 542, 543 (2) (343 SE2d 755) (1986); Tally v. Atlanta Nat. Real Estate Trust, 146 Ga. App. 585, 588 (1) (246 SE2d 700) (1978) (interpretingpredecessortoOCGA § 44-14-161 (a)); Colodny v. Krause, 141 Ga. App. 134, 136 (3) (232 SE2d 597) (1977) (interpreting predecessor to OCGA § 44-14-161 (a)); Goodman v. Nadler, 113 Ga. App. 493, 495 (1) (148 SE2d 480) (1966) (interpreting predecessor to OCGA § 44-14-161 (a)).

Instead, in such instances, “the obtention of a deficiency judgment in a Georgia court against owners of foreclosed property after a foreclosure in another state is governed by the laws of the state where the foreclosure occurred. If confirmation is not required under that state’s law, it is not required in Georgia.” Kelly, 178 Ga. App. at 543 (2) (citations omitted). The statutes of Tennessee, where the property at issue is located, do not contain a confirmation requirement. See generally Tenn. Code Ann. §§ 35-5-101 through 35-5-118. The CEP-Ten Defendants have cited no authority showing that confirmation is otherwise required under Tennessee law, and we have found none. Accordingly, their argument that the Bank failed to obtain confirmation of the Tennessee foreclosure sale presents no ground for reversing the grant of summary judgment to the Bank.

5. Amounts owed to the Bank.

The CEP-Ten Defendants also argue that the trial court erred in its ruling on the amounts that the Bank could recover under the promissory notes and guaranties. The trial court’s order, however, does not clearly grant summary judgment on this issue. At one place in the order, the trial court states that he “finds the Bank has proven the amounts owed under the [njotes and associated [gjuaranti.es.” At another place, however, the trial court states that he grants the Bank’s motion for summary judgment “on liability only.”

Given this ambiguity, we vacate the order granting summary judgment in Case No. A13A1791 and remand the case to the trial court for the entry of an order that reflects the issues upon which the trial court finds summary adjudication appropriate in this case, or for other proceedings not inconsistent with this opinion.

Judgment reversed in Case No. A13A1790.

Barnes, R J., Ellington, P. J., and Boggs, J., concur. Phipps, C. J., Doyle, P. J., and Branch, J., dissent.

Judgment vacated and case remanded with direction in Case No. A13A1791.

Phipps, C. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Boggs and Branch, JJ., concur.

DOYLE, Presiding Judge,

concurring in part and dissenting in part.

I concur fully with all that is said in Case No. A13A1791.

I dissent in Case No. A13A1790 because I disagree with the majority’s conclusion in Division 2.1 believe that the Bank presented sufficient evidence to establish that it is entitled to enforce the notes and guaranties.

As an initial matter, based on the documents and on Felker’s affidavit, the Bank has established that it is the real party in interest as a transferee of the notes and guaranties.

Moreover, the Greenstein Defendants failed to establish a genuine issue of material fact as to the Bank’s right to enforce the notes and guaranties. Contrary to the conclusion of the majority, Felker’s affidavit, which was based “upon [his] personal knowledge” is sufficient to support the trial court’s finding that the Bank presented evidence that it has present title to the notes and guaranties and was authorized to enforce them. Felker averred as the Bank’s employee that “[o]n March 7, 2007, [Farmers & Merchants] changed its name to First Choice Community Bank 1874”; and “[o]n March 26, 2010[,] First Choice 1874 merged with First Choice Community Bank, and First Choice thereby succeeded to the rights of First Choice 1874.” As a current employee of the Bank, which succeeded in interest to the business records of First Choice, Felker was competent to testify as to information contained in the Bank’s records in the present case. The Greenstein Defendants did not respond to those statements with any significant claim that the notes and guaranties were negotiated, transferred, or assigned to any entity outside the Farmers/First Choice 1874/First Choice chain prior to the FDIC’s receivership of First Choice’s assets or that the notes or guaranties were paid in full or released prior to the suit. Instead the Greenstein Defendants made only the bald assertion that sufficient evidence was not presented. Such an assertion did not meet the requirement of OCGA § 9-11-56 (c) sufficient to create a dispute as to whether the Bank, as the current entity in physical possession of the instrument with evidence of successor rights to the title of First Choice’s assets, is not entitled to enforce the instrument. “ ‘Although an opposing party is entitled to the benefit of reasonable inferences, an inference cannot be based on mere conjecture or probability, or on evidence that is too uncertain or speculative.’ ”

Decided March 28, 2014.

Schreeder, Wheeler & Flint, John A. Christy, Jared W. Heald, for appellants (case no. A13A1790).

Weener & Nathan, Philip H. Weener, Eric J. Nathan, Matthew L. Reeder, for appellants (case no. A13A1791).

Jones & Walden, Leon S. Jones, L. Paul Owens III, Monica L. Vining, for appellee.

I am authorized to state that Chief Judge Phipps and Judge Branch join in this dissent.

       See OCGA §§ 11-3-203 (b) (“Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course”), 11-3-301; Lee v. Muller, 200 Ga. App. 139, 140 (1) (407 SE2d 108) (1991) (explaining the difference of a transfer of an instrument and the negotiation of an instrument); Northeast Factor & Discount Co. v. Mtg. Investments, 107 Ga. App. 705 (131 SE2d 221) (1963) (“transfer for value, without indorsement, vests in the transferee such title as the transferor had, and the transferee may bring suit thereon in his own name”); Robbins v. Welfare Financial Corp., 95 Ga. App. 90, 92 (1) (96 SE2d 892) (1957) (transferee of a negotiable instrument may effectuate suit in its own name even without evidence of a written assignment or endorsement of the instrument by named payee).

       See, e.g., Phillips v. Mtg. Electronic Registration Systems, Case No. 09-CV-2507 at *4-*8 (II) (D.C. N.D. Ala., decided Apr. 5, 2013) (employee of successor institution may competently testify to personal knowledge garnered from documents received from predecessor institution in order to fulfill summary judgment requirements). See also United States v. Jakobetz, 955 F2d 786, 801 (2nd Cir. 1992) (stating that “[ejven if the document is originally created by another entity, its creator need not testify when the document has been incorporated into the business records of the testifying entity”); United States Bank Nat. Assoc. v. American Screw & Rivet Corp., Case No. 09-C-7312 (D.C. N. Ill., Aug. 10, 2010) (order granting summary judgment finding that employee of receiving bank who acquired assets through the FDIC was competent to offer testimony under Fed. R. Evid. 803 as to the failed hank’s records); In re: Trafford Distributing Center, 414 BR 858, 862 (1) (U.S.B.C. S.D. Fla., Sept. 1, 2009) (“Personal knowledge can come from review of the contents of business files and records.”) (punctuation omitted).

       Of the numerous guarantors, only the Greenstein Defendants contested the Bank’s standing as the real party in interest, not because there is any real question that the name change and merger took place, but instead by interposing generic responses to the Bank’s Statement of Material Facts Not in Dispute “that [the Bank] has [failed to] establish [these facts] through the proper submission of evidence into the record.” While a plaintiff is required to prove its case, here, where the Greenstein Defendants admitted in their answers that CEP-Ten signed the first and second promissory notes and that they signed the first and second guaranties, these tactics appear interposed to delay payment of a legitimate debt rather than as an actual challenge to the evidence.

