author: Mikell, Judge.

text:
    A11A1178.
    ODION v. VARON et al.
    (718 SE2d 23)
   Mikell, Judge.

This is one of multiple actions filed by Gege Odion claiming that Sabi Varón (“Sabi”) and entities controlled by him, Highland Financial Capital Group, LLC (“Highland”) and Candler Point, LLC (“CPL”), usurped Odion’s business opportunity to purchase property known as 2855 Candler Road, Decatur (the “2855 Property”) and purchased the property themselves. At issue in this appeal is the pro se action filed by Odion on May 13, 2010, and amended on July 6, 2010. Count 1 of the amended complaint alleges that Sabi, Highland, and CPL violated the Brokerage Relationships in Real Estate Transactions Act (BRRETA); Count 2 asserts civil Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act violations; Count 3 alleges breach of trust; and Count 4 seeks an accounting. Odion’s amended complaint purported to add numerous defendants without obtaining leave of court, and Counts 2-4 were brought against all defendants. The trial court dismissed all claims against all defendants, and Odion appeals, contending that the court committed a variety of errors. We affirm.

1. The trial court dismissed all counts against CPL on the ground that they were filed in violation of an automatic bankruptcy stay provided by 11 USC § 362. Odion enumerates this ruling as error in his first enumeration. Applying the de novo standard of review, we affirm.

The record shows that when the original complaint was filed on May 13, 2010, CPL was a debtor in bankruptcy, having filed a Chapter 11 petition on January 5, 2010. In general, actions filed in violation of a federal bankruptcy stay are considered void ab initio in Georgia. Odion argues that because CPL’s bankruptcy petition was dismissed on June 28, 2010, and CPL had not yet been served with process, there was no pending action against it at the time the automatic stay was in effect, so the trial court erred in ruling that the complaint as to CPL was void. This argument fails. Although an action is not a “pending” suit until after service of process is perfected, once service is accomplished, it relates back to the date of filing, and the date of filing establishes the date the action is commenced. Thus, the action against CPL was commenced on May 13, 2010, and the automatic stay was in effect at that time, rendering the claims against CPL void ab initio.

Odion further contends that the automatic stay does not bar his claims against CPL because CPL did not list him as a creditor and because he did not otherwise have notice of the bankruptcy petition. These arguments fail as well, because the automatic stay is effective whether or not a party has actual notice of a bankruptcy case. Odion has not cited any exception applicable hereto. Accordingly, the trial court did not err in dismissing the claims against CPL.

2. Odion’s second enumeration is that the trial court erred in dismissing the claims against Sabi, Highland and BB&T pursuant to the “prior action pending doctrine,” OCGA § 9-2-5 (a). Again, we disagree. OCGA § 9-2-5 (a) provides:

No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.

OCGA § 9-2-44 (a), in turn, provides in relevant part that “the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement.” These Code sections have been construed together to mean that when two civil actions involving the same cause of action and the same parties remain pending but are filed at different times, the later-filed action is abated and must be dismissed. That is precisely what occurred in the case at bar.

The complaint at issue was filed in DeKalb County Superior Court. Odion previously filed a similar action in the same court that was transferred to Fulton County Superior Court in July 2008, which action was consolidated with yet another case filed by Odion in Fulton County against Sabi and Highland. Odion filed a fourth amended complaint in the consolidated case on April 30, 2010, two weeks before filing the instant action. In the fourth amended complaint, Odion alleges claims of breach of fiduciary duty, breach of contract by improperly using confidential information, broker malpractice, fraud, and conspiracy. These claims are similar to the BRRETA, RICO, and breach of trust claims in the instant complaint, all of which arise out of the same transaction; namely, the sale of the 2855 Property to Highshore and Candler Medical Center. Moreover, the same facts are pled in the two actions. Dismissal of Sabi, Highland, and BB&T from the current action was thus mandatory and was consistent with “the purpose of the prior action pending doctrine[, which] is to ensure judicial economy, to avoid inconsistent judgments, and to prevent harassment of the parties through multiple proceedings.”

