text:
    A17A0420.
    GREENWALD et al. v. SUGARLOAF RESIDENTIAL PROPERTY OWNERS ASSOCIATION, INC.
    (800 SE2d 621)
   Rickman, Judge.

In 2001, Sugarloaf Residential Property Owners Association, Inc. (“Sugarloaf”) filed a complaint against Denise and Gary Green-wald seeking a declaratory judgment that the Greenwalds had failed to comply with Sugarloaf residential covenants, conditions, and restrictions and an injunction to halt landscaping work at the Green-walds’ residence. Thereafter, also in 2001, the Greenwalds filed an answer and asserted counterclaims against Sugarloaf for abuse of discretion, nuisance, wilful misconduct, and attorney fees. From 2010 through 2011, Sugarloaf made three settlement offers pursuant to OCGA § 9-11-68 (a) which were each rejected by the Greenwalds. After all of the substantive claims were disposed of in Sugarloaf’s favor, Sugarloaf filed a motion for attorney fees and expenses of litigation pursuant to OCGA § 9-11-68 (b) (l). The trial court granted Sugarloaf’s motion, and the Greenwalds appealed.

In an unpublished opinion, this Court explained:

In granting Sugarloaf’s motion, the trial court’s order relied heavily upon our decision in L. P. Gas Indus. Equip. Co. v. Burch, 306 Ga. App. 156 (701 SE2d 602) (2010), to conclude that the relevant date for application of [OCGA § 9-11-68] was “the date(s) of the occurrence of the acts giving rise to the Greenwald[s’] cause of action[.]”

Greenwald v. Sugarloaf Residential Property Owners Assn., Inc., 334 Ga. App. XXVI, slip op. p. 3 (1) (Case No. A15A1136) (November 10, 2015) (unpublished). However, this Court noted that L. P. Gas was overturned by Crane Composites, Inc. v. Wayne Farms, LLC, 296 Ga. 271 (765 SE2d921) (2014) on the day before the trial court’s order was entered. Greenwald, slip op. at 4 (1). Accordingly, this Court vacated the trial court’s judgment and remanded this case back to the trial court “for reconsideration of the effect. . . that Crane Composites has upon its decision to grant the motion for attorney fees and expenses.” Id.

On remand, the trial court found that under Crane Composites it was still authorized to grant attorney fees and expenses to Sugarloaf pursuant to OCGA § 9-11-68. The Greenwalds appeal from that order, contending, inter alia, that the application of OCGA § 9-11-68 to this case is unconstitutional. For the following reasons, we reverse.

1. The Greenwalds contend that the application of OCGA § 9-11-68 to this case is unconstitutional. Specifically, they argue that under Crane Composites, because their lawsuit was commenced prior to the effective date of OCGA § 9-11-68, this statute was impermis-sibly applied retroactively.

“OCGA § 9-11-68, was enacted as part of the Tort Reform Act of 2005, Ga. L. 2005; it became effective on February 16, 2005, during the pendency of this litigation. The Code section was amended by Ga. L. 2006, p. 447, § 1/HB 239, effective April 27, 2006.” Fowler Properties v. Dowland, 282 Ga. 76, 77 (1) (646 SE2d 197) (2007). “OCGA § 9-11-68 created substantive rights and . . . therefore, it cannot be applied retroactively However, the rights created by the statute pertain to attorney fees and expenses arising out of litigation, not damages stemming from injury” Crane Composites, 296 Ga. at 273.

In other words, [OCGA § 9-11-68] operates substantively, but only insofar as it imposes an obligation to pay an opposing party’s attorney fees and expenses of litigation. Thus, it cannot be said that the statute operates retroactively upon substantive rights simply because the injury occurred before the effective date of the statute. Rather, because the rights created by the statute pertain to the conduct of litigation, the statute is acting prospectively, not retroactively, when applied to litigation commenced after the effective date.

Id.

The trial court found that the Greenwalds implicitly amended their counterclaim to add a claim for continued nuisance and expressly amended their counterclaim to add a claim for punitive damages after the effective date of OCGA § 9-11-68. The trial court reasoned that because these amendments were added after the effective date ofOCGA § 9-11-68, under Crane Composites, attorney fees and expenses pursuant to the statute were authorized. We disagree.

In Fowler Properties, the Supreme Court of Georgia held that the application of OCGA § 9-11-68 to a tort action that was filed in 2002 was unconstitutional. Fowler Properties, 282 Ga. at 78-79 (1). The Court explained:

When [the plaintiff] instituted her tort action on December 18, 2002, the possibility that she may be responsible for paying the opposing party’s attorney fees and expenses of litigation by rejecting an offer of settlement did not exist because OCGA § 9-11-68 did not take effect until more than three years later. OCGA § 9-11-68 (b) (1) does not merely prescribe the methods of enforcing rights and obligations, but rather affects the rights of parties by imposing an additional duty and obligation to pay an opposing party’s attorney fees when a final judgment does not meet a certain amount or is one of no liability. By creating this new obligation, the statute operates as a substantive law, which is unconstitutional given its retroactive effect to pending cases like this one.

Fowler Properties, 282 Ga. at 78 (1).

The Supreme Court of Georgia in Crane Composites held that OCGA § 9-11-68 was “properly applie[d] prospectively [even though the alleged injury occurred prior to the statute’s effective date] because the lawsuit was commenced after the effective date [of the statute].” Crane Composites, 296 Ga. at 274. The Court in Crane Composites distinguished Fowler Properties by reasoning that in Fowler Properties the Court held only that OCGA § 9-11-68 could not be applied retroactively because the lawsuit was filed prior to the effective date of the statute. Id. The Court noted that, “[OCGA § 9-11-68] could have been applied in Fowler if the lawsuit had been filed after the effective date.” Id.

As a matter of first impression, we consider whether OCGA § 9-11-68 applies when a lawsuit is filed prior to the effective date of the statute and is subsequently amended to add additional claims after the effective date of the statute. Sugarloaf argues that because the Greenwalds amended their counterclaims after the effective date of OCGA § 9-11-68, the trial court properly applied the statute to this case. However, Sugarloaf ⅛ argument is an overly broad interpretation of existing Supreme Court precedent. In both Crane Composites and Fowler Properties, the Supreme Court focused on the date the lawsuit was filed in determining whether OCGA § 9-11-68 was being improperly, retroactively applied. See Crane Composites, 296 Ga. at 274; see also Fowler Properties, 282 Ga. at 78 (1); see generally Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 476 (2) (b) (759 SE2d 804) (2014) (rights created by OCGA § 9-11-68 (b) pertain to tort action, not tort claim).

In this case, pretermitting whether the Greenwalds amended their counterclaim after the effective date of OCGA § 9-11-68 to add claims for continued nuisance and punitive damages, the lawsuit was commenced in 2001 when the Greenwalds filed their initial counterclaim, which included tort claims, prior to the effective date of the statute. Accordingly, because OCGA § 9-11-68 became effective while this case was pending, the retroactive application of the statute is unconstitutional. We therefore reverse the trial court’s award to Sugarloaf of attorney fees and expenses pursuant to OCGA § 9-11-68. See Olarsch v. Newell, 295 Ga. App. 210, 212-213 (1) (671 SE2d 253) (2008); see also Fowler Properties, 282 Ga. at 77-79 (1). Compare Crane Composites, 296 Ga. at 273-274.

Decided May 23, 2017.

Leon A. Van Gelderen, for appellants.

Winter Capriola Zenner, Marvin P. PastelII, Lindsey R. Harrison, for appellee.

2. Because of our holding in Division 1, we need not address the Greenwalds’ remaining arguments.

Judgment reversed.

Ellington, P. J., and Andrews, J., concur.

       The Greenwalds amended their counterclaim in 2002 to add a claim for abatement.

       Under OCGA § 9-11-68 (a),
      [a]t any time more than 30 days after the service of a summons and complaint on a party but not less than 30 days (or 20 days if it is a counteroffer) before trial, either party may serve upon the other party, but shall not file with the court, a written offer, denominated as an offer under this Code section, to settle a tort claim for the money specified in the offer and to enter into an agreement dismissing the claim or to allow judgment to be entered accordingly. . . .

       OCGA § 9-11-68 (b) (1) provides:
      If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A17A0170.
    GRADY MEMORIAL HOSPITAL CORPORATION v. HAYES.
    (801 SE2d 55)
   MILLER, Presiding Judge.

This appeal arises from a renewal suit filed by Appellee Marion Hayes against Grady Memorial Hospital Corporation (“Grady”), wherein Hayes alleges negligence and breach of contract arising from injuries allegedly sustained during a ventral hernia repair. Grady moved to dismiss both counts of Hayes’s complaint, but the trial court only dismissed Hayes’s negligence claim while allowing the breach of contract claim to proceed. This Court granted interlocutory review of the trial court’s order, and Grady appeals. For the following reasons, we find that the trial court should have dismissed Hayes’s breach of contract claim for failure to state a claim and, therefore, we reverse.

[T]his Court conducts a de novo review of a trial court’s ruling on a motion to dismiss. In doing so, our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts[.]

(Citation and punctuation omitted.) Dove v. Ty Cobb Healthcare System, 316 Ga. App. 7, 9 (729 SE2d 58) (2012).

So viewed, the record shows that on March 5, 2013, Hayes had surgery for a ventral hernia repair at Grady. A few days later, Hayes required postoperative surgery at Grady to repair a puncture of his bowel wall allegedly caused during the March 5 surgery Two years later, Hayes sued Grady to recover for the alleged injuries he sustained during the March 5, 2013 surgery (the “First Suit”). Hayes raised claims for negligence and breach of contract. Grady moved to dismiss the First Suit because Hayes failed to attach an expert affidavit to that complaint. Hayes voluntarily dismissed the First Suit without prejudice, and he filed a renewal suit against Grady, alleging substantially the same causes of action (the “Renewal Suit”). Hayes again failed to file an expert affidavit with the Renewal Suit.

In the Renewal Suit Hayes alleges that Grady

was under a contractual duty to provide reasonable and adequate healthcare to [him] consistent with existing community standards [and that Grady] breached that contractual duty to [him] by failing to perform professional services in accordance with the professional obligation of care.