        Dew v. Motel Properties, 282 Ga. App. 368, 373 (2) (638 SE2d 753) (2006).


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A13A1940.
    JONES v. THE STATE.
    (757 SE2d 261)
   Phipps, Chief Judge.

In January 2013, a jury found Michael Jones guilty of driving under the influence of alcohol with an unlawful blood alcohol concentration (“DUI per se”), driving under the influence of alcohol to the extent it was less safe for him to drive (“DUI less safe”), and speeding. For sentencing purposes, the trial court merged the DUI less safe count into the DUI per se count, and sentenced Jones for DUI per se and speeding. After his convictions were entered, Jones moved for a new trial, which the trial court denied.

On appeal, Jones contends that the trial court erred by admitting evidence of a prior (2005) conviction for driving under the influence of alcohol, pursuant to OCGA § 24-4-404 (b), because the prior conviction evidence was not relevant to, or probative of, any issue at trial aside from his character. Jones further contends that even if the prior conviction evidence had some relevance and was admissible under OCGA § 24-4-404 (b), it should have been excluded under OCGA § 24-4-403, because its unfair prejudicial effect substantially outweighed its probative value. Because evidence of the prior conviction was improperly admitted, we reverse the conviction for DUI per se, and vacate the guilty verdict on the DUI less safe count; because the evidence meets the standard of Jackson v. Virginia, the case may be retried on the DUI counts. Because evidence of the prior conviction would have had no impact on the speeding offense, we affirm the conviction for speeding.

The evidence at trial showed the following. At about 11:45 p.m., on January 21, 2011, Jones was stopped by a police officer for driving in excess of the posted speed limit. The officer noticed that Jones’s eyes were red and watery, and that an odor of an alcoholic beverage was coming from inside the vehicle. Jones, the sole occupant of the vehicle, denied that he had been drinking. At the officer’s request, Jones exited his vehicle; at that point, the officer identified the source of the odor of alcohol as Jones’s breath. Still, Jones denied that he had been drinking. Jones showed clues of impairment on each of three field sobriety evaluations the officer administered, and Jones ultimately admitted that earlier that day he had drunk two beers at a bar. The officer formed the opinion that Jones was a less safe driver, and arrested him. Jones was read implied consent warnings, and he consented to state-administered chemical testing of his breath. Jones registered blood alcohol levels of 0.147 and 0.139, in sequential breath samples administered on an Intoxilyzer 5000.

In February 2011, Jones was charged by accusation with DUI per se, DUI less safe, and speeding. In June 2011, the state moved to introduce at trial, as a similar transaction, evidence of a 2005 conviction for DUI less safe, for the purposes of showing Jones’s “bent of mind, course of conduct [,] identity, knowledge, lack of mistake, motive, and intent [,] . . . [and] willingness ... to operate a motor vehicle after his . . . ability to do so safely has been compromised by the ingestion of intoxicants.”

In December 2012, the state filed an amendment to its similar transaction motion, stating the purposes for which it sought to introduce the prior conviction evidence as “including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” A hearing on the state’s motion was conducted at trial prior to opening statements. The trial court orally ruled that the state could introduce evidence of the prior conviction as it concerned the DUI less safe charge for the purpose of showing “[k]nowledge and intent,” that is, “the intent to drive knowing that he was less safe . . . because he was before.” The trial court found that Jones’s prior DUI conviction was

probative of the fact that he’s aware of what [drinking alcohol] did to him the first time and this is what it did to bim the second time. We’re talking about less safe. We’re not talking about limits. . . . [F]orget about the levels. We’re talking about what the substance did to him, within his knowledge.... [H]e knows, better than anybody does, what alcohol does to him this time.

Therefore, at trial, the state adduced evidence that in March 2005, Jones drove a vehicle when he was under the influence of alcohol to the extent that it was less safe for him to do so, and with an unlawful blood alcohol concentration. On that prior occasion, Jones was stopped by a police officer for, inter alia, failing to maintain his lane of traffic and following too closely. The officer testified that he had smelled a strong odor of an alcoholic beverage coming from Jones and observed that Jones’s eyes were bloodshot and glassy and that his speech was slurred. The officer testified that Jones admitted to him that he had drunk “a few” beers, later stating that he had drunk about four “adult beverages.” Jones showed clues of impairment on field sobriety tests. The officer formed the opinion that Jones was less safe to drive and arrested him for driving under the influence. Jones was read implied consent warnings, and consented to chemical testing of his breath. Jones registered blood alcohol levels of 0.195 and 0.199 in two sequential breath samples administered on an Intoxilyzer 5000.

1. Jones contends that the trial court erredby admitting evidence of his prior DUI conviction to prove that he had the requisite intent and knowledge to violate OCGA § 40-6-391 (a) (1) and OCGA § 40-6-391 (a) (5), because the prior conviction evidence was not relevant to, or probative of, any issue at trial aside from his character.

Georgia’s new Evidence Code became effective and pertinently applies to trials conducted after January 1, 2013. The new Code adopted, in large measure, the Federal Rules of Evidence, and its sections are comparable to corresponding federal rules. “Because of this similarity[,] it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.”

OCGA § 24-4-404 (b) pertinently provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

The Eleventh Circuit utilizes a three-part test for evidence of other crimes or acts to be admissible pursuant to Federal Rule of Evidence 404 (b): (1) it must be relevant to an issue other than the defendant’s character; (2) there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question; and (3) the probative value of the evidence cannot be substantially outweighed by undue prejudice, and the evidence must satisfy Federal Rule of Evidence 403.

Before the new Code became effective, appropriate purposes for admitting similar transaction evidence under Georgia law included course of conduct and bent of mind. Even then, it was held that “[t]he ultimate issue in determining the admissibility of evidence of other crimes [was] not mere similarity but relevance to the issues in the trial of the case.”

This appears to be the first appellate case under the new Evidence Code to address the admissibility of evidence of a prior DUI conviction in a DUI trial for the purposes of showing intent and knowledge of the accused. Before the new Evidence Code became effective, this court held that “bent of mind and course of conduct [were] proper purposes for the admission of similar transaction evidence in cases involving allegations of less safe DUI,” and that

evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

But the new Evidence Code does not explicitly list either bent of mind or course of conduct as permitted purposes to admit similar transactions evidence.

A trial court’s decision to admit similar transaction evidence is reviewed for a “clear abuse of discretion.”

(a) Intent. A violation of OCGA § 40-6-391 (a) (1) (DUI less safe) is a crime, and thus must contain the elements, as set forth in OCGA § 16-2-1 (a), required to constitute a crime in Georgia. Pursuant to OCGA § 16-2-1 (a), “[a] ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” But,

[c]riminal intent does not always equate to mental fault, guilty knowledge, or purposeful violation of the law. . . . [U] nless the particular provision indicates otherwise, the traffic offenses defined in Chapter 6’s Rules of the Road are “strict liability’ offenses, meaning that they can be committed without a culpable mental state.... They do not require the specific intent or wrongful purpose that is an element of other crimes, but they do require the defendant to have voluntarily committed the act that the statute prohibits, which typically involves driving at a particular time and place ... or in a particular way.

The general criminal intent required for strict liability offenses is “simply the intent to do the act which results in the violation of the law, and not the intent to commit the crime itself.”