3. Odion asserts in his third enumeration that the trial court erred in dismissing the Gil Varón defendants, the Stites defendants, the Weibel defendants, English, CEC, and Silvermintz (hereinafter, the “remaining defendants”) on the ground that Odion failed to seek leave of court before adding them to his amended complaint. There was no error. OCGA § 9-11-15 (a) allows a party to amend his pleading as a matter of right at any time before the entry of a pretrial order. However, OCGA § 9-11-21 allows the addition of parties only by order of the court upon motion filed by a party. Thus, “[i]n order for an additional party to be added to an existing suit by amendment pursuant to OCGA § 9-11-15, leave of court must first be sought and obtained pursuant to OCGA § 9-11-21.” Since no such motion or leave of court was granted in this case, the trial court properly dismissed these defendants.

4. Odion’s fourth enumeration is that the trial court erred in dismissing the counts of his amended complaint against the remaining defendants for failure to state a claim upon which relief can be granted pursuant to OCGA § 9-11-12 (b) (6).

Since, h owe ver, as held in Division 3, these defendants and the claims against them were not properly before the court, this issue has been rendered moot.

5. In his fifth and eleventh enumerated errors, Odion argues that the trial court erred in granting CEC’s motion to dismiss or, alternatively, for summary judgment. We disagree.

The trial court granted CEC’s motion due to Odion’s failure to attach an expert affidavit to his complaint. OCGA § 9-11-9.1 (a) provides:

In any action for damages alleging professional malpractice against: (1) A professional licensed by the State of Georgia and listed in subsection (g) of this Code section; . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

Professional engineers are listed under subsection (g). “An action alleges professional malpractice when it calls into question the conduct of a professional in his area of expertise.”

CEC’s motion filed in the trial court was a motion to dismiss or, alternatively, for summary judgment. An affidavit was attached to the motion, and it is apparent from the record that the trial court considered the affidavit in ruling on the motion. Because evidence outside the pleadings was considered, the motion was “required to be treated as one for summary judgment (OCGA § 9-11-12 (b)).”

Upon motion for summary judgment, it is the movant’s burden to show that no jury question remains and that the movant is entitled to judgment as a matter of law. The movant may discharge such burden by reference to affidavits, depositions, and other documentary evidence in support of the nonmovant’s case. After the movant discharges this burden, the nonmovant cannot rest on the pleadings, but instead must come forward with evidence giving rise to a triable issue.

Decided September 29, 2011

Reconsideration denied October 27, 2011

Gege Odion, pro se.

Beloin, Brown, Blum & Wise, James P. Blum, Jr., Parker, Hudson, Rainer & Dobbs, Nancy H. Baughan, Andrea P. Block, Wasson, Sours & Harris, W. Hensell Harris, Jr., Kristen M. Recten-wald, Stites & Harbison, Robert D. Douglass, Wilson, Morton & Downs, Keri P. Ware, for appellees.

Because the unrebutted evidence showed that Odion’s claims sounded in professional negligence rather than ordinary negligence, and Odion failed to file contemporaneously with his complaint the expert affidavit required by OCGA § 9-11-9.1 (a), there was no error in the trial court’s grant of CEC’s motion.

6. Odion’s sixth enumeration, that the trial court erred in not entering default judgment against Christopher English, is also without merit because English was never added as a party to the action, and, therefore, no judgment could be entered against him.

7. The ground argued in Odion’s seventh enumeration is rendered moot by our previous rulings.

8. We have considered Odion’s eighth, ninth, and tenth enumerations dealing with alleged procedural irregularities in the court’s conduct of the hearing on the motions below, and we find them without merit.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       We have considered the appellees’ motion to dismiss this appeal because of the late filing of Odion’s brief, and it is hereby denied.

       OCGA § 10-6A-1 et seq.

       OCGA § 16-14-1 et seq.