Hayes also alleges that his hernia repair surgery was performed by a different doctor than the one he agreed to have perform the surgery and that, as a result, Grady failed “to execute” its contract with Hayes “as agreed.” Hayes did not attach a copy of any contract between himself and Grady, and he failed to allege the terms of his alleged contract with Grady Consequently, Grady moved to dismiss the Renewal Suit in relevant part on the grounds that Hayes failed to allege or prove the existence of a contract between himself and Grady and that Hayes’s breach of contract claim sounded in professional negligence. In response to Grady’s motion to dismiss, Hayes argued, in relevant part, that his contract claim arose from an implied contract between a surgeon and himself.

The trial court granted Grady’s motion to dismiss Hayes’s negligence claim for failure to attach an expert affidavit but denied Grady’s motion to dismiss as to Hayes’s breach of contract claim, finding that the complaint sufficiently set forth such a claim. This Court granted Grady’s request for interlocutory review, and Grady now appeals the denial of the motion to dismiss Hayes’s breach of contract claim.

1. As an initial matter, we note that after the trial court had already dismissed the negligence claim, and after this Court granted interlocutory review, but before the appeal was docketed in this Court, Hayes filed in the trial court a motion for leave to amend the Renewal Suit to add an expert affidavit necessary for his negligence claim. Notwithstanding the fact that the filing of this motion evidences Hayes’s desire to continue pursuing his negligence claim, as does the substance of his brief which focuses exclusively on the negligence claim, Hayes’s motion in the trial court did not preserve review of the dismissal of the negligence claim on appeal. If Hayes wanted to continue pursuit of his dismissed negligence claim, he was required to timely file a cross-appeal of that portion of the trial court’s order with this Court. See Brady v. Elevator Specialists, 287 Ga. App. 304, 306 (1) (653 SE2d 59) (2007) (the general rule is that a cross-appeal is required for an appellee to preserve an enumeration of error concerning an adverse ruling). His failure to do so has foreclosed our ability to review that dismissal for error. As a result, the only issue before us on appeal is whether the trial court erred in refusing to dismiss Hayes’s breach of contract claim.

2. Grady argues that Hayes has not alleged any contract between the two of them and thus, the trial court erred in denying Grady’s motion to dismiss Hayes’s breach of contract claim. We agree.

To state a claim for breach of contract, [Hayes’s] complaint must generally allege a factual framework showing parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate. Each of these four essential terms must be certain. In order that it may allege an agreement, a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it.

(Citation and punctuation omitted.) Weathers v. Dieniahmar Music, 337 Ga. App. 816, 822 (2) (788 SE2d 852) (2016). When a complaint does not allege facts showing the existence of a contractual relationship between the plaintiff and the defendant, dismissal is proper because “there is no set of provable facts within the framework alleged by the complaint that would result in [liability] for breach of contract.” Id. at 822 (2) (a).

In his complaint Hayes merely alleges that Grady had a contractual duty to provide reasonable and adequate healthcare and that he did not agree to have his surgical procedure performed by a different, surgeon. Although Hayes’s complaint makes these assertions concerning contractual breaches, the complaint fails to identify any contract or implied contract which existed between himself and Grady or to set forth the terms of any such contract. Further, in response to Grady’s motion to dismiss in the trial court, Hayes claimed in his brief that

[i]n the instant case, Mr. Hayes [sic] claims are tortious and an implied contract exist [sic] between the surgeon and Mr. Hayes; however, the surgeon Mr. Hayes had discussed performing his surgery did not perform the surgery, which was a breach of implied contract. Therefore, the contract did not need to be attached to the complaint.

Decided May 2, 2017

Reconsideration denied May 24, 2017

Weathington Smith, Paul E. Weathington, Jesse K. Broocker, for appellant.

Nathaniel J. Middleton; Greason & Associates, James O. Grea-son, for appellee.

Even when his complaint is construed in the light most favorable to him, in the absence of allegations of fact supporting the existence of a contract or implied contract between Hayes and, Grady — as opposed to a contract between Hayes and some surgeon — including the terms of said contract with Grady, Hayes’s complaint discloses with certainty that he would not be entitled to relief under any state of provable facts on the sole remaining breach of contract claim. Consequently, the trial court erred in denying Grady’s motion as to this claim, and we reverse.

3. In light of our holding in Division 2, we need not address Grady’s argument that Hayes’s breach of contract claim sounds in medical malpractice.

Judgment reversed.

Doyle, C. J., and Reese, J., concur.

       Notably, despite the breach of contract claim being the only issue on appeal, Hayes didnot address the existence of a contract in his brief on appeal.


author: DOYLE, Chief Judge.

text:
    A17A0438.
    DUFF v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (800 SE2d 640)
   DOYLE, Chief Judge.

In this slip-and-fall case, plaintiff Mollie Duff appeals from the grant of summary judgment to defendant Board of Regents of the University System of Georgia. Duff contends that the trial court erred by concluding that rainwater on the floor where she slipped was not, as a matter of law, a hazardous condition. For the reasons that follow, we reverse.

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. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Duff was a student at Georgia Perimeter College. One morning, her father dropped her off at school at approximately 7:45 a.m.; it had not been raining, and the weather “was clear.” After her first class ended, Duff went to her second class, U. S. history, in the same building from 10:00 to 11:15 a.m. Her classrooms did not have windows, so she was unable to see that it had begun raining outside at some point after she arrived. When her history class ended, Duff began her walk to her third class in another building. She first exited the history classroom, walked down the hall, covering the length of her classroom and making it halfway past the next classroom (a computer lab), when she slipped and fell on rainwater that had been brought in by other students entering the building to go to their classes. Duff did not see any water until she fell and noticed water on the floor.

Duff suffered injuries from her fall and sued the Board on a premises liability theory. The Board answered and, following discovery, moved for summary judgment. The trial court granted the motion on the ground that Duff failed to meet her threshold burden to show that the rainwater on the floor amounted to a hazardous condition, i.e., an unusual or unreasonable amount. Duff challenges this ruling on appeal.

In Robinson v. Kroger Co., the Supreme Court of Georgia clarified and summarized Georgia premises liability law as follows:

One who owns or occupies land and by express or implied invitation, induces or leads others to come upon his premise for any lawful purpose,... is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap. The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

The Court also expressly

reminded] members of the judiciary that the “routine” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.

With this legal background in mind, we turn to the facts of this case. The trial court relied on precedent stating that “[t]he risk of harm imposed by some accumulation of water on the floor . . . during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate.” But this concept has been expressly limited by the Supreme Court of Georgia: “[Sjince that concept is based on the common knowledge that the ground outside gets wet on rainy days, it cannot properly be applied to a portion of an in terior space where an invitee has no reason to expect water to accumulate on the floor.”

Here, it is undisputed that Duff lacked any actual knowledge that it was raining and that she fell in an interior portion of the building while walking between classrooms. A building diagram shows that the closest entrance was more than three classrooms away from where she slipped and fell. These circumstances bring Duff’s case outside the line of cases where our courts have held that invitees, as a matter of law, must be charged with the knowledge that rainwater will accumulate on the floor where they fell.

Further, with respect to the amount of water that had accumulated, the record, when construed in favor of Duff as required on summary judgment, contains testimony that there was “standing water,” that Duff “felt the water after [she] hit the floor,” and that the water made her skirt, leg, and hands wet when she tried to get up. There is evidence that approximately 882 students had classes that were about to begin in Duff’s building, and a professor who came to aid Duff testified that there was “a lot” of water on the hallway floor from students waiting to enter their classes, but the amount of water in the spot of the fall after Duff fell was comparable to taking a wet paper towel and wiping it across the floor. In granting summary judgment, the trial court relied on this testimony to conclude that there was no hazard presented by the water, but this ignores the conflicting testimony from Duff that there was “standing water.” Any conflict in the evidence is properly resolved by a jury, not by a court, and viewed with the evidence that Duff’s denim skirt, leg, and hands had become wet from contacting the floor where she fell, this evidence does not demand a finding that no hazard existed.

Based on this record, the absence of an unreasonable hazard is not “plain, palpable, and undisputed.” “Where reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/occupier breached the duty of care to invitees and whether an invitee exercised reasonable care for personal safety, summary adjudication is not appropriate.” Based on the location of Duff’s fall and the evidence of “standing water” where she fell, the trial court erred by granting summary judgment to the Board on the ground that such an amount of water in an interior space of a building does not, as a matter of law, amount to a hazardous condition for premises liability purposes.

Decided May 24, 2017.

The Blaska Law Firm, T. Charles Blaska, Dana J. Norman; The Parker Firm, Brian S. Parker, for appellant.

Christopher M. Carr, Attorney General, Kathleen M. Pacious, Deputy Attorney Gen eral, Loretta L. Pinkston-Pope, A. Ellen Cusi-mano, Senior Assistant Attorneys General, Kathleen S. Turnipseed, Assistant Attorney General, for appellee.

Judgment reversed.

Miller, P. J., and Reese, J., concur.

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

       268 Ga. 735 (493 SE2d 403) (1997).

       (Citations and punctuation omitted.) Id. at 740 (1).

       Id. at 748 (2) (b).

       (Punctuation omitted.) Walker v. Sears Roebuck & Co., 278 Ga. App. 677, 680 (2) (629 SE2d 561) (2006), quoting Cook v. Arrington, 183 Ga. App. 384, 385 (358 SE2d 869) (1987).

       (Emphasis supplied.) Dickerson v. Guest Svcs. Co., 282 Ga. 771, 772 (653 SE2d 699) (2007).