“DUI is a crime of general, not specific, intent.” In Prine v. State, this court stated:

In a crime of general intent, the “intent” required is proved through proof of the commission of the act itself. In a DUI [less safe] case . . . the act consists of (1) driving, (2) after consuming alcohol to the extent that one is (3) a less safe driver. There is no proof of intent beyond proof of the act. To prove DUI, the State need not prove intent to commit the crime.

“Evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.” “The relevance of other crimes evidence to intent is determined by comparing the defendant’s state of mind in committing both the extrinsic and charged offenses.”

Where the issue addressed is the defendant’s intent to commit the offense charged, the relevancy of the extrinsic offense derives from the defendant’s indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses. The reasoning is that because the defendant had unlawful intent in the extrinsic offense, it is less likely that he had lawful intent in the present offense.

In this case, the evidence adduced at trial, absent the similar transaction evidence, was sufficient to enable a rational trier of fact to find that Jones intended to drive after he had consumed alcohol to the extent that he was a less safe driver on January 21, 2011. The additional evidence that he had done so on a prior occasion did not logically tend to prove that Jones did so in this instance, because no culpable mental state was required to commit the crime in the first place. Accordingly, the trial court erred in permitting the similar transaction evidence to be admitted to prove intent.

Citing United States v. Delgado, the state asserts: “When a defendant enters a plea of ‘not guilty,’ he makes intent a material issue, imposing on the prosecution a substantial burden to prove his intent. The prosecution may meet this burden with qualifying Rule 404 (b) evidence.” But what the Eleventh Circuit court actually said in Delgado was:

A defendant who enters a not guilty plea makes intent a material issue, imposing a substantial burden on the government to prove intent; the government may meet this burden with qualifying 404(b) evidence absent affirmative steps by the defendant to remove intent as an issue.

In Delgado and the case upon which it relies for this proposition, the indicted activity involved specific intent crimes, not, as discussed above, the general type of intent required to commit the strict liability traffic offense in this case.

(b) Knowledge. Admission of the similar transaction evidence as proof that Jones knew that drinking alcoholic beverages made him a less safe driver did not elucidate or throw light upon whether, in this instance, he committed the same crime again; no culpable mental state was required.

The state asserts that there is precedent for admitting .the prior DUI conviction to show Jones’s knowledge “on the date of the instant offense.” But the various federal circuit court cases upon which the state relies involved the admission of prior DUI convictions in prosecutions for manslaughter or second degree murder where the state was required to prove malice or callous indifference as an element of a charged offense; because the accused’s knowledge tended to prove either of those culpable mental states, the prior crime that supplied that knowledge was admissible.

In this case, the purposes for which the trial court admitted evidence of the prior conviction were not relevant to, or probative of, the commission of the crime charged. The state has not set forth any appropriate purpose for which evidence of the prior DUI conviction was admitted, and we find none. Evidence of a prior crime is “highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue.” Therefore, we reverse Jones’s conviction for DUI per se, and vacate the guilty verdict on the DUI less safe count; because the similar transaction evidence would have had no impact on the speeding offense, we affirm Jones’s conviction for speeding. “Because the evidence meets the standard of Jackson v. Virginia, [] the case may be retried” on the DUI counts.

Decided March 28, 2014

Jeffrey R. Filipovits, Rebecca T. Kozycki, for appellant.

Jessica K. Moss, Solicitor-General, Barry W. Hixson, Assistant Solicitor-General, for appellee.

2. Because of our holding in Division l, we need not address Jones’s alternative argument that evidence of the prior DUI conviction should have been excluded because its unfair prejudicial effect substantially outweighed its probative value.

Judgment affirmed in part, reversed in part, and vacated in part.

Ellington, P. J., and Branch, J., concur.

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-391 (a) (1).

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

        Matthews v. State, 294 Ga. 50, 53 (3) (a), n. 2 (751 SE2d 78) (2013); OCGA § 24-4-404 (b); Ga. L. 2011, pp. 99, 214, § 101.

       Ga. L. 2011, p. 99, § 1.

       See Title 24 of the Official Code of Georgia Annotated; Federal Rules of Evidence.

        Barnum v. Coastal Health Svcs., 288 Ga. App. 209, 215 (2) (b) (653 SE2d 816) (2007) (citation omitted).

       See Johnson v. State, 294 Ga. 86, 91 (5), n. 3 (750 SE2d 347) (2013).

       See United States v. Edouard, 485 F3d 1324, 1344 (II) (C) (11th Cir. 2007); United States v. Delgado, 56 F3d 1357, 1365 (III) (B) (11th Cir. 1995). Pursuant to OCGA § 24-4-403 (which mirrors Federal Rule of Evidence 403), “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

       See Reeves v. State, 294 Ga. 673, 675 (2), n. 3 (755 SE2d 695) (2014); see generally Williams v. State, 261 Ga. 640, 642 (2) (b), n. 2 (409 SE2d 649) (1991).

        McGee v. State, 267 Ga. 560, 564 (2) (480 SE2d 577) (1997) (citation and punctuation omitted).

        Steele v. State, 306 Ga. App. 870, 872 (1) (703 SE2d 5) (2010) (footnote omitted).

        Massey v. State, 309 Ga. App. 501, 503 (711 SE2d 65) (2011) (citation and punctuation omitted); see Tam v. State, 232 Ga. App. 15-16 (1) (501 SE2d 51) (1998).

       See OCGA § 24-4-404 (b); Matthews, supra.

       See United States v. McNair, 605 F3d 1152, 1203 (VIII), n. 69 (11th Cir. 2010); United States v. Zapata, 139 F3d 1355, 1357 (11th Cir. 1998); Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012) (“The decision to admit similar transaction evidence which satisfies the three-prong [Williams] test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.”) (citations omitted).

       See State v. Ogilvie, 292 Ga. 6, 8 (2) (a) (734 SE2d 50) (2012).

       Id. at 8-9 (2) (a) (citations and punctuation omitted).

       Id. at 8 (2) (a) (citations and punctuation omitted).

        Prine v. State, 237 Ga. App. 679, 680 (2) (a) (515 SE2d 425) (1999) (citation omitted).

       Id.

       Id. at 680 (2) (a) (citation and punctuation omitted); see Myers v. State, 302 Ga.App. 753, 755-756 (2) (691 SE2d 650) (2010) (“driving under the influence ... [is a] crime[ ] malum prohibitum, the criminal intent element of which is simply the intent to do the act which results in the violation of the law, not the intent to commit the crime itself”).

        Hoffer v. State, 192 Ga. App. 378, 382-383 (3) (b) (384 SE2d 902) (1989) (citation and punctuation omitted).

        Zapata, supra, 139 F3d at 1358 (citation omitted).

        United States v. Beechum, 582 F2d 898, 911 (III) (C) (5th Cir. 1978) (footnote omitted). See Delgado, supra (stating that the Eleventh Circuit court “look[s] to Beechum, the seminal case in any Eleventh Circuit 404 (b) analysis, and its progeny to discern whether the district judge abused his discretion in admitting . .. other crimes evidence”).

       See Prine, supra (“the ‘intent’ required is proved through proof of the commission of the act itself”); see generally Collins v. State, 177 Ga. App. 758, 759 (2) (341 SE2d 288) (1986).

       See generally Ogilvie, supra at 8-9 (2) (a); Myers, supra; Hoffer, supra at 380 (1).