         The additional parties named in the amended complaint are: Candler Medical Center, LLC; Gil Chaim Varon, Highshore Medical Center, LLC, Law Office of Gil Varón, LLC, and Gil Varon, LLC (collectively, “the Gil Varon defendants”); T. Matthew Mashburn, Stites & Harbison, PLC (“the Stites defendants”); Clay Weibel, Weibel & Associates, Inc. (“the Weibel defendants”); Branch Banking and Trust Company (“BB&T”) and its loan officer, Sharon Silvermintz; Christopher English; and Consulting Enterprises Corporation (“CEC”).

        Nat. Bldg. Maintenance Specialists v. Hayes, 288 Ga. App. 25 (653 SE2d 772) (2007).

         McKeen v. Fed. Deposit Ins. Corp., 274 Ga. 46, 48 (549 SE2d 104) (2001); Jennings Enterprises v. Carte, 224 Ga. App. 538, 540 (1) (481 SE2d 541) (1997).

        Franek v. Ray, 239 Ga. 282, 285-286 (236 SE2d 629) (1977); accorá Jenkins v. Crea, 289 Ga. App. 174, 175 (656 SE2d 849) (2008); OCGA § 9-11-3 (a): “A civil action is commenced by filing a complaint with the court.”

       See 11 USC § 362 (a) (1), precluding “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor.”

        McKeen, supra at 49.

       Cf. West v. Men's Focus Health Centers of Ga., 251 Ga. App. 202, 203 (553 SE2d 379) (2001).

        Sadi Holdings, LLC v. Lib Properties, Ltd., 293 Ga. App. 23, 24 (1) (666 SE2d 446) (2008). Accord BBC Land & Dev. v. Bank of North Ga., 294 Ga. App. 759, 760 (1) (670 SE2d 210) (2008).

       This complaint reflects BB&T as a defendant.

       (Footnote omitted.) Jenkins, supra at 176. Compare Cheely v. State of Ga., 251 Ga. 685, 687 (3) (309 SE2d 128) (1983) (abatement not warranted where two bond validation proceedings did not arise out of the same transaction).

        Riding v. Ellis, 297 Ga. App. 740, 742-743 (1) (678 SE2d 178) (2009).

       (Footnote omitted; emphasis in original.) Valdosta Hotel Properties v. White, 278 Ga. App. 206, 209 (1) (628 SE2d 642) (2006).

        Clover Realty Co. v. Todd, 237 Ga. 821, 822 (229 SE2d 649) (1976); Slater v. Brigadier Homes, 198 Ga. App. 67-68 (400 SE2d 338) (1990).

       OCGA § 9-11-9.1 (g) (21).

       (Citation, punctuation and footnote omitted.) Goodin v. Gwinnett Health System, 273 Ga. App. 461, 462 (2) (615 SE2d 129) (2005).

       (Citation, punctuation and footnote omitted.) Alexander v. Hulsey Environmental Svcs., 306 Ga. App. 459, 460 (1) (702 SE2d 435) (2010).

       OCGA § 9-11-56 (c).

       OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Wellstar Health System v. Painter, 288 Ga. App. 659, 663 (655 SE2d 251) (2007).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A1392.
    ALBERTSON et al. v. CITY OF JESUP.
    (718 SE2d 4)
   Dillard, Judge.

Ronald D. Albertson, individually and on behalf of his minor daughter, Linsey Albertson (collectively “Albertson”), appeals the trial court’s grant of summary judgment to the City of Jesup (“the City”). Albertson argues that the trial court erred in granting summary judgment against his claims that the City was negligent in its placement and maintenance of a stop-sign, which also constituted a nuisance. Specifically, he contends that this resulted in his failure to see the sign and to stop, which led to a subsequent collision with another vehicle. For the reasons noted infra, we affirm the trial court’s grant of summary judgment to the City.