       See, e.g., Walker, 278 Ga. App. at 680 (2) (holding that the risk of harm from some water on the floor is not unusual or unreasonable on a rainy day). Compare Dickerson, 282 Ga. at 772 (limiting Walker and stating that the facts do not support a determination “as a matter of law that a reasonable person would have anticipated that the stairs might get wet on a rainy day”); Parker v. All American Quality Foods, 318 Ga. App. 689, 691 (734 SE2d 510) (2012) (physical precedent only) (summary judgment not appropriate because plaintiff slipped in rainwater after walking past six checkout stations). The Board’s reliance on Season All Flower Shop v. Rorie, 323 Ga. App. 529, 536 (1) (746 SE2d634) (2013) is misplaced in the present circumstance. In that case, the Court addressed a scenario in which an injured plaintiff fell “several feet inside the lobby” and concluded that “ ‘in rainy day slip-and-fall cases plaintiffs are charged with equal knowledge that water is apt to be found in any area frequented by people coming in from the rain outside,’ and not just at the ‘threshold’ of an entrance door.” Id. at 536 (1) (punctuation omitted). Contrary to the plaintiff in Rorie, Duff did not fall near the threshold, and the interior hallway was sufficiently far enough away such that the question of her knowledge is not a plain and palpable one to be resolved at summary judgment.

       See Smith v. Tenet HealthSystem Spalding, 327 Ga. App. 878, 879 (1) (761 SE2d 409) (2014) (“[A]t the summary judgment stage, courts are required to construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences.”) (punctuation omitted).

       See id.

        Robinson, 268 Ga. at 748 (2) (b).

       Id. at 740 (1).

        See Dickerson, 282 Ga. at 772.


text:
    A17A0524.
    MASSEY v. ALLSTATE INSURANCE COMPANY.
    (800 SE2d 629)
   MILLER, Presiding Judge.

Plaintiff Jody Massey appeals from the trial court’s order granting summary judgment to Allstate Insurance Company (“Allstate”) on her claim for uninsured/underinsured motorist (“UM”) coverage under her umbrella policy with Allstate. Massey contends on appeal that the trial court erred when it ruled that her Allstate umbrella policy did not include UM coverage at the time of the accident at issue in this case. For the reasons that follow, we reverse the trial court’s judgment and remand the case for further proceedings.

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 a trial court’s grant of summary judgment de novo, construing the evidence, and all reasonable conclusions and inferences drawn from it, in favor of the nonmovant.

(Citations and punctuation omitted.) Thomas v. Summers, 329 Ga. App. 250, 250 (764 SE2d 578) (2014); see also OCGA § 9-11-56 (c).

So viewed, the evidence shows that Massey suffered several injuries when a truck being driven by Brett Pruitt collided with a car being driven by Massey on June 11, 2012. In May 2014, she filed this action against Pruitt, seeking monetary damages for her injuries. Massey subsequently settled with Pruitt in exchange for $100,000, the limits of his automobile insurance policy Massey then amended her complaint to add a claim for a declaratory judgment to establish UM coverage and limits under both her primary automobile and umbrella policies with Allstate. Massey later settled her primary automobile policy claim with Allstate for the UM coverage limits of $100,000.

Following discovery, Allstate moved for summary judgment on Massey’s claim under her umbrella policy, asserting that the policy had ceased to include UM coverage in June 2010. The trial court agreed and granted summary judgment to Allstate. This appeal followed.

1. Massey challenges the trial court’s determination that her Allstate umbrella policy did not include UM coverage at the time of her accident with Pruitt. She contends that the trial court erred when it ruled that (a) Georgia’s automobile policy nonrenewal statute, OCGA § 33-24-45, does not apply to umbrella policies that include automobile coverage, and (b) as a result, Allstate was not required to comply with the statute’s nonrenewal notice requirements when, in 2010, it purportedly cancelled the UM coverage previously included in Massey’s umbrella policy. We agree.

In June 2009, Allstate issued primary automobile and umbrella insurance policies to Massey. The umbrella policy included both excess liability coverage of $5,000,000 per occurrence and UM coverage of $5,000,000 per accident. Separate premiums were assessed for each type of coverage. In May 2010, Allstate renewed Massey’s umbrella policy for one year, effective June 30, 2010. The 2010 renewal documents again included excess liability coverage of $5,000,000 per occurrence, for which a premium was assessed. The documents indicated, however, that the policy no longer included UM coverage and, accordingly, did not assess a separate premium for such coverage. A subsequent notice dated June 2, 2010, indicated that Massey’s excess liability limits had been reduced to $1,000,000 per occurrence and again included no UM coverage. The 2011 umbrella policy renewal documents, which covered the time period in which the accident at issue occurred, similarly listed Massey’s excess liability limits as $1,000,000 per occurrence and again included no UM coverage.

The primary dispute in this case centers on whether Allstate properly cancelled the UM coverage it previously had provided under Massey’s umbrella policy when it allegedly mailed a notice to her in May 2010 indicating that it was not renewing the UM coverage. To answer this question, we first must determine whether OCGA § 33-24-45 — which contains the requirements with which an insurer must comply to effectively cancel or refuse to renew automobile policy coverages — applies to Massey’s umbrella policy with Allstate. If so, we then must consider whether Allstate properly complied with the statutory requirements when it purported to cancel the UM coverage previously included in that policy We address each question in turn.

(a) Application of OCGA § 33-24-45 to Massey’s umbrella policy

Massey maintains that OCGA § 33-24-45 governs her umbrella policy, while Allstate contends that the statute applies only to primary automobile policies and not to umbrella policies.

The interpretation of a statute is a question of law, which we review de novo. Hill v. First Atlantic Bank, 323 Ga. App. 731, 732 (747 SE2d 892) (2013). “When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant.” (Citation and punctuation omitted.) Deal v. Coleman , 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). “[T]he cardinal rule is to glean the intent of the legislature in the light of the legislative intent as found in the statute as a whole.” (Citation and punctuation omitted.) Abrohams v. Atlantic Mut. Ins. Agency, 282 Ga. App. 176, 178 (1) (638 SE2d 330) (2006). In doing so, we “

follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to ensure that the legislature meant something else. Absent clear evidence that a contrary meaning was intended by the legislature, we assign words in a statute their ordinary, logical, and common meanings.

(Citation and punctuation omitted.) Turner v. Ga. River Network, 297 Ga. 306, 308 (773 SE2d 706) (2015).

With these broad canons of statutory construction in mind, we note that statutes governing UM insurance “are remedial in nature and must be broadly construed to accomplish the legislative purpose.” (Citation and punctuation omitted.) Abrohams, supra, 282 Ga. App. at 178 (1). Further, “provisions in insurance policies that conflict with the plain terms of Georgia’s insurance statutes are illegal and of no effect.” (Citation omitted.) Id. at 181 (3).

By its terms, OCGA § 33-24-45 applies to “automobile policies] or . . . motorcycle policies]” that

insur[e] a natural person as named insured or one or more related individuals resident of the same household and which provide[ ] bodily injury coverage and property damage liability coverage, personal injury protection, physical damage coverage, medical payments coverage, or uninsured motorists’ protection coverage or any combination of coverages[.]

(Emphasis supplied.) OCGA § 33-24-45 (a), (b) (1). The plain language of this provision indicates that it applied to Massey’s 2009-2010 umbrella policy, which included coverage for various types of injuries and damage arising out of her use of an automobile, including injuries and damage caused by uninsured motorists. Nothing in the plain language of this statute suggests that the General Assembly intended to limit the term “automobile policies]” to primary policies only and to exclude umbrella policies that include automobile coverage, and we see no reason why such a distinction should be read into the statute. See Ga. Farm Bureau Mut. Ins. Co. v. Phillips, 251 Ga. 244, 246 (304 SE2d 725) (1983) (noting that OCGA § 33-24-45 “does not distinguish between mandatory minimum and optional amounts of coverage”). “Had the legislature intended to limit the application of [OCGA § 33-24-45] to primary policies only, as argued by [Allstate], it could easily have done so.” Abrohams, supra, 282 Ga. App. at 179 (1) (interpreting a prior version of OCGA § 33-7-11, the UM policy statute). In fact, the General Assembly did just that with respect to a related statute in 2008, when it amended OCGA § 33-7-11 to explicitly exclude umbrella policies. See OCGA § 33-7-11 (a) (1) (requiring UM coverage to be included in motor vehicle liability policies absent written rejection by the insured), (3) (excluding umbrella policies from this requirement); Ga. L. 2008, pp. 1192, 1194, § 1; Wilson v. Automobile Ins. Co., 293 Ga. 251, 252 (744 SE2d 732) (2013).

Notably, before the 2008 amendment to OCGA § 33-7-11, we interpreted that statute — which governs “automobile” and “motor vehicle liability policies]” — to apply to umbrella policies that include automobile and motor vehicle coverage. See Abrohams, supra, 282 Ga. App. at 180 (1). The General Assembly’s decision after Abrohams to expressly exclude umbrella policies from OCGA § 33-7-11, but not to exclude such policies from OCGA § 33-24-45, further supports the proposition that it intended umbrella policies to be governed by OCGA § 33-24-45. See Summerlin v. Ga. Pines Community Svc. Bd., 286 Ga. 593, 594 (2) (690 SE2d 401) (2010) (“The General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it.”) (citation omitted).

For this reason, there is no merit to Allstate’s contention — which the trial court largely accepted — that the 2008 amendment to OCGA § 33-7-11 excluding umbrella policies from that statute shows that the General Assembly also intended umbrella policies to be excluded from OCGA § 33-24-45. The proposition that a legislature manifested its intent to impose the very same limitation on two statutes by amending one, but not the other, turns logic on its head, at least with respect to the statutes at issue here, and ignores our rules of statutory construction. See Summerlin, supra, 286 Ga. at 594-595 (2) (words in a statute are construed in the context of other statutes and the common law); Abrohams, supra, 282 Ga. App. at 178 (1); Tolleson Lumber Co. v. Kirk, 200 Ga. App. 689, 691 (2) (409 SE2d 260) (1991) (a statute should be construed to “square with common sense and sound reasoning” and to avoid “unreasonable or absurd consequences not contemplated by the legislature”) (citation and punctuation omitted). Finally, Allstate’s related claim that umbrella policies should be excluded by OCGA § 33-24-45 as a matter of policy is better addressed to the General Assembly. See Deal, supra, 294 Ga. at 174 (1) (a), n. 11 (policy arguments should be addressed to the legislature, as it is an appellate court’s duty to “interpret the laws as they are written”) (citation and punctuation omitted).