       See generally McMullen v. State, 316 Ga. App. 684, 690-693 (2) (730 SE2d 151) (2012); King v. State, 230 Ga. App. 301-304 (1) (496 SE2d 312) (1998).

       Supra.

       Supra (citation omitted; emphasis supplied).

        Delgado, supra, 56 F3d at 1361 (“indicted activity involved a conspiracy and a substantive count for both importation and possession with intent to distribute” cocaine); United States v. Cardenas, 895 F2d 1338, 1340 (I) (11th Cir. 1990) (defendant indicted for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine). See
        United States v. Matthews, 431 F3d 1296, 1311 (V) (11th Cir. 2005) (recognizing framework for the admissibility of 404 (b) evidence used in the context of conspiracy charge in United States v. Roberts, 619 F2d 379 (5th Cir. 1980)); Roberts, supra, 619 F2d at 382 (II) (“The offense of conspiracy requires an element of intent or knowledge which is often difficult to prove.”) (citation and punctuation omitted).

        Ogilvie, supra; Hoffer, supra at 379-380 (1) (to convict defendant of traffic offense of running a red light, “[t]he state was not required to prove that [the defendant] intentionally drove through a red light, or even that [the defendant] knew that the light was red”); Queen v. State, 189 Ga. App. 161, 163 (1) (c) (375 SE2d 287) (1988) (explaining that “certain ‘strict criminal liability’ motor vehicle safety statutes... can be violated... without a showing of mens rea or guilty knowledge on the part of the violator”).

        United States v. New, 491 F3d 369 (8th Cir. 2007); United States v. Tan, 254 F3d 1204 (10th Cir. 2001); United States v. Chippewa, Case No. 97-30160 (9th Cir. 1998); United States v. Loera, 923 F2d 725 (9th Cir. 1991); United States v. Fleming, 739 F2d 945 (4th Cir. 1984).

        New, supra, 491 F3d at 372 (I), 374-375 (II) (B) (in prosecution for involuntary manslaughter resulting from alcohol-related vehicular homicides, district court properly admitted prior drunk driving convictions to prove an element of the charged offense which was “satisfied by proof that the defendant knew or could reasonably foresee, that his conduct was a threat to the lives of others”); Tan, supra, 254 F3d at 1206 (I), 1209 (II) (1), 1211 (II) (1) (in prosecution for second degree murder resulting from an alcohol related vehicular homicide, district court erred by excluding prior drunk driving convictions to prove malice component of the murder charge); Chippewa, supra (in prosecution for second degree murder resulting from an alcohol related vehicular homicide, district court properly admitted evidence of prior drunk driving to prove malice component of murder charge); Loera, supra, 923 F2d at 726-727 (I), 729 (III) (in prosecution for second degree murder resulting from an alcohol related vehicular homicide, district court properly admitted prior drunk driving convictions to establish the element of malice required to prove murder charge); Fleming, supra, 739 F2d at 947 (I), 949 (III) (in prosecution for second degree murder resulting from an alcohol related vehicular homicide, district court properly admitted prior drunk driving record because it was relevant to prove malice component of murder charge).

        McNair, supra (“This Court will not hold that the district court abused its discretion where it reached the correct result even if it did so for the wrong reason”) (citation and punctuation omitted).

        Williams, supra at 641 (2) (a).

       See generally McMullen, supra; Muir v. State, 248 Ga. App. 49, 52 (1) (b) (545 SE2d 176) (2001); King, supra.

       Supra.

        Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992); see Green v. State, 323 Ga. App. 832, 833 (1) (a), 836 (2) (748 SE2d 479) (2013); Collins, supra.

       Supra.


text:
    A13A2049.
    WILLIAMS v. THE STATE.
    (757 SE2d 267)
   Phipps, Chief Judge.

Charley Williams was convicted of possession of a firearm by a convicted felon. On appeal, he challenges the sufficiency of the evidence and the court’s failure to instruct the jury on his affirmative defense of justification. He also contends that he was denied his right to effective assistance of trial counsel and his right to a speedy trial. For the reasons that follow, we affirm.

1. Williams contends that the evidence was insufficient because it was possible that witnesses misidentified him as the person who had fled from police in the area in which the firearm was recovered and, even if he had possessed the firearm, he was justified in so doing because a law enforcement officer had requested his assistance in recovering it.

When determining the sufficiency of evidence the Court must

view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve.

Construed to support the verdict, the evidence showed the following. Barbara Brewton, a law enforcement officer who was the aunt of Williams’s brother (Richard Williams), discovered on about May 11, 2010 that her service weapon, a dock .45 handgun, had been stolen from her home. She reported the theft to her employer.

Law enforcement officers testified that on May 12, 2010, Williams and his brother were walking along a road when the officers, a sergeant and a major, traveling in a patrol vehicle, approached the men. The sergeant had known the brothers “for quite a while” and knew them “very well,” by face and by name; he positively identified the two men he saw walking as Williams and his brother.

Based on information he had received implicating the brothers in the handgun’s disappearance, the sergeant directed the men to stop and raise their hands. Williams fled on foot down a path, and was not then apprehended; Williams’s brother did not run, and was apprehended immediately. When a GBI agent arrived on the scene, the major accompanied him to the path along which Williams had run. The agent found the handgun that had been reported stolen “[o]n the other side of the fence” that bordered the path. Officers found ammunition for a Glock .45 handgun in Williams’s brother’s pocket. Williams’s brother told officers and, later, Brewton that Williams was the person who had run from police.

At trial, Williams’s brother testified that he had lied earlier when he implicated Williams; and said that when he told officers that the person who had run was “my brother,” he meant another person (Reggie Grimes), whom “[e]verybody calls . . . their brother.”

The state introduced at trial Williams’s signed statement to police, in which he admitted that he had possessed the handgun, having taken it from his brother. He wrote that he had possessed it for no longer than five minutes, that he had done so for the purpose of returning it to Brewton, and that he had hidden it in a wooded area.

Testifying on his own behalf at trial, Williams stated that he had been walking with his brother and Grimes when he saw Grimes give the handgun to his brother; Williams took the handgun from his brother in order to return it to Brewton; Williams’s uncle told him to hide the handgun and that the police would be called; he placed the handgun behind his grandmother’s house; Williams’s brother and Grimes removed the handgun from that location; and Williams was not with the two men when they encountered the officers.

Williams argues that the evidence identifying him as the person who ran from the officers was in conflict. But “[ijdentity is a question for the trier of fact, and the credibility of the [witnesses] was for the jury to determine.”

Williams also points to evidence that Brewton had asked him to try to recover the handgun for her, and claims that such evidence showed he was justified in possessing the handgun. However, the jury would have been authorized to find from the evidence that Williams had run and discarded the handgun upon the officers’ approach, and that he was not assisting a law enforcement officer who was being hindered in the performance of her official duties or whose life was being endangered by any other person’s conduct while performing her official duties, as required for the asserted justification defense. There was also evidence that Williams was a convicted felon. A rational trier of fact was authorized to find the essential elements of the crime charged beyond a reasonable doubt.