Viewed in the light most favorable to Albertson, the record shows that he and his daughter were driving through Jesup on their way home in his pickup truck on the afternoon of July 25, 2004. They traveled westbound through a residential area on Bay Street and eventually reached its intersection with Fourth Street. Despite the undisputed presence of a stop-sign, Albertson did not see the sign and, thus, neither slowed nor stopped his vehicle prior to entering the intersection at 25-30 miles per hour. Consequently, a vehicle passing through in a southbound direction collided with Albertson’s truck, resulting in injuries to both Albertson and his daughter and totaling his truck.

Albertson became aware of the stop-sign only after the collision, when he noticed that it was obscured by foliage and placed an estimated ten-feet from the roadside in what he described as a concrete “bucket.” Thereafter, Albertson filed a complaint, in which he alleged that the City “failed to maintain the foliage . . . , negligently failed to place the stop sign ... in a location which would render the stop sign visible to persons operating a vehicle . . . , and failed to provide a clear line of sight for vehicles traveling on [the street].” The City subsequently filed two motions for summary judgment as to Albertson’s claims for negligence and a nuisance. The trial court granted the motions, finding that (1) as to the negligence claim, Albertson’s case was one for professional negligence and he lacked the expert testimony that would be necessary at trial to establish same, and (2) as to the nuisance claim, Albertson could not show that the City had the required notice of a defect at the intersection. This appeal by Albertson follows.

At the outset, we note that summary judgment is appropriate when “the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” This burden is met by a defendant when the court is shown “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [the] plaintiff s case.” And if the moving party meets this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.” With these guiding principles in mind, we turn now to Albertson’s enumerations of error.

1. Negligence. Albertson first argues that the trial court erred in holding sua sponte that his claim was one for professional negligence, requiring expert testimony. Instead, Albertson contends that the placement of the stop-sign and the maintenance of the surrounding foliage are questions of simple negligence and, accordingly, that the grant of summary judgment was improper. Though for different reasons, we affirm the trial court’s grant of summary judgment.

The trial court disposed of Albertson’s negligence claim by holding that it was one for professional negligence and that Albert-son lacked the requisite expert testimony to create a genuine issue of material fact on this issue. And although there may be some merit to the trial court’s holding, we note that the City argued in its motion for summary judgment that it was entitled to sovereign immunity on Albertson’s negligence claim, and sovereign immunity is a threshold issue that the trial court was required to address before reaching the merits of any other argument.

On appeal, the City again argues, inter alia, that it is entitled to sovereign immunity on Albertson’s negligence claim; and Albertson has made no attempt to address or in any way rebut this argument, even though he had the burden of doing so as the party who would benefit from any waiver of sovereign immunity. Thus, Albertson has failed to show that the City waived sovereign immunity in this case, and dismissal was proper. Indeed, under Georgia law, “[mjunicipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers.” And it is well established that the maintenance of a stop-sign is a governmental function for which a municipality has sovereign immunity against claims of negligence.

Here, Albertson claimed that the City was negligent in its maintenance of the foliage surrounding the stop-sign and in its failure to replace the sign to its permanent location after it appeared to have been moved, leading to an obstructed view and his failure to see the sign on the afternoon in question. It is, however, well established in our case law that the City has not waived sovereign immunity as to these allegations. And because “it is the obstruction of the [stop-sign], and not obstruction of the sight of oncoming traffic, which [Albertson] contend[s] caused [him] to advance and collide,” sovereign immunity bars his recovery “for even negligent exercise of this governmental function.” Accordingly, the grant of summary judgment was appropriate.

2. Nuisance. Albertson next argues that the trial court erred in holding that there was no evidence that the City had knowledge of any defect in the maintenance of the stop-sign in question and, accordingly, that the grant of summary judgment was improper. We disagree.

First, we note that Albertson failed to cite any supporting authority for this enumeration of error in his brief, as is required by the rules of this Court. Nevertheless, we agree with the trial court that the City was entitled to summary judgment on this claim as well. Indeed, even viewed in the light most favorable to Albertson, there is a decided lack of evidence that the City was aware of any defect at the subject intersection.