For each of these reasons, we conclude that Massey’s 2009-2010 umbrella policy with Allstate was subject to the nonrenewal provisions of OCGA § 33-24-45, and the trial court erred when it ruled to the contrary.

(b) Allstate’s compliance with OCGA § 33-24-45

Massey contends that Allstate’s purported cancellation of the UM coverage under her umbrella policy in May 2010 was ineffective for failure to comply with the nonrenewal notice requirements set forth in OCGA § 33-24-45. Allstate maintains that, even if the statute applies here, Allstate sufficiently complied with its requirements.

For written notice of nonrenewal to be effective under OCGA § 33-24-45, the insurer must either (a) deliver the notice in person to the insured or (b) deliver the notice via first-class mail and receive “the receipt provided by the United States Postal Service or such other evidence of mailing as prescribed or accepted by the United States Postal Service.” OCGA § 33-24-45 (e) (1). The terms of this statute “must be exactly followed.” Garber v. American Mut. Fire Ins. Co., 131 Ga. App. 366, 368 (4) (206 SE2d 86) (1974) (addressing former Ga. Code Ann. § 56-2430.1, the predecessor to OCGA § 33-24-45); see also American Intl. Life Ins. Co. v. Hartsfield, 147 Ga. App. 213, 216 (4) (248 SE2d 518) (1978) (effective cancellation requires “[sjtrict adherence” to statutory notice requirements). Thus, absent an admission by the insured that actual notice was received, notice that does not comply with these provisions is ineffective. See Travelers Indem. Co. v. Guess, 243 Ga. 559, 560-561 (1) & n. 2 (255 SE2d 55) (1979) (holding that materially identical language in former Ga. Code Ann. § 56-2430—the predecessor to OCGA § 33-24-44 (b), which addresses insurance policy cancellation generally — “must be strictly construed”). Absent compliance with OCGA § 33-24-45’s nonrenewal notice provisions, the policy and its coverages are automatically renewed. See Bank of Toccoa v. Cotton States Mut. Ins. Co., 211 Ga. App. 389, 393 (2) (439 SE2d 60) (1993) (where no nonrenewal notice is provided under OCGA § 33-24-45 (e), a policy renews under the same terms); see also Stedman v. Cotton States Ins. Co., 254 Ga. App. 325, 329 (2) (562 SE2d 256) (2002) (holding that a policy was automatically renewed under OCGA § 33-24-45 where the insured received a renewal declaration well after the statutory deadline).

Massey denies having received the May 2010 nonrenewal notice, and Allstate does not contend that it personally delivered the notice to her. Rather, Allstate asserts that it “complied with all statutory requirements” by mailing the notice to Massey’s address and that it properly established this fact by affidavit. Allstate concedes, however, that it did not produce a receipt or other evidence of mailing “as prescribed or accepted by the United States Postal Service.” See OCGA § 33-24-45 (e) (1). Instead, it argues that requiring it to produce such evidence would be “unreasonable” and unduly burdensome on the facts of this case, given the passage of four years between the issuance of the May 2010 notice and the date on which Massey filed suit.

We first note that Allstate has failed to identify any record evidence supporting its conclusory assertion that complying with the law would impose an undue burden on it. In any event, the statute is clear and must be strictly followed. See Garber, supra, 131 Ga. App. at 368 (4). Allstate’s contention in this regard is essentially a policy question, which, as discussed above, should be directed to the General Assembly. See Deal, supra, 294 Ga. at 174 (1) (a), n. 11; Unified Govt. of Athens-Clarke County v. Athens Newspapers, 284 Ga. 192, 200 (2) (663 SE2d 248) (2008) (appellant’s claim that a statutory deadline was unreasonably short was a policy argument properly addressed to the legislature). Also as discussed above, absent strict compliance with OCGA § 33-24-45’s notice requirements, a covered policy is renewed automatically by operation of law. See Stedman, supra, 254 Ga. App. at 329 (2); Hartsfield, supra, 147 Ga. App. at 216 (4); Garber, supra, 131 Ga. App. at 368 (4). Consequently, because Allstate has not established that it complied with the statutory nonrenewal notice requirements, we must conclude that Massey’s 2009-2010 umbrella policy, which included UM coverage, was renewed with the same coverage in 2010 and 2011. The trial court erred when it ruled to the contrary.

2. As it did before the trial court, Allstate alternatively argues that, under OCGA § 33-24-45 (g), it was excused from complying with the statutory notice requirements because Massey retained “similar coverage on the same motor vehicle.” In a related alternate contention, Allstate maintains that, even if Massey’s umbrella policy continued to provide UM coverage after June 2010, that coverage was capped at the $1,000,000 limits other excess liability coverage. We disagree with both contentions.

OCGA § 33-24-45 (g) provides:

Notwithstanding the failure of an insurer to comply with this Code section, termination of any coverage under the policy either by cancellation or nonrenewal shall be effective on the effective date of any other policy providing similar coverage on the same motor vehicle or any replacement of coverage.

It is undisputed that, for the one-year period ending on June 30,2010, Massey’s Allstate umbrella policy provided both $5,000,000 in excess liability coverage and $5,000,000 in UM coverage. The parties similarly do not dispute that, for the one-year period beginning on June 30, 2010, and subsequent policy periods through the date of the accident, Massey’s primary automobile policy with Allstate included $100,000 in UM coverage. In addition, according to Allstate, Massey’s umbrella policy continued to provide $1,000,000 in excess liability coverage after June 30, 2010. On these grounds, Allstate contends that Massey maintained “similar coverage on the same motor vehicle” when it purportedly cancelled $5,000,000 in UM coverage under her umbrella policy because she still was covered by $100,000 in primary UM coverage and $1,000,000 in excess liability coverage. This contention strains the English language beyond its limits.

First, Allstate’s suggestion that excess liability and UM coverage are “similar coverage” is belied by the very terms of Massey’s 2009-2010 policy, which listed these coverages separately and assessed separate premiums for each. The Insurance Code similarly distinguishes between these two types of coverages, which protect against mutually exclusive losses. See OCGA §§ 33-7-3 (1) (“Liability insurance” protects the insured from liability for injury to another); 33-7-11 (a) (1) (“Uninsured motorist coverage” protects the insured from injury to the insured caused by the owner or operator of an uninsured motor vehicle).

Allstate’s claim that the $100,000 in UM coverage provided under Massey’s primary automobile policy constitutes “similar coverage on the same motor vehicle” is equally meritless. Followed to its logical conclusion, this contention would allow Allstate to avoid the OCGA § 33-24-45 (e) (1) notice requirements simply by providing any reduced amount of UM coverage under any other policy Even if we limit Allstate’s contention to the facts of this case, it is axiomatic that a primary policy with limits of $100,000 does not provide “similar coverage” to an umbrella policy with limits 50 times as high. See Tolleson Lumber Co., supra, 200 Ga. App. at 691 (2) (a statute should be construed to “square with common sense and sound reasoning” and to avoid “unreasonable or absurd consequences not contemplated by the legislature”) (citation and punctuation omitted); cf. OCGA § 33-24-45 (b) (2) (defining “Renewal,” in relevant part, as a superseding policy “providing no less than the coverage contained in the superseded policy”).

Allstate’s alternative claim that Massey’s UM coverage under her umbrella policy was renewed at lower limits of $ 1,000,000 fails for the reasons discussed in Division 1, supra. Notably, Allstate has identified no authority supporting its suggestion that an insurer may make an end-run around the nonrenewal notice requirements by unilaterally lowering coverage limits to one-fifth of the prior limits. We see no logical distinction between failing to renew all coverage and failing to renew $4,000,000 in coverage on a $5,000,000 policy We similarly find no merit in Allstate’s related suggestion that a policy with limits of $1,000,000 provides “similar coverage” to a policy with limits of $5,000,000. See Tolleson Lumber Co., supra, 200 Ga. App. at 691 (2).

Finally, Allstate alternatively contends that OCGA § 33-7-11 capped Massey’s UM coverage under her umbrella policy at $ 1,000,000, the alleged limits of her excess liability coverage under the umbrella policy at the time of the accident. Pretermitting whether Massey’s excess liability coverage under her umbrella policy (which is not at issue in this appeal) was renewed in 2010 and 2011 at $1,000,000 or $5,000,000, Allstate’s suggestion that OCGA § 33-7-11 imposed these limits on her UM coverage is meritless. Allstate itself concedes that OCGA § 33-7-11, by its very terms, does notapplyto umbrella policies issued on or after January 1, 2009. See OCGA § 33-7-11 (a) (1), (3); Ga. L. 2008, pp. 1192, 1194, 1198, §§ 1, 5 (a); Wilson, supra, 293 Ga. at 252. We therefore reject Allstate’s contentions that the trial court’s ruling may be affirmed or modified on any of these alternate bases.

Decided May 24, 2017

Samuel R Pierce, Jr., Robert E. Bourne, for appellant.

Carlock, Copeland & Stair, Frederick M. Valz III, Melissa L. Bailey, William K. Owens, Jr., for appellee.

For each of the above reasons, we reverse the trial court’s order granting summary judgment to Allstate and remand this case to the trial court for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Doyle, C. J., and Reese, J., concur.

       On the facts of this case, Massey’s claim implicates underinsured motorist coverage. The statutory characterization of both uninsured and underinsured motorists is that of “uninsured.” FCCI Ins. Co. v. McLendon Enterprises, 297 Ga. 136, 137, n. 2 & 142 (772 SE2d 651) (2015). The umbrella policy at issue in this case similarly defines “uninsured” to include both uninsured and under insured motor vehicles.

       Although the accident in this case occurred during the 2011-2012 policy period, the relevant nonrenewal notice, dated May 2010, initially applied to the 2010-2011 policy period. There appears to be no dispute that no subsequent nonrenewal notices were issued and that, as a result, whatever coverage was in effect for the 2010-2011 policy period remained in effect for the 2011-2012 period. As further discussed herein, whether the May 2010 nonrenewal notice was effective depends on whether OCGA § 33-24-45 applied to the policy being renewed, in this case, Massey’s 2009-2010 umbrella policy.