2. Williams contends that the trial court erred by refusing to charge the jury on justification, inasmuch as he had been rendering assistance to a law enforcement officer by attempting to recover her stolen handgun. He points to testimony that Brewton had asked him to help her recover the handgun, and cites OCGA § 16-3-22. That statute provides:

Any person who renders assistance reasonably and in good faith to any law enforcement officer who is being hindered in the performance of his official duties or whose life is being endangered by the conduct of any other person or persons while performing his official duties shall be immune to the same extent as the law enforcement officer from any criminal liability that might otherwise be incurred or imposed as a result of rendering assistance to the law enforcement officer.

“A defense based upon any of the provisions of this article is an affirmative defense.”

Williams asserts that the court erred in not charging the jury on OCGA § 16-3-22 or more generally on justification, when justification was his sole defense and there was evidence supporting the charge. Williams submitted a written request to charge the principle of justification, and orally requested a charge on OCGA § 16-3-22. The court denied both requests.

“[T]o authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” “A criminal defendant is ordinarily required to present written requests for any desired jury instructions.”

(a) The written request for a (general) charge on justification. The court was not required to give Williams’s written request to charge on the general principle of justification. Williams maintains that the charge request was warranted pursuant to OCGA § 16-3-22. However, as discussed in Division 2 (b), there was no evidence to support a charge pursuant to that statute.

(b) The oral request for a charge on OCGA § 16-3-22. “Generally, where no written request for a jury charge has been filed, the failure to give that charge is not error. The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” Whether the affirmative defense of justification was authorized by the evidence is a question of law.

The court was not required to instruct the jury regarding OCGA § 16-3-22 because (i) justification pursuant to that statute was not Williams’s sole defense (he also claimed mistaken identity); and, (ii) the instruction was not authorized by the evidence, as there was no evidence that when Williams possessed the handgun Brewton was being hindered in the performance of her official duties or that her life was being endangered by the conduct of any other person while performing her official duties. The court properly refused to give the jury charge.

3. Williams contends that his trial counsel rendered ineffective assistance because he (a) failed to move for a directed verdict of acquittal; (b) failed to request a continuance so he (counsel) could review Williams’s brother’s recorded police statements; and (c) failed to request a jury charge on justification at the appropriate time.

Under Strickland v. Washington, [] to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. When reviewing the trial court’s decision, this Court will accept the trial court’s factual findings and credibility determinations unless clearly erroneous; however, we review the court’s application of legal principles de novo.

Decided March 28, 2014.

(a) Counsel did not perform deficiently by failing to move for a directed verdict of acquittal because, given that the evidence was sufficient to sustain Williams’s conviction, “any motion for directed verdict would have failed.”

(b) In his appellate brief, Williams has not shown (or even alleged) how trial counsel’s performance was deficient or a reasonable probability that the outcome of the trial would have been different, had counsel requested a continuance to review the recorded statements of Williams’s brother. Thus, he has not met his burden of proving either prong of the Strickland test as to this claim of error.

(c) Trial counsel was not ineffective for failing to request the justification charge(s) earlier. Given the evidence at trial, there is no reasonable probability that, had counsel requested the charge(s) earlier, the outcome of the trial would have been different.

4. Williams contends that he was denied his constitutional right to a speedy trial. But he did not present this argument in the trial court, and the trial court made no ruling related to this issue. When constitutional issues are not timely raised, “those challenges must be deemed waived on appeal.” Further,

[i]ssues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

J. D. Blevins, for appellant.

Tom Durden, District Attorney, Joe G. Skeens, Assistant District Attorney, for appellee.

       OCGA § 16-11-131 (b).

        White v. State, 250 Ga. App. 783 (552 SE2d 927) (2001) (citation omitted).

       Williams signed a ‘Waiver of [Miranda] Rights” form.

        Mobley v. State, 279 Ga. App. 476, 477 (1) (631 SE2d 491) (2006) (citation and punctuation omitted).

       See OCGA § 16-3-22 (regarding immunity from criminal liability for persons rendering aid to a law enforcement officer under certain circumstances), discussed infra.

       See Division 2, infra; OCGA § 16-3-22.

       See Parramore v. State, 277 Ga. App. 372, 374 (626 SE2d 567) (2006).

       OCGA § 16-3-22 (a).

       OCGA § 16-3-28. “[T]his article” refers to “Article 2. Justification and Excuse,” of “Chapter 3. Defenses to Criminal Prosecutions,” of OCGA “Title 16. Crimes and Offenses.” See also OCGA § 16-3-20, providing that “[t]he fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct.”

        Hodges v. State, 319 Ga. App. 657, 660 (3) (738 SE2d 111) (2013) (citation and punctuation omitted).

        Woods v. State, 291 Ga. 804, 809 (3) (733 SE2d 730) (2012) (citation and punctuation omitted).

       Infra.

       See generally Burrowes v. State, 296 Ga. App. 629, 632 (3) (675 SE2d 518) (2009).

        Isenhower v. State, 324 Ga. App. 380, 384 (750 SE2d 703) (2013) (citation and punctuation omitted).

       Id.

       See OCGA § 16-3-22.

       See generally Burrowes, supra.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Russell v. State, 319 Ga. App. 472, 476 (3) (735 SE2d 797) (2012) (citations and punctuation omitted).

       See Jessie v. State, 294 Ga. 375, 377 (2) (a) (754 SE2d 46) (2014).

       See generally Blanchard v. State, 324 Ga. App. 280, 281-283 (750 SE2d 183) (2013).

       See Hosley v. State, 322 Ga. App. 425, 428 (1) (746 SE2d 133) (2013).

        Perez-Castillo v. State, 275 Ga. 124, 125 (562 SE2d 184) (2002); see Brinkley v. State, 291 Ga. 195, 198-199 (2) (728 SE2d 598) (2012).

        Jackson v. State, 252 Ga. App. 16-17 (2) (555 SE2d 240) (2001) (citation and footnote omitted); see Franklin v. State, 305 Ga. App. 354, 363 (2) (699 SE2d 575) (2010).


text:
    A13A2157.
    WESTERN SURETY COMPANY et al. v. DEPARTMENT OF TRANSPORTATION.
    (757 SE2d 272)
   Phipps, Chief Judge.

In this construction contract dispute, Western Surety Company and Continental Casualty Company (the “Sureties”) appeal from the trial court’s grant of partial summary judgment to defendant State of Georgia Department of Transportation (the “DOT”) on the Sureties’ claims for breach of contract and violation of the Georgia Prompt Pay Act (the “PPA”). The Sureties contend that the trial court erred in entering partial summary judgment because there remain genuine issues of material fact. For the reasons set forth below, we disagree and affirm.

Summary judgment is warranted when the moving party shows that there is “no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” A defendant may meet this burden by demonstrating that “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” And when the moving party discharges this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.” We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

So viewed, the record shows that the DOT and Bruce Albea Contracting, Inc. (“BAC”) entered into a construction contract (the “Contract”) for work on roadway US 27 (the “Project”). The Sureties issued performance and payment bonds to the DOT, as obligee. The completion date for the Project was originally March 31, 2007, but was extended to January 18, 2008.

After BAC entered into the Contract, it experienced an increase in material costs for the Project. As a consequence of the increase in material prices, particularly for asphalt and other petroleum-related products, BAC suffered financial difficulties. In December 2006, BAC notified the Sureties of the problem.

Rather than allow the Project to “grind to a halt,” the Sureties provided funds to BAC between April and July 2007. In exchange for their help with the Project, BAC provided the Sureties with a letter from BAC to the DOT, dated April 18, 2007, stating that BAC could not perform the work and was voluntarily abandoning the Contract. The letter was received by the DOT in late June 2007, and the DOT placed BAC in default and directed the Sureties to take over the work on the Project.