And in order to hold the City liable for maintaining a nuisance, Albertson must show the following:

(1) the alleged defect or degree of misfeasance must exceed mere negligence; (2) the act must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and (3) the municipality must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.

But here, Albertson’s sole evidence that the City was aware of a problem regarding the visibility of the subject stop-sign came from narratives contained within police reports for two previous accidents at the intersection. However, when Albertson questioned the then-city manager regarding the prior accidents, he testified that he was unaware of any complaints regarding foliage; that other than the police reports introduced into evidence, he knew of no other accidents that would call the visibility of the stop-sign at the intersection into question; and that he passed through the same intersection multiple times each week without incident. And while Albertson argues that the police reports prove that the City was on notice as to problems with the visibility of the subject stop-sign, these reports were inadmissible hearsay. Thus, Albertson failed to establish this necessary element to prove that the City maintained a nuisance.

Decided September 8, 2011

Reconsideration denied October 27, 2011

Jones, Osteen & Jones, Billy N. Jones, Carl R. Varnedoe, for appellants.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, Laura E. Roberts, for appellee.

Accordingly, for all the foregoing reasons, we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See Harmon v. Innomed Techs., Inc., 309 Ga. App. 265, 265 (709 SE2d 888) (2011) (“We review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.” (footnote omitted)).

       It is undisputed that Albertson was neither on the phone nor under the influence of alcohol or illegal drugs at the time of the accident.

       Albertson later testified and stipulated that despite his failure to observe the sign on the day in question, it is visible at some point prior to reaching the intersection. Additionally, a retired state patrolman who investigated the accident and testified on Albertson’s behalf noted in his investigatory summary that in traveling down the street as Albertson had, “one would almost have to know that a regulatory sign is positioned on Bay Street at the intersection.”

        Thompson v. City of Fitzgerald, 248 Ga. App. 725, 725 (548 SE2d 368) (2001) (footnote omitted).

        Id. at 725-26 (footnote and punctuation omitted).

         Id. at 726 (footnote omitted).

        See Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 77 (1) (585 SE2d 1.38) (2003) (“Summary judgment may be affirmed if it is right for any reason.” (footnote omitted)).

        See Johnson v. Dep’t of Transp., 245 Ga. App. 839, 839 (538 SE2d 879) (2000) (“With respect to alleged defects in maintenance of the roadway, I the plaintiffs] were required to present evidence of the proper maintenance standard, the deviation from that standard, and the causal connection between the deviation and the collision.” (citation omitted)); Dep’t of Transp. v. Mikell, 229 Ga. App. 54, 58 (1) (a), 59 (1) (c) (493 SE2d 219) (1997) (holding that expert testimony was required to establish a breach of the standard of care related to stop-sign placement and that, although expert testimony was unnecessary, plaintiff needed to establish a standard of care as to the proper maintenance of surrounding foliage to prove negligence).

        See generally Dep’t of Transp. v. Dupree, 256 Ga. App. 668, 670-76 (1) (a)-(c) (570 SE2d 1) (2002) (explaining that the plaintiffs burden to establish a waiver of sovereign immunity is a threshold issue, which determines whether a trial court has subject matter jurisdiction over a case).