       Before 2009, Georgia law required certain insurance policies, including umbrella policies, to include UM coverage unless the insured had rejected such coverage in writing. See Wilson v. Automobile Ins. Co., 293 Ga. 251, 251-252 (744 SE2d 732) (2013). The General Assembly later exempted from this requirement umbrella policies issued on or after January 1, 2009. See Ga. L. 2008, pp. 1192, 1194, 1198, §§ 1, 5 (a); Wilson, supra, 293 Ga. at 252.

       It is unclear on the current record what precipitated the purported reduction in excess liability limits from $5,000,000 to $1,000,000.

       It is undisputed that Allstate continued to provide $100,000 in UM coverage under Massey’s primary automobile policy, and, as discussed above, the parties have settled Massey’s claim under that policy.

       For this reason, Allstate’s reliance on Wilson, supra, 293 Ga. at 252 — in which we interpreted the plain language of OCGA § 33-7-11 post-2008 to exclude umbrella policies — is misplaced.

       A provision allowing electronic delivery of a nonrenewal notice was added to the statute in 2014, well after the date of the notice at issue in this case. See OCGA § 33-24-45 (e) (1), cross-referencing OCGA § 33-24-14; Ga. L. 2014, pp. 829, 833, § 7. Allstate does not contend that it provided Massey with electronic notice.

       To the contrary, Allstate produced what appears to be an internally-generated notice of the mailing of the May 2010 notice that it maintained despite the passage of time.

       The trial court did not address these arguments, given that it ruled in favor of Allstate on its claim that Massey’s umbrella policy was not subject to OCGA § 33-24-45 (e) (1). Nevertheless, the material facts are undisputed. Therefore, in the interest of judicial economy, we exercise our discretion to decide these questions, rather than remanding for the trial court to address them in the first instance. See High Co. v. Arrington, 45 Ga. App. 392, 392 (3) (165 SE 151) (1932) (where the material facts are undisputed and the issue on appeal is a question of law, “it is unnecessary to send the case back for another hearing in the trial court”); accord Ingraham v. Marr, 246 Ga. App. 445, 447 (2) (540 SE2d 652) (2000).

       Allstate’s contention that Massey’s umbrella policy limits were reduced to $1,000,000 in June 2010 is further addressed herein.

       As discussed above, OCGA § 33-7-11 (a) (1) requires motor vehicle liability policies to include UM coverage with the same coverage limits as the liability coverage absent written rejection by the insured.


author: BARNES, Presiding Judge.

text:
    A17A0833.
    TSELIOS et al. v. SARSOUR.
    (800 SE2d 636)
   BARNES, Presiding Judge.

Jad Sarsour brought this suit on a promissory note against Demetrios Tselios and George Tselios, seeking principal, interest, and attorney fees. Sarsour moved for summary judgment on his claim, and the trial court granted the motion, resulting in this appeal by the defendants. As explained below, although the defendants failed to respond to Sarsour’s motion, summary judgment cannot be entered against the nonmoving party by default, and Sarsour failed to make out a prima facie case for recovery on the note. We therefore reverse the trial court’s grant of summary judgment to Sarsour.

On appeal from the grant of summary judgment, we conduct a de novo review and construe the evidence in the light most favorable to the nonmoving party Barnett v. Atlanta Independent School System, 339 Ga. App. 533, 533-534 (792 SE2d 474) (2016). So viewed, the evidence showed that in February 2016, Sarsour brought the present action against the defendants, alleging that they had executed a promissory note in his favor in the principal sum of $80,000 and had defaulted on the note. Sarsour sought recovery of principal, interest, and attorney fees. His complaint was not verified. The defendants answered that they were without sufficient knowledge or information to form a belief as to the allegations in the complaint and asserted several affirmative defenses.

Sarsour moved for summary judgment on his promissory note claim. He filed a brief in support of his motion, as well as a statement of material facts and theory of recovery to which the note and a demand letter were attached as exhibits. Sarsour did not file any affidavits, depositions, admissions, or answers to interrogatories in support of his motion.

The promissory note attached as an exhibit to Sarsour’s statement of facts was dated March 6, 2015, and it provided that the defendants were to repay the $80,000 principal balance within six months. The note stated that if the defendants repaid the principal during that time period, no interest would be owed. The “Definitions” section of the note defined “Default” as “the failure to cure any untimely payment within five business days of [the defendants’] receipt of notice of either a missing payment or a dishonored payment” and provided for a “Default Rate” of interest. The note further provided that “[a]ll notices and other communications required . . . pursuant to this Note must be in writing.” In the event of default by the defendants, the note specified that Sarsour had several available remedies, including taking any action available to him “at law, in equity or otherwise” and seeking “reasonable attorneys’ fees” for efforts taken to collect on the note.

The demand letter attached as an exhibit to Sarsour’s statement of facts was addressed to the defendants from Sarsour’s attorney The letter, dated January 11, 2016, stated that the defendants had failed to repay the $80,000 principal balance of the note within six months of the execution of the note. The letter demanded that the defendants cure their failure to repay the note by paying the $80,000 in principal plus $4,800 in interest, and the letter indicated that further interest as well as attorney fees would be sought if the defendants failed to make the payment.

After the defendants failed to respond to Sarsour’s motion for summary judgment, the trial court granted the motion, finding that the uncontroverted evidence showed that the defendants had failed to repay the $80,000 in principal owed on the note. The trial court found that the defendants were liable for the $80,000 in principal, plus $15,228 in interest (which would continue to accrue at the rate of $39.45 per day) and $14,284 in attorney fees.

On appeal, the defendants contend that the trial court erred in granting summary judgment to Sarsour because he failed to present sufficient competent evidence to make out a prima facie case for recovery on the note. The defendants point out that summary judgment cannot be entered by default, and they emphasize that Sarsour did not present any affidavits or other sworn testimony to support his contentions.

Summary judgment is proper only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). Where the party moving for summary judgment is the plaintiff, he must make a prima facie showing that no material issues of fact exist and that he is entitled to judgment as a matter of law before the burden shifts to the defendant to establish a possible defense. See Sawnee Forest, LLC v. CRE Venture 2011-1, LLC, 339 Ga.App. 339, 341 (2) (793 SE2d 542) (2016); Smith v. Gordon, 266 Ga.App. 814, 814 (1) (598 SE2d 92) (2004).

“Because there is no such thing as a default summary judgment,” a defendant’s failure to respond to a plaintiff’s motion for summary judgment does not automatically entitle the plaintiff to judgment in his favor. Rapps v. Cooke, 234 Ga. App. 131, 131 (1) (505 SE2d 566) (1998). “A party opposing a summary judgment motion need not respond and may instead rely on the movant’s failure to remove any fact questions.” Sherman v. Thomas-Lane American Legion Post 597, 330 Ga.App. 618, 620(1) (768 SE2d 797) (2015). And while “[a] failure to respond to a motion for summary judgment results in waiver of the right to present evidence in opposition to the motion, . . . the moving party must still show from the pleadings and the evidence that summary judgment is appropriate.” Rapps, 234 Ga. App. at 131-132 (1). Accordingly, irrespective of the defendants’ failure to respond to Sarsour’s motion for summary judgment, we must evaluate whether Sarsour met his burden of establishing a prima facie case for recovery on the promissory note. See id. We conclude that Sarsour failed to meet his burden.

“When a promissory note, on its face, shows that it is past due and in default, the plaintiff establishes a prima facie right to judgment, and the burden shifts to the [defendant] to establish an affirmative defense.” (Emphasis in original) ABI Investments, LLC v. FSGBank, Nat. Assn., 326 Ga. App. 367, 368-369 (756 SE2d 606) (2014). See Roca Properties, LLC v. Dance Hotlanta, 327 Ga. App. 700, 706 (1) (761 SE2d 105) (2014). However, if the plaintiff fails to point to any competent evidence reflecting that the defendant defaulted on the note, the burden does not shift to the defendant, and the grant of summary judgment in favor of the plaintiff is inappropriate. ABI Investments, LLC, 326 Ga. App. at 369.

As previously discussed, in support of his motion for summary judgment, Sarsour included, as exhibits to his motion, the promissory note and the demand letter sent to the defendants by his attorney. The note provided that a “default” occurred upon “the failure to cure any untimely payment within five business days of [the defendants’] receipt of notice of either a missing payment or a dishonored payment,” and that “notice” had to be in writing. The demand letter gave the defendants written notice of their failure to make timely payment of the principal as required by the note.

Significantly, however, Sarsour presented no competent evidence that the defendants failed to cure their untimely payment within five business days of receiving the required written notice, and thus failed to show that the defendants were in default under the specific terms of the note. In this regard, Sarsour presented no affidavits or other sworn documents in support of his summary judgment motion, instead relying on his prior pleadings, his brief filed in support of his motion, and his statement of facts and theory of recovery that was filed pursuant to Uniform Superior Court Rule 6.5 (“Rule 6.5”). But, unsworn pleadings such as an unverified complaint do not constitute evidence and thus cannot be considered in addressing a motion for summary judgment. See Wellstar Health System v. Painter, 288 Ga. App. 659, 662, n. 5 (655 SE2d 251) (2007). Likewise, “[a] brief in support of a motion for summary judgment is not proper evidence upon which summary judgment can be granted.” (Citation and punctuation omitted.) Crisler v. Farber, 258 Ga. App. 456, 458 (2) (574 SE2d 577) (2002). Furthermore, “the right to summary judgment is not shown by mere reference to the Rule 6.5 statement of facts. The statement of facts under Rule 6.5 is not evidence for purposes of summary judgment, and [the defendants’] lack of response thereto [does] not amount to an admission of fact.” Rapps, 234 Ga. App. at 132 (1).

Decided May 24, 2017.

O’Dell & O’Neal, Justin B. O’Dell, Leslee C. Hungerford, for appellants.

Shapiro Law Group, Eric L. Shapiro, for appellee.

Given the absence of any competent evidence that the defendants defaulted under the terms of the promissory note, Sarsour failed to establish a prima facie right to judgment. Accordingly, the trial court erred in granting summary judgment to Sarsour and must be reversed. See ABI Investments, LLC, 326 Ga. App. at 369 (summary judgment on promissory note claim improper where plaintiff, as moving party, failed to present evidence that defendant had defaulted under the terms of the default provision of the note).