On September 11,2007, the Sureties sent two claim letters to the DOT. After a meeting, the DOT asked for additional information. The Sureties chose not to respond to the DOT’s request and subsequently sued the DOT, setting forth three counts of breach of contract and one count of violation of the PPA. The DOT moved for partial summary judgment on the Sureties’ claims for: (i) compensation for price inflation incurred after March 31, 2007 (the “Original Completion Date”) (“Count II”); (ii) compensation for price inflation incurred before the Original Completion Date (“Count III”); and (iii) violation of the PPA. The trial court granted the DOT’s motion for partial summary judgment. On appeal, the Sureties contend that the trial court erred in granting summary judgment on Count II and Count III because they did not waive their claims against the DOT by failing to strictly comply with the Contract’s notice and claim provisions. The Sureties also contend that the trial court erred by finding that they are barred from recovering attorney fees under the PPA.

1. The Sureties acknowledge that neither BAC nor the Sureties strictly followed the claim notice requirements set forth under the Contract, particularly Specification 105.13. Specification 105.13.B.9 provides:

NOTICE OF POTENTIAL CLAIM: In any case in which the Contractor believes that it will be entitled to additional compensation, the Contractor shall notify the Engineer in writing of its intent to claim such additional compensation. Such notice shall be given in order that the Department can assess the situation, make an initial determination as to who is responsible, and institute appropriate changes or procedures to resolve the matter.
a. Claims for Delay — The Department shall have no liability for any delay which occurred more than one week prior to the filing of such written notice. Failure of the Contractor to give such written notice in a timely fashion will be grounds for denial of the claim.
b. All Other Claims Except Acceleration and Delay — If the Contractor does not file such written notice before beginning the work out of which such claim arises, then the Contractor hereby agrees that it shall have waived any additional compensation for that work and the Contractor shall have no claim thereto.

In submitting a claim, the Contractor is also required to provide certain information, as set forth in Specification 105.13.C, and to certify the claim, as required by Specification 105.13.D.

Further, under Specification 105.13.B.6.b, recoverable damages under the Contract include “[documented additional costs for materials.” The parties also agreed under Specification 105.13.B.5, however, that “[cjompliance with the provisions of this Subsection will be an essential condition precedent to any recovery of damages by the Contractor.”

Parties to construction contracts are free to enter into claim notice requirements, and such provisions are “legal and binding on the parties in the absence of special circumstances,” which may include waiver or estoppel. Thus, we start with the premise that the Contract is enforceable and that the Sureties cannot recover on their claims for damages under Count II and Count III, absent special considerations. The Sureties argue that those considerations are present here, and that a jury could conclude that (i) the DOT waived strict compliance with Specification 105.13, (ii) BAC and the Sureties reasonably and substantially complied with the notice and claim procedures, (iii) the DOT had actual notice of BAC’s and the Sureties’ claims, and (iv) the DOT was not prejudiced by the lack of strict compliance. It follows, they contend, that it was error for the trial court to grant partial summary judgment to the DOT on Count II and Count III. We disagree.

(a) The Sureties contend that the DOT waived strict compliance with the notice and claim procedures under the Contract by actively encouraging disputes to be handled informally and by punishing those who followed the strict claims procedures, by granting extensions of the contract time, and by negotiating with the Sureties. In that respect, we have “recognized that a party to a contract may waive contractual provisions for his benefit.” And in the context of claim notice requirements, “[c]ourts will readily seize upon any fact or circumstance growing out of the conduct of the parties, tending to show a waiver of strict compliance, and will seek to avoid the forfeiture and to leave the actual merits of the case open to investigation.” However, “mere silence when there is no duty to speak, cannot constitute a waiver or estoppel.”

To show that the DOT had encouraged disputes to be pursued outside the parameters of the Contract, the Sureties point to evidence that before 2006 or 2007 the DOT had a general practice of discouraging contractors from filing notice of claims but then retrospectively considering requests for additional compensation. We are unpersuaded that what the DOT did at other times, with other parties, under different contracts, is relevant here. Although the Sureties suggested to the trial court that the course of dealing was so universal as to become part of the Contract by implication, the applicable agreement is set forth in the express provisions of the Contract.

The Sureties also point to evidence that BAC’s principal, based on his experience with the DOT on other projects, was reluctant to file any claim against the DOT. BAC’s principal deposed that on another project, upon “issue[ ] [of] the word claim, [the DOT] immediately used my liquidated damages as leverage.” The DOT’s engineer on the Project also testified that as to another project he worked on with BAC’s principal, it was “not an out-of-question conversation” that he told BAC “we’re not going to give you time if you are asking for both time and money.” According to BAC’s principal, in this case BAC and its supplier wanted to “work out an escalation agreement” with the DOT, but wanted to “get the time extension first.”

While there is evidence that BAC was “afraid to ruffle the feathers” of the DOT by filing a claim, and that the DOT might react negatively if such a claim was made, the evidence tends to explain why the procedures for filing a claim under the Contract were intentionally not followed by BAC, not that the DOT waived any of the Contract provisions regarding the filing of claims. Rather, “[t]here is no evidence that DOT . . . did any affirmative act which would lead [BAC] to believe that it was not necessary for it to give timely notice of a claim.”

The Sureties also point to the DOT’s alleged practice of “waiting until the end of projects to consider time extensions,” showing that in this instance the DOT considered and granted BAC’s requests for time extensions in 2007, notwithstanding that the delays occurred in 2004, 2005, and 2006. Therefore, the Sureties argue, because the requests for extensions were sent more than one week after the delays and were not in strict compliance with the notice requirements, there was evidence of waiver. The DOT shows, however, that extensions of contract time were not granted under the provisions at issue here. Thus, we cannot agree with the Sureties that they have pointed to evidence that the DOT thereby waived strict compliance with the claim notice requirements.

Last, the Sureties contend that the DOT waived strict compliance with the claim notice provisions by participating in settlement negotiations. However, the Sureties do not show that during any communications or discussions between the Sureties and the DOT, the DOT agreed or intimated that it would waive any of the Contract requirements. Even after the submission of the two September 11, 2007 claim letters, the DOT continued to request information and acts on the part of the Sureties which were consistent with an insistence of strict compliance with the terms of the Contract.

(b) The Sureties further contend that a jury could conclude that BAC and the Sureties reasonably complied with the notice and claim provision of the Contract. We disagree.

As a rule, “[a]ny notice requirement must be reasonably construed.” And substantial compliance with a notice provision may present an issue for the jury if “[t]he evidence... appears to be ‘in the spirit’ of the contract provision.”

Here, the two September 11, 2007 letters asserted claims by the Sureties against the DOT for compensation for price escalations and damages under the Contract. Nevertheless, the letters were on their face untimely as to the majority of the claims set forth therein. As we noted supra, the parties had agreed under Specification 105.13.B.9 that “[t]he [DOT] shall have no liability for any delay which occurred more than one week prior to the filing of” the written notice of potential claim and that, as to other claims, “[i]f the Contractor does not file such written notice before beginning the work out of which such claim arises, then the Contractor hereby agrees that it shall have waived any additional compensation for that work.”

After the DOT received the two claim letters, it asked the Sureties, consistent with Specification 105.13.C for, among other things, “[a] copy of the ‘Notice of Potential Claim’ filed for each delay event or issue associated with claim.” The Sureties did not respond to this request, and the Sureties’ representative maintained in his deposition that they did not do so because the DOT “had their own project files” and because the DOT had adequate notice of the claims. On appeal, the Sureties point to informal discussions between BAC and the DOT and letters sent from BAC and the Sureties to the DOT and contend that they are sufficient to create an issue of material fact as to “whether BAC and the Sureties’ efforts were ‘in the spirit’ of” the Contract’s requirements. For example, the Sureties show that they sent the DOT a letter in July 2007 concerning price escalations, stating, “All rights and/or claims for increased compensation due to time extension(s) and/or escalation of oil and/or asphalt prices increases to [BAC] and/or [the Sureties] are reserved.” But the Contract does not reasonably contemplate that a contractor may unilaterally “reserve” a claim. Further, while these communications might show that the Project had been delayed and was subject to material price escalations, and that BAC sought an agreement with the DOT to provide relief, they did not alert the DOT that there were any grounds for a claim. For example, with respect to damages arising out of delay, Specification 108.07.E provides, in pertinent part, “[i]f the Engineer finds that The Work was delayed because of conditions beyond the control and without the fault of the Contractor, he may extend the time for completion in such amount as the conditions justify.” Thus, while a delay might be excusable, the Sureties do not show that the DOT was informed that the Sureties or BAC contemplated that the DOT was obligated to pay compensation for the delay, including damages for increased material costs. Rather, under Specification 105.13.B.2, the DOT “will be liable only for those delay damages caused by or arising from acts or omissions on the part of [the DOT] which violate legal or contractual duties owed to the Contractor by [the DOT]. The Contractor assumes the risk of damages from all other causes of delay.” Thus, we conclude that none of the communications by BAC or the Sureties to the DOT before the September 11, 2007 claim letters reasonably or substantially complied with the requirement that timely notice of a claim be given to the DOT.

The September 11, 2007 claim letters were perhaps sufficient to provide reasonable notice of a claim to the extent the notice was not untimely. However, in addition to notice, the parties agreed as to the required contents of a claim, including the information to be provided thereby. When the DOT requested that information in writing following the submission of the claim letters, the Sureties chose not to respond. According to the Sureties’ representative, the DOT’s letter was “a request for free discovery in litigation,” and “an excuse for . . . nonpayment.” The DOT also shows that the Sureties intentionally declined to comply with Specification 105.13.D regarding certification of the claim. The Sureties suggest that because the DOT had previously analyzed and granted requests for extensions in the Project completion date that the information contemplated by Specification 105.13.C was not needed by the DOT. But the parties had not contemplated that the DOT would independently gather all the documentation needed to assess a claim, or that a contractor could assume that the information it was required to produce in connection with a claim was already present in the DOT’s files. Given the foregoing, we cannot agree with the Sureties that a trier of fact could conclude that their efforts were “in the spirit” of the Contract.

(c) The Sureties further contend that a jury must decide whether the DOT had actual notice of BAC’s and the Sureties’ claims. They rely on APAC-Ga. v. Dept. of Transp., where we found that “[t]he key issue is whether DOT had actual notice of the delays for which APAC seeks damages.” Here, the Sureties point out, the DOT had notice of delays and even granted extensions for the delays. We find APAC-Ga. to be distinguishable.

At issue in APAC- Ga. was whether the trial court erred in finding that the contractor failed as a matter of law to comply with a provision regarding the extension of contract time. And the evidence in that case showed that the contractor sent over 50 letters to the DOT giving notice of delays and the need for extensions, and that the DOT also granted extensions without request and failed to charge contractual liquidated damages for failure to complete the project on time.

In this case, however, the DOT’s knowledge “that there were problems with [delays] is not tantamount to knowledge that [BAC or the Sureties were] incurring monetary damages or that [they] intended to file a claim.” If compliance with the Contract could be deemed waived or excused because the DOT was aware of a delay or of price escalations, which, as to the latter, would often be public knowledge, then “the provision requiring timely written [notice of a potential claim] would be meaningless and superfluous.” Similarly, to the extent that the DOT had actual knowledge of claims in light of the September 11,2007 claims letters, that did not leave the Sureties free to ignore the remainder of Specification 105.13.

(d) Last, the Sureties argue that a jury should consider whether the DOT was prejudiced by BAC’s and the Sureties’ failure to strictly comply with the Contract’s claim notice provisions. They acknowledge that “[n]o Georgia appellate court has made a determination whether prejudice is a necessary element to prevent waiver of strict compliance.” Rather, they rely on decisions of the General Services Administration Board of Contract Appeals. As the parties did not incorporate federal law under federal contract notice provisions into the Contract, we find that the authority relied on by the Sureties is not relevant or controlling.

In light of the foregoing, we conclude that there remains no issue of material fact as to whether BAC’s and the Sureties’ failure to comply with the claim notice provisions of the Contract was waived by the DOT, whether BAC or the Sureties reasonably or substantially complied with those provisions, or whether their compliance was excused by the DOT’s actual knowledge of a claim. It follows that the trial court did not err in granting partial summary judgment to the DOT on Count II and Count III.

Decided March 28, 2014.

2. In Count IV of their complaint, the Sureties requested attorney fees and interest arising out of the DOT’s alleged violation of the PPA. Specifically, the Sureties alleged that the DOT violated the PPA “by failing to pay the Sureties within 15 days of receipt of Voucher #58.” The Sureties claim that the trial court erred in granting partial summary judgment to the DOT on this count. We disagree.

It is undisputed that the DOT’s payment for Voucher 58 has been acceptedby the Sureties. AndOCGA § 13-11-7 provides that “[acceptance of progress payments or final payment shall release all claims for interest on said payments.” Accordingly, the Sureties do not show that they have a claim for interest under the PPA with respect to the failure to timely pay Voucher 58.

The Sureties argue that inasmuch as Voucher 58 was paid after the action to enforce a claim was instituted, the “Sureties are entitled to [attorney] fees incurred until the voucher was paid.” This assertion contradicts the complaint, which states that the DOT’s payment for Voucher 58 was received on January 15, 2008, before the complaint was filed on March 18, 2008. The affidavit which the Sureties reference as evidence of payment after the filing of the action simply states that the DOT “paid and the Sureties accepted Voucher 58.” As the record is inconsistent with the Sureties’ theory of recovery as to attorney fees, and the PPA contemplates attorney fees in actions to “enforce” a claim, we find no error in the trial court’s grant of summary judgment on this count.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

Thompson, Slagle & Hannan, Dewitte Thompson, Jr., Jefferson B. Slagle, for appellants.

Hall Booth Smith, Denise W. Spitalnick, for appellee.

       OCGA § 13-11-1 et seq.

        Bd. of Commrs. of Putnam County v. Barefoot, 313 Ga. App. 406, 408 (721 SE2d 612) (2011) (punctuation omitted).

       Id. (punctuation omitted).

       Id. (punctuation omitted).

        Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

       Although it does not appear that the Sureties were parties to the Contract, we have found that in a breach of contract action “a subrogee stepping into the shoes of [a government contractor], may rely upon the waiver of sovereign immunity that applied to the government contractor.” State of Ga. Dept. of Corrections v. Developers Surety & Indem. Co., 324 Ga. App. 371, 376 (1) (750 SE2d 697) (2013).