Judgment reversed.

McMillian and Mercier, JJ., concur.

       Sarsour did not file an appellee’s brief as required by our rules. See Court of Appeals Rule 23 (b) (“Appellee’s brief shall be due within 40 days after the appeal is docketed or 20 days after the filing of appellant’s brief, whichever is later. Failure to timely file may result in non-consideration ofthe brief and may subject counsel to sanctions, including contempt....”); Court of Appeals Rule 25 (b) (1) (“Failure [to respond to an appellant’s statement of facts] shall constitute consent to a decision based on the appellant’s statement of facts. Except as controverted, appellant’s statement of facts may be accepted by this Court as true.”).

       Demetrios Tselios did not file an answer within 30 days of being served with the summons and complaint as required by OCGA § 9-11-12 (a), thereby causing the case against him automatically to become in default under OCGA § 9-11-55 (a). However, he thereafter filed an answer and paid court costs within the 15-day period for opening default as a matter of right. See OCGA § 9-11-55 (a) (“If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs....”); Florez v. State of Ga., 311 Ga. App. 378, 382 (1) (c) (715 SE2d 782) (2011) (“[T]o open default during the 15-day period, the appellants need only have filed their answer and paid costs[;] no court action was required!.]”); Parker v. Branan, 108 Ga. App. 229, 229 (2) (132 SE2d 556) (1963) (right to open default within 15-day period is “absolute”).

       The rules of evidence apply in summary judgment proceedings, R&G Investments & Holdings, LLC v. American Family Ins. Co., 337 Ga. App. 588, 596 (3) (787 SE2d 765) (2016), and “[i]n general, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing.” (Citation and punctuation omitted.) Jaycee Atlanta Dev., LLC v. Providence Bank, 330 Ga. App. 322, 325 (2) (765 SE2d 536) (2014). But, the promissory note at issue in this case was self-authenticating. See OCGA § 24-9-902 (9) (self-authenticating documents include “[cjommercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law”); Jaycee Atlanta Dev., LLC, 330 Ga. App. at 325 (2) (loan documents were self-authenticatingunder OCGA § 24-9-902 (9)). And, in any event, the defendants waived any objection on authentication grounds to the note or demand letter by not objecting to their inclusion as exhibits in support of the summary judgment motion. See Amah. v. Whitefield Academy, 331 Ga. App. 258, 262 (2) (770 SE2d 650) (2015).

       Rule 6.5 provides:
      Upon any motion for summary judgment pursuant to the Georgia Civil Practice Act, there shall be annexed to the notice of motion a separate, short and concise statement of each theory of recovery and of each of the material facts as to which the moving party contends there is no genuine issue to be tried. The response shall include a separate, short and concise statement of each of the material facts as to which it is contended there exists a genuine issue to be tried.


author: Branch, Judge. BETHEL, Judge,

text:
    A17A0631.
    In the Interest of M. G. W. et al., children.
    (801 SE2d 102)
   Branch, Judge.

A mother who surrendered her parental rights to six children appeals the denial of her motions to vacate or set aside, and for reconsideration, of a juvenile court’s decision to terminate her parental rights to the children. The mother primarily argues that she was denied her right to counsel at a hearing on her motions and also denied effective assistance of counsel. For the reasons given below, we vacate the court’s order and remand for further proceedings.

For approximately 18 months beginning in July 2014, the Glynn County Department of Family and Children Services (“the Department”) had been involved with the mother, multiple fathers, and their children related to serious issues of domestic violence and the mother’s failure to protect the children properly In December 2015, the Department filed a petition to terminate the parental rights of the mother (and fathers) on several grounds, and the juvenile court appointed counsel to represent the mother. A hearing was set on the petition for May 9, 2016, but three days before the hearing, the mother executed both a “Surrender of Rights [and] Final Release for Adoption” and an “Acknowledgment of Surrender of Rights” for each of her six children named in the petition (the “surrender documents”). On May 9, the termination hearing proceeded during which the State represented that the mother had executed surrenders of parental rights to all six children on May 6. And the mother made a statement that she thought surrendering her rights to the children was in their best interests. The actual surrenders, however, were not admitted into evidence at that hearing.

In the days following the hearing, however, the mother changed her mind and decided to withdraw her decision to surrender the rights to her children. On May 13, the mother saw the children for the last time and later wrote a note in which she stated that she wished to withdraw the surrenders; she served the Department’s case manager with the withdrawal on May 17, 11 days after executing the surrenders in the first place. Nevertheless, on June 22, the juvenile court entered an order terminating the mother’s parental rights on the ground that the mother surrendered her rights and did not withdraw her surrenders within ten days as required by law. Under OCGA § 19-8-26 (g), the mother had ten days to revoke those surrenders, and that ten-day period included intervening weekends and holidays.

The mother, through her appointed counsel, then filed a motion to vacate or set aside the termination order and, later, a motion for reconsideration of the same. In the motion to vacate or set aside, the mother argued that her surrenders were timely and that she had not been afforded an opportunity to be heard on her surrenders, including whether they were timely At the same time, the mother’s counsel filed a motion to withdraw as counsel of record. On July 14, the juvenile court held the first of two hearings on the motions. At the first hearing, the mother appeared with her appointed counsel who explained that the mother contended that counsel wrongly advised the mother that the ten-day limit on withdrawing a surrender of parental rights did not include weekends, which is why the mother believed that she had timely withdrawn her surrenders. The court recognized that this constituted a colorable claim of ineffective assistance of counsel. Counsel also explained that the mother stated that she had new counsel and wanted appointed counsel to withdraw. But the mother’s new counsel was not present, and the mother sought a continuance. The court granted appointed counsel’s motion to withdraw and granted a continuance to July 25, 2016. The court also directed the mother to provide the court with her new attorney’s name, address, and telephone number by 5:00 p.m. the following day; she was also instructed that on July 25, the hearing would proceed “with or without an attorney.”

At the July 25 hearing, the mother reported that she had paid an attorney some money, but not the full fee, and had a receipt as evidence; although she had tried to contact that attorney, she did not know where he was that day While court personnel attempted to contact the attorney, the court allowed the Department to question the mother under oath about her attempts to contact the attorney Court personnel also attempted to determine if the name shown on the receipt was that of a member of the State Bar. According to the trial court’s order, no such person could be found. The Department then asked the court if it should wait for resolution of the location of the mother’s attorney or whether it could question the mother about the withdrawal of her surrenders; the court responded, “Well, I’m trying to decide whether I should appoint her an attorney for this.” Following some additional questions about her attempts to contact the new attorney and her excuses for not ensuring the attorney’s presence, the court stated, “Well, I’ll tell you what, I’m tired of all this foolishness.” Ultimately, the court decided that it was going to proceed without an attorney for the mother.

The Department then introduced the surrender documents and questioned the mother about them. Although she admitted signing the documents, she asserted that she cannot see well and that she relied on a statement by her appointed attorney to the effect that the ten-day deadline for withdrawing her surrenders did not include weekend days. She admitted, however, that her appointed counsel had read the surrender documents to her and that they said that the ten-day period for withdrawing her surrenders extended “not later than ten days from the date of the surrender and that after such ten-day period I shall have no right to revoke the surrender, [and] that the ten days shall be counted consecutively.” The court admitted the surrender documents into the record without objection by the mother.

At the same hearing, the mother’s former counsel testified that she fully explained the surrender documents to the mother, line by line. When asked what she told the mother about counting the ten-day period for withdrawing surrenders, however, the former counsel gave a somewhat ambiguous response:

Q: Did you at any time tell her weekends don’t count in regard to counting the ten days?
A: I did, I told her that if . . . the tenth day fell on a Saturday, Sunday or holiday then those days wouldn’t count, [it would] be the next business day.
Q: But you never told her that there was a general provision that weekends aren’t counted in the calculation of ten days but if the last of that tenth day falls on one of those days?
A: I never did tell her that. I actually read [the paragraph of the surrender documents that explains the withdrawal period] to her many times and ... I read it over and over to her.

The mother, acting pro se, declined to cross-examine her former counsel. The court ruled against the mother at the end of the hearing and entered an order denying the mother’s motions to vacate/set aside and for reconsideration of the termination of her parental rights. The court held that the plain language of the surrender documents, which the mother admits her attorney read to her, “made it clear that only if the 10th day fell on a weekend or holiday, could the withdrawal be made after the 10th day” And, given that the mother filed her surrender on the eleventh day following her execution of the surrenders and there being no allegation of duress, fraud or incapacity, the mother’s attempt to withdraw her surrenders on the eleventh day had no effect. The court added that

based upon a review of the record as a whole, . . . even if the mother had not surrendered her parental rights, it is extremely probable that any rational trier of fact would have found by clear and convincing evidence that the Department had met its burden and that the petition for terminating the mother’s parental rights would have been granted.

We granted the mother’s application for discretionary appeal of the juvenile court’s denial of the mother’s motions. On appeal she contends that the trial court should have appointed counsel to represent her at the post-termination hearings and that by failing to do so, the trial court deprived her of effective assistance of counsel. The Department argues that under the circumstances, the mother’s lack of representation at the July 25 hearing “was a result of her own failure, was entirely within her control and constituted a waiver of her right to counsel.”

With the passage of the new Juvenile Code, the Georgia legislature again has made clear as a matter of statutory law that an indigent parent in a termination proceeding has a right to counsel at all stages of the proceeding. OCGA § 15-11-262 (a) (“[a] child and any other party to a [termination] proceeding . . . shall have the right to an attorney at all stages of the proceedings”); see also Nix v. Dept. of Human Resources, 236 Ga. 794, 795 (225 SE2d 306) (1976) (same) (applying pre-2014 juvenile code); In the Interest of A. H. P., 232 Ga. App. 330, 334 (2) (500 SE2d 418) (1998) (mother entitled to effective representation at termination hearing) (applying pre-2014 juvenile code). And “to waive a right as fundamental as effective counsel, the trial court must, on the record, determine that the waiver is knowing, intelligent and voluntary.” In the Interest of J. M. B., 296 Ga. App. 786, 789 (676 SE2d 9) (2009) (case involving termination of parental rights) (citation and punctuation omitted).