       The DOT’s motion for summary judgment did not encompass Count I of the Sureties’ complaint, which set forth a claim for the alleged outstanding balance for work performed.

       Although we do not reach these issues, the Sureties also contend that the trial court erred to the extent it determined that supplementary agreements to the Contract acted as accords and satisfactions, to the extent it found utility-related delays were not compensable, and to the extent it found that the breach of contract claims were disguised equity claims. They acknowledge, however, that “the argument relative to notice would theoretically apply to all of the Sureties’ claims.”

       The damages which the Sureties claim appear to be primarily associated with delay. However, the Sureties’ representative acknowledged that it was not clear whether claims for material price increases before the Original Completion Date were a “delay” or “other” claim for purposes of the Contract, although it “seemed more like an ... [*]other[’] claim.” Neither party suggests that the issues on appeal turn on this distinction.

       See, e.g., State Hwy. Dept. v. Hewitt Contractor Co., 113 Ga. App. 685, 692 (149 SE2d 499) (1966) (finding enforceable contract provision requiring contractor to give notice of its intention to claim extra compensation before beginning the work on which the claim was based, and that if such notice was not given, the contractor agreed to waive the claim for extra compensation).

        AAF-McQuay, Inc. v. Willis, 308 Ga. App. 203, 217 (4) (a) (707 SE2d 508) (2011) (citation and punctuation omitted).

        APAC-Ga. v. Dept. of Transp., 221 Ga. App. 604, 607 (2) (472 SE2d 97) (1996) (citation and punctuation omitted). Accord State Hwy. Dept. v. Hall Paving Co., 127 Ga. App. 625, 629 (3) (194 SE2d 493) (1972).

        Hewitt Contractor Co., 113 Ga. App. at 693 (2) (a) (finding that “[t]he duty was on the plaintiff contractor under the contract to give the initial notice of a claim for compensation before embarking on what it considered extra work and was not on the defendant Highway Department to inform the contractor that it was about to do extra work for which it must give notice and execute a supplemental agreement”).

       The Sureties rely on an affidavit of an expert who had “experience in dealing with contractors performing” for the DOT and who averred that “[f ] or many years” contractors were strongly discouraged by the DOT from filing a notice of claim. Rather, after the completion of a contract, the DOT “considered discussing requests for additional compensation in a retrospective manner.” The expert noted, however, that the DOT had begun insisting on strict adherence with its notice requirements “[i]n 2006 and 2007” and contractors had not yet adjusted to “the more stringent [cjontract adherence, yet the new willingness of [the DOT] to review a claim.”

       See generally Ramsey v. Langley, 86 Ga. App. 544, 549 (4) (71 SE2d 863) (1952) (“There cannot bean express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise.”).

        Compare State Hwy. Dept. v. Wright Contracting Co., 107 Ga. App. 758, 764(1) (131 SE2d 808) (1963) (custom and practice of Highway Department to allow supplemental agreements upon completion of extra work, and its direction to contractor to complete work without first securing an agreement, contrary to what was required in the contract, led contractor to assume that provision had been waived).

        Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 824 (2) (426 SE2d 905) (1992) (citation and punctuation omitted) (finding that in absence of a request of extension, DOT was entitled to presume that delay in grading work was not considered by the contractor to be a ground for extension of the contract).

       Specification 105.13.B.9.a, which appears to be the provision relied on by the Sureties, provides in applicable part that “[t]he Department shall have no liability for any delay which occurred more than one week prior to the filing of such written notice.” And “such written notice” refers to the required notice of a potential claim.

        Rice v. Lost Mountain Homeowners Assn., 269 Ga. App. 351, 355 (4) (604 SE2d 215) (2004).

        APAC-Ga., 221 Ga. App. at 606 (2). See OCGA § 13-4-20 (providing that “[p]erformance, to be effectual, . . . must be substantially in compliance with the spirit and the letter of the contract. . .”).

       The DOT also responded to the reservation letter by pointing out that “any claims for additional compensation or other claims for adjustments need to be brought in accordance with the terms of the Contract,” and directing the Sureties to the Contract specifications related thereto.

       The requirements of Specification 105.13.C are extensive, and include 12 categories of information and documentation.

       Specification 105.13.C provides, however, that the information submitted thereunder may be used in resolving “any litigation which might arise from the claim.”

       The Contractor had agreed under the Contract terms, however, that as to Specification 105.13, “[w]henever the Contractor believes that it is or will be entitled to additional compensation, whether due to delay, extra work, breach of contract, or other causes, the Contractor shall follow the procedures set forth in this Sub-Section.”

        APAC-Ga., 221 Ga. App. 604.

       Id. at 606 (2).

       In Division 1 of APAC-Ga. we found that then “provision 105.13” did not apply to the contractor’s claim for delay damages. See APAC-Ga., 221 Ga. App. at 604-605 (1). In Division 2, we found that “provision 108.07” did apply to the contractor’s claim. APAC-Ga., 221 Ga. App. at 605 (2). Provision 108.07 provided in part that “[i]f the normal progress of The Work is delayed for reasons beyond his control, the Contractor shall, with [sic] fifteen days after the start of such a delay, file a written request to the Engineer for an extension of time ....” Id. at 605-606 (2). Neither provision at issue in APAC-Ga. is the same as Specification 105.13, which is at issue here.

       See APAC-Ga., 221 Ga. App. at 606 (2).

        Allgood Elec. Co. v. Martin K. Eby Constr. Co., 959 FSupp. 1573, 1581 (III) (B) (M.D. Ga. 1997) (finding that, under Georgia law, there was insufficient evidence of affirmative acts by the contractor for its sub-contractor to have believed that it was not necessary to provide the contractor with no tice of a claim for delay damages). Compare Dept. of Transp. v. Dalton Paving & Constr., 227 Ga. App. 207, 216 (3) (489 SE2d 329) (1997) (jury could conclude that DOT waived notice requirements where, among other things, “DOT expressly acknowledged that appellee’s . . . letter served as actual notice of appellee’s intent to file a claim”).

        Fru-Con, 206 Ga. App. at 824 (2) (assessing contract provision requiring contractor give timely written request for extension of time against DOT’s knowledge that there was a delay in grading work on the project).

       See, e.g., Max Blau & Sons, Inc., 91-1 B.C.A. (CCH) P23,626 (1990 GSBCALEXIS 748) (finding that formal notification will not bar a claim for equitable adjustment if the government is not prejudiced).

       The Sureties’ other claims of error as to Count II and Count III are moot.

       Under OCGA § 13-11-3, a contractor’s performance under a contract and satisfaction of the conditions precedent to payment “entitles such person to payment from the party with whom he or she contracts.” OCGA § 13-11-4 (a) provides: “When a contractor has performed in accordance with the provisions of a contract, the owner shall pay the contractor within 15 days of receipt by the owner or the owner’s representative of any payment request based upon work completed or service provided under the contract.”

       This issue is effectively conceded by the Sureties in their appellate brief.

       OCGA § 13-11-8 provides: “In any action to enforce a claim under this chapter, the prevailing party is entitled to recover a reasonable fee for the services of its attorney including hut not limited to trial and appeal and arbitration, in an amount to be determined by the court or the arbitrators, as the case may be.”

       Id.