In In the Interest of A. M. A., 270 Ga.App. 769, 774 (3) (607 SE2d 916) (2004), this Court considered whether a juvenile court erred in failing to appoint an attorney to represent a mother at a termination hearing or failed to hold a hearing to determine whether counsel should have been appointed. In that case, the court had advised the mother over a month prior to the termination hearing that she could “apply for a court appointed attorney if she wished, but that the termination hearing would take place on 11/13/03.” Id. The mother responded that she wished to retain her own attorney. Id. But on the morning of the hearing, the mother appeared without counsel. Id. An indigent defense attorney informed the court that it was unclear whether the mother qualified as indigent for appointment of counsel, in part because she had just lost her job. Id. at 774-775 (3). But based on the warning that the court had given the mother about the hearing proceeding as planned, the court held that the mother “didn’t qualify promptly or appropriately. She’s on her own.” Id. at 775 (3).

Based on the applicable law at the time, which, as now, provided that an indigent parent was entitled to “effective representation at all stages of any proceeding involving the termination of that parent’s right to his or her child,” A. M. A., 270 Ga. App. at 774 (citation omitted), this Court held that because it was unclear whether the mother was indigent at the time of the hearing, “it was incumbent on the court to make inquiry into appellant’s financial status and properly determine whether she was indigent.” Id. at 775. And the court’s failure to do so was error despite the warning the court gave the mother about having to apply for an indigent defense attorney. Id. “[I]t is the trial court’s responsibility to make a determination of indigence based upon evidence and to establish a record of such finding.” Id. (citation and punctuation omitted).

Here, the mother clearly indicated her desire to be represented by counsel at her post-hearing motions, as shown by her efforts to hire a new lawyer to pursue her claim that her appointed counsel had provided ineffective representation. Yet when the mother’s new attorney failed to appear, perhaps because of the mother’s inability to pay fully, the juvenile court did not determine whether the mother was still indigent and did not appoint another lawyer to represent her. And when the court elected to go forward without an attorney, the court did not determine that the mother knowingly and voluntarily agreed to waive her right to counsel. See J. M. B., 296 Ga. App. at 788-789 (no knowing and voluntary waiver shown where mother, who was previously deemed indigent, failed to reply to court letter asking her to contact court if she wished to have representation at the termination hearing). Rather, the court appears to have concluded that the mother was not indigent yet failed to employ reasonable diligence in obtaining her own counsel and, as a result, forfeited her right to counsel. See A. M. A., 270 Ga. App. at 776 (3) (non-indigent mother could waive right to appointed counsel by failure to use reasonable diligence to hire attorney).

Under these circumstances, we must vacate the trial court’s denial of the mother’s motions to set aside/vacate and for reconsideration, and remand the case to the trial court. See A. M. A., 270 Ga. App. at 775-776 (3) (remand required where juvenile court in termination proceedings failed to determine whether unrepresented parent was entitled to appointed counsel and, if not, whether parent had waived right to counsel). On remand, the trial court must hold a hearing to determine whether the mother was indigent at the time of the July 25, 2016 hearing. If she was, the court must appoint counsel for her and conduct a new hearing on her motions, which essentially will constitute a hearing on her claim of ineffective assistance of counsel. If she was not indigent at the time, the court must determine whether she employed reasonable diligence in obtaining an attorney for the July 25, 2016 hearing. See id. at 776 (3). If she did employ reasonable diligence, she would be entitled to a new hearing on her motions; if she did not employ reasonable diligence, the juvenile court may reenter its original order. Based on the above, this Court need not reach the mother’s second enumeration of error concerning the claim of ineffective assistance of counsel.

Judgment vacated and case remanded with direction.

McFadden, P. J., concurs. Bethel, J., concurs fully and specially.

BETHEL, Judge,

concurring fully and specially.

I concur fully with all that is said in the majority’s opinion and write specially in hopes of providing guidance for the bench in future cases sharing the time line before the court today Here, the surrenders had not fully ripened at the time of the previously scheduled hearing. The juvenile court, nevertheless, relied exclusively on the now contested surrenders as the basis for terminating parental rights. Because the surrenders are contested at this stage in the proceedings, they cannot form the basis for the juvenile court to be affirmed. Without the surrenders, the instant order lacks sufficient findings of fact and conclusions of law to support termination of the mother’s parental rights.

Decided May 26, 2017.

The Schofield Law Firm, Caroline A. Schofield, for appellant.

Christopher M. Carr, Attorney General, Annette M. Cowart, Deputy Attorney General, Shalen S. Nelson, Penny L. Hannah, Sen ior Assistant Attorneys General, James A. Chamberlin, Jr., Assistant Attorney General, for appellee.

Had the juvenile court developed the record at the hearing and made appropriate findings and conclusions based on the record (as opposed to relying exclusively on the surrenders), its failure to determine whether counsel should be appointed for the mother at the July 25, 2016 hearing would be of no consequence. Such an order would provide sufficient independent grounds to terminate parental rights and the surrenders would be mere surplusage. With this in mind, I take the opportunity to recommend to the interested bench and bar the practice of conducting a full hearing and entering a comprehensive order in cases where an as yet unripened surrender is pending at the time of the hearing.

       The ten-day deadline for revoking a surrender is a firm one. See In the Interest of B. G. D., 224 Ga. App. 124, 128 (2) (479 SE2d 439) (1996) (“a parent may not revoke his or her valid surrender after ten days”); see also In the Interest of A. B., 311 Ga. App. 629, 633 (1) (716 SE2d 755) (2011).

       On each surrender, the mother signed an acknowledgment of her right to revoke the surrender. The acknowledgment provided:
      I have the unconditional right to revoke [ ] the surrender by giving written notice, delivered in person or mailed by registered or statutory overnight delivery to [the Department] not later tha[n] ten (10) days from the date of the surrender and that after such ten (10) day period, I shall have no right to revoke the surrender .... [T]he ten (10) days shall be counted consecutively beginning with the day immediately following the date hereof[;] however, if the tenth (10th) day falls on a Saturday, Sunday, or legal holiday then the last day on which the surrender may be withdrawn shall be the next day that is not a Saturday, Sunday, or legal holiday. . . .

       The new Juvenile Code became effective on January 1, 2014, and it applies “to all offenses which occur and juvenile proceedings commenced on and after such date.” Ga. L. 2013, pp. 294, 514, § 5-1.

       Thus, Georgia, like most other states, has chosen to require higher standards “than those minimally tolerable under the [United States] Constitution.” See Lassiter v. Dept. of Social Svcs. of Durham County, N. C., 452 U. S. 18, 31-32 (II) (C), 33 (IV) (101 SCt 2153, 68 LE2d 640) (1981) (holding that an indigent parent in a termination proceeding does not have an absolute right to appointed counsel under the Sixth and Fourteenth Amendments to the United States Constitution); see also In the Interest of B. R. F., 299 Ga. 294, 297-298 (788 SE2d 416) (2016) (Georgia provides a statutory right to counsel for indigent parents in termination proceedings.).

       The mother need not show harm to obtain relief because such harm is presumed. See J. M. B., 296 Ga. App. at 790-791 (“total and erroneous denial of appointed counsel during the termination hearing is presumptively harmful because it calls into question the very structural integrity of the fact-finding process”). Although J. M. B. involved the termination hearing itself, given that Georgia law provides a right to counsel at “all stages of” termination proceedings, we conclude that harm is presumed in this case as well.

       This was an understandable choice by the judge given that the parent in question was present in court and affirmed her surrender at that time.

       See generally In the Interest of A. S., 339 Ga. App. 875 (794 SE2d 672) (2016).


author: DILLARD, Presiding Judge.

text:
    A17A0173.
    CURRY v. DEPARTMENT OF TRANSPORTATION.
    (801 SE2d 95)
   DILLARD, Presiding Judge.

In 2007, the Georgia Department of Transportation (“DOT”) filed a petition in the Superior Court of Laurens County, under OCGA § 32-3-4, to condemn access rights to property owned by Christy Curry for the construction of a limited-access highway. Following trial, a jury awarded Curry $86,000 as “just compensation,” and the trial court entered a judgment accordingly. Curry now appeals that award as inadequate and seeks a new trial, arguing that the trial court erred by instructing the jury on a means of determining consequential damages that was inaccurate as a matter of law and inapplicable to the facts of this case. For the reasons set forth infra, we affirm.

Construed in favor of the verdict, the record shows that the subject property owned by Curry is located in Dublin, Laurens County, Georgia, at the intersection of Georgia Highway 257 and the Georgia Highway 441 Bypass. Prior to the construction of the 441 Bypass, the county road that crossed Highway 257 to form that intersection was known as Firetower Road. Also prior to the 441 Bypass construction, Highway 257 had been widened to a five-lane highway with a middle turn lane, and the DOT acquired both property and access rights from Curry at that time for the project.

On March 23, 2007, the DOT filed a condemnation petition to acquire all of Curry’s access rights on Firetower Road, which constituted approximately 1,313 linear feet, in order to begin construction on the 441 Bypass, which was to be a limited-access highway And indeed, it is undisputed—and was at the time—that after the acquisition, Curry would no longer have access to Firetower Road, as that road would cease to exist. At the same time that it filed its petition, the DOT paid into the trial court’s registry $118,250, which it estimated as just and adequate compensation for Curry’s access rights. Shortly thereafter, Curry filed an answer to the petition, contesting the adequacy of the compensation.

In 2015, the matter proceeded to a jury trial, focusing exclusively on the amount of just and adequate compensation to be paid to Curry for the acquisition of the access rights. During the trial, the DOT presented evidence demonstrating that Curry owned another tract of property on Highway 257, which adjoined the subject property, and that she had access to Highway 257 via both tracts. In addition, the DOT presented the testimony of a civil engineer, who testified regarding the scope of the project and its effect on Curry’s access, and a real estate appraiser, who testified as to the value of Curry’s property before and after the acquisition and opined that the diminution in value Curry suffered based on loss of access rights was $68,755. Curry, in turn, presented testimony from another real estate appraiser, who claimed that the acquisition resulted in the subject property suffering a diminution in value of $207,000, due to the fact that Curry could no longer access areas of her property that could be developed for commercial uses.

At the conclusion of the trial, the jury awarded Curry $86,000. And thus, because the DOT had initially paid $118,250 into the court’s registry, the trial court entered judgment against Curry in the amount of $32,250. This appeal follows.

In her sole enumeration of error, Curry contends that the trial court erred by instructing the jury on a means of determining consequential damages for loss of right of access that was inaccurate as a matter of law and inapplicable to the facts of this case. We disagree.

It is well established that a jury charge must “be adjusted to the evidence, apt, and a correct statement of the applicable law.” But jury charges cannot be construed in isolation. Instead, they must be “read and considered as a whole in determining whether the charge contained error.” Importantly, the review of an allegedly erroneous jury instruction is “a legal question, and we therefore owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” Bearing these guiding principles in mind, we turn now to Curry’s specific claim of error.

In this matter, shortly after instructing the jury as to the parties’ stipulation that the DOT had taken 1,313.26 linear feet of access rights from Curry, the trial court further instructed as follows:

Now, the property rights taken in this case are access rights.
And the damage in this case is called consequential damages and pertains to the property of the owner after access rights were acquired.
The Condemnee is entitled to recover the difference in the fair market value of her property before and after the taking of her access rights.

Then, after explaining the concept of a limited-access highway under the law, the court provided the following instruction:

If the construction of a limited-access highway interferes with the owner’s access right, the owner’s right of access to an existing road would have to be taken into account, condemned, and included in the owner’s compensation.
Now, a property owner of land contiguous to a public road has “right to access or easement of access” of the road and he cannot be deprived of this right without just and adequate compensation being paid. This right of access consists of the right of egress and ingress to the abutting public road. However, a property owner is not entitled to access at all points on the boundary between his property and the public right of way, but is entitled to convenient access. If the means of access are not substantially interfered withfj the property owner is not entitled to consequential damages for loss of access. The measure of damages is any diminution to market value of the remaining property by reason of such interference. Whether there has been a substantial interference and any reduction in fair market value by reason of such interference is for you to determine.
I charge you that where the owner of a property contends his right of access or easement of access to a public road has been deprived, you should consider whether the owner has any alternative access when you determine the amount of damages, if any, due to the deprivation or partial deprivation of a means of access to the property.
I charge you that in determining the access available to Condemnee’s property, you may consider evidence of access to the subject property from adjoining property ownedby the Condemnee. Where the evidence shows that two parcels of land have (1) a unity of use, (2) are physically contiguous, and (3) have identical ownership, the other separate property may be considered when considering the access available to the Condemnee.

Both during the charge conference and after the court instructed the jury, Curry objected to the italicized language above in the charge as to consequential damages. Specifically, Curry contends that in McDonald v. Department of Transportation, this Court held that providing this same charge in a case involving nearly identical facts constituted reversible error.

In McDonald, the DOT condemned part of the condemnee’s land in order to construct a limited-access highway. Prior to the condemnation, the condemnee had access to two county roads, Park City Road and Washington Road, adjoining the property. But afterward, he lost all access to Park City Road. On appeal of the adequacy of the compensation award, the condemnee argued that the trial court erred by charging the jury as follows:

A property owner has a right of access to his property from a public street, and the owner cannot be deprived of his right of access without just and adequate compensation being paid. However, a property owner is not entitled to access to his land at all points on the boundary between the property and all streets, if entire access has not been cut off, and if he is offered a convenient access to his property, then his means of entering and exiting the property have not been substantially interfered with and the property owner cannot recover consequential damages for the access to the property.

And finding that the charge did not govern a situation where entire access to a single street is removed although partial access to other streets remains, we held that the case was more analogous to the facts in Department of Transportation v. Whitehead, in which the con-demnee had frontage on 19th Street and West Peachtree Street but lost all access only to the latter after condemnation. There, as we discussed, the Supreme Court of Georgia held:

The right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid. The easement consists of the right of egress from and ingress to the abutting public road and from there to the system of public roads. Since the easement is a property right, compensation for interference with the easement does not depend on the property owner’s actual use of it at that time. Thus, the DOT deprived [the condemnee] of his easement of access onto the abutting Peachtree/West Peachtree Street, and must compensate him for the taking, irrespective of [the condemnee’s] easement of access onto the abutting 19th Street. However, the jury should consider whether the owner has any alternative access, such as 19th Street in the instant case, when it determines the amount of damages, if any, to the owner due to the deprivation of one means of access to his property.

Consequently, we held in McDonald that the jury should have been instructed that the condemnee’s complete loss of access to Park City Road was a compensable taking and that damages, if any, would be mitigated by continued access to Washington Road. And importantly, because the trial court instructed the jury that “the taking of frontage along Park City Road was not compensable, the erroneous instruction must be considered a harmful error requiring reversal of the jury’s verdict.”

As previously noted, Curry argues that the facts in this case are nearly identical to those at issue in McDonald, and thus, we should similarly hold that the trial court’s jury instructions here on consequential damages for loss of right of access were inaccurate and amounted to reversible error. But while we agree that the facts at issue here are quite similar to those at issue in McDonald, the trial court’s jury instructions in this matter were not. Indeed, although part of the trial court’s charge in this proceeding incorporated the objectionable charge from McDonald, it also included much of the same language employed by our Supreme Court in Whitehead to explain that a condemnee must be compensated for loss of right of access to a public road but that, in determining damages, consideration can also be given to whether the condemnee has any alternative access, which was in fact the case here. Furthermore, the trial court in this matter also instructed the jury that “[i]f the construction of a limited-access highway interferes with the owner’s access right, the owner’s right of access to an existing road would have to be taken into account, condemned, and included in the owner’s compensation,” and that the proper measure of damages was the difference between the property’s value before and after the condemnation. Given these particular circumstances, the trial court’s jury instructions on determining consequential damages for loss of right of access, when viewed as a whole, were neither confusing nor misleading. Moreover, Curry has failed to show how she was prejudiced by the allegedly objectionable portion of the instruction. Indeed, if the jury even considered the language stating “[i]f the means of access are not substantially interfered with[,] the property owner is not entitled to consequential damages for loss of access[,]” it obviously rejected it, given that it awarded Curry a larger amount of compensation than the DOT argued was just and adequate. Accordingly, the trial court did not commit reversible error in providing these instructions.

Decided May 18, 2017

Reconsideration denied May 31, 2017

Baker, Donelson, Bearman, Caldwell & Berkowitz, Charles L. Ruffin, Ivy N. Cadle, Hope L. Martin, for appellant.

Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Mary Jo Volkert, Senior Assistant Attorney General, Daniel M. King, Jr., Assistant Attorney General, for appellee.

Judgment affirmed.

Ray and Self, JJ., concur.

       U. S. Const, amend. V; see also Ga. Const. Art. 1, § 3, ¶1 (a) (“Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”); Horne v. Dep’t of Agric., _ U. S. _, _ (II) (A) (1) (135 SCt 2419,192 LE2d388) (2015) (“The principle reflected in the [Takings] Clause goes back at least 800 years to the Magna Carta . . . .”).

        See, e.g., Wood v. B & S Enters., 314 Ga. App. 128, 128 (723 SE2d 443) (2012).

        See Kellett v. Dep’t of Transp., 174 Ga.App. 214, 216 (3) (329 SE2d 514) (1985) (noting that in a condemnation proceeding, the jury establishes the property’s value and “[i]f it finds as fact that the condemnor underestimated the value of the land, the condemnor must pay more; if it finds as fact that the condemnor overestimated the value, the condemnee is not entitled to the proceeds of the government agency’s mistake”); OCGA § 32-3-19 (b) (“After the verdict of the jury, the court shall. . . enter judgment in favor of the condemnee and against the condemnor in the amount of such verdict, together with the accrued court costs, which judgment shall be immediately credited with the sum of money deposited by the condemnor with the declaration of taking. . . .”).

        Boston Men’s Health Ctr. v. Howard, 311 Ga. App. 217, 221 (1) (715 SE2d 704) (2011) (punctuation andemphasis omitted); accord Carrier Corp. v. Rollins, Inc., 316 Ga.App. 630, 635 (2) (730 SE2d 103) (2012).

        Evans v. Dep’t of Transp., 331 Ga. App. 313, 321 (3) (771 SE2d 20) (2015) (punctuation omitted).

        Boston Men’s Health Ctr., 311 Ga. App. at 221 (1) (punctuation omitted).

       (Emphasis supplied.)

       247 Ga. App. 763 (544 SE2d 747) (2001).

        See id. at 763.

        See id.

        See id.

        Id. at 764-65.

       253 Ga. 150 (317 SE2d 542) (1984).

        See McDonald, 247 Ga. App. at 765 (1) (a).

        Id. at 765-66 (1) (a) (punctuation omitted) (quoting Whitehead, 253 Ga. at 151-52 (1)).

        Id. at 766 (1) (a).

        Id.

        See Whitehead, 253 Ga. at 151-52 (1).

        See Lewis v. Van Anda, 282 Ga. 763, 767-68 (5) (653 SE2d 708) (2007) (holding that because trial court actually gave part of a jury charge that appellant claimed was improperly omitted and because remainder of court’s charge adequately defined one of the legal terms at issue, the court’s jury charge taken as a whole was not misleading and did not constitute reversible error); Second Cont’l, Inc. v. Atlanta E-Z Builders, Inc., 237 Ga. App. 304, 308-09 (7) (514 SE2d 846) (1999) (holding that although portion of trial court’s jury charge was inapplicable, any error in providing it was harmless in light of the fact that charge considered as a whole was not likely to confuse or mislead the jury).

        See Hancock v. Bryan Cty. Bd. of Ed., 240 Ga.App. 622, 624-25 (6) (522 SE2d 661) (1999) (holding that trial court’s jury charge did not amount to reversible error given that plaintiff failed to show she was prejudiced by inapplicable portion of trial court’s charge).