        See, e.g., Naraine v. City of Atlanta, 306 Ga. App. 561, 562 (1) (a) (703 SE2d 31) (2010) (“Inasmuch as [the plaintiff] was seeking to benefit from the waiver of sovereign immunity, she had the burden of proof.” (citation omitted)). Cf. Norris v. Emanuel County, 254 Ga. App. 114, 116 (1) (561 SE2d 240) (2002) (“Because the defendants did not raise the issue of sovereign immunity in their motion for summary judgment, I the plaintiff] was not required to rebut this issue.” (footnote omitted)). Nothing in the record indicates that the City had in place an insurance policy that would waive sovereign immunity. See OCGA § 36-33-1 (a) (“A municipal corporation shall not waive its immunity by the purchase of liability insurance . . . unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy.”). Compare Brockman v. Burnette, 184 Ga. App. 66, 67 (360 SE2d 655) (1987) (reversing grant of summary judgment on claim of sovereign immunity under similar underlying factual circumstances when it was “undisputed that at the time of the accident the city was insured under a general liability insurance policy”), with Cyr v. Mayor & Aldermen of Savannah, 188 Ga. App. 261, 261 (372 SE2d 659) (1988) (upholding grant of summary judgment on claim of sovereign immunity under similar underlying factual circumstances when “[t]he appellants I did | not contend that the city had in force any policy of liability insurance which would cover their injuries” (citation omitted)).

       OCGA § 36-33-1 (b); see also OCGA § 36-33-2 (“Where municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the act.”).

        See, e.g., Cyr, 188 Ga. App. at 261 (“The operation and maintenance of traffic lights and other traffic control devices is a governmental function conducted on behalf of the public safety and for the negligent performance of which municipal corporations are not liable.” (citation and punctuation omitted)); Bowen v. Little, 139 Ga. App. 176, 176 (228 SE2d 159) (1976) (noting that the failure to maintain a stop sign has been held not actionable under a theory of negligence); Arthur v. City of Albany, 98 Ga. App. 746, 747-48 (2) (106 SE2d 347) (1958) (explaining that the decision of whether to erect a stop sign is a legislative and judicial function, and that “determining whether to maintain the stop sign . . . and . . . whether to replace it once it has been destroyed or removed” are also exercises of a legislative and judicial function); see also Christensen v. Floyd County, 158 Ga. App. 274, 274 (2) (279 SE2d 723) (1981); Barnett v. City of Albany, 149 Ga. App. 331, 332 (2) (254 SE2d 481) (1979).

        See Cyr, 188 Ga. App. at 261 (sovereign immunity barred plaintiffs’ claim that a stop-sign was “totally obscured by vegetation, foliage and large trees”); Barnett, 149 Ga. App. at 332 (2) (plaintiffs claim that stop-sign was obscured by fallen tree was precluded by sovereign immunity); Arthur, 98 Ga. App. at 747-48 (city immune from plaintiffs claim that it failed to replace stop sign that was taken down).

        Cyr, 188 Ga. App. at 262 (Beasley, J., concurring specially); see also supra note 13. Compare OCGA § 32-4-91 (a) (“A municipality shall plan, designate, improve, manage, control, construct, and maintain an adequate municipal street system!.]”); OCGA § 32-4-93 (a) (“A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.”).

        See Ct. App. R. 25 (a) (3).

       The City would not be entitled to sovereign immunity on Albertson’s claim of nuisance. See Bowen, 139 Ga. App. at 177 (“[WJhere the city elects to erect a stop sign at an intersection to regulate traffic but then allows it to become obscured by foliage, the defective maintenance may itself become a nuisance.”).

        Shuman v. Mayor & Aldermen of Savannah, 180 Ga. App. 427, 427-28 (349 SE2d 239) (1986); see also City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979).

        See Brown v. State, 274 Ga. 31, 33 (1) (549 SE2d 107) (2001) (“[NJarratives contained in police reports generated in connection with police investigations are not the appropriate subject of an exception to the hearsay rule.” (footnote omitted)); Scott v. LaRosa & LaRosa, Inc., 253 Ga. App. 489, 490 (559 SE2d 525) (2002) (same); see also Matthews v. Wilson, 119 Ga. App. 708, 711 (168 SE2d 864) (1969) (“[Ajdmissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would be inadmissible on motion for summary judgment.” (citation omitted)).

        Compare Thompson v. City of Atlanta, 274 Ga. App. 1, 4 (1) (616 SE2d 219) (2005) (holding that plaintiff failed to establish notice when city “submitted evidence that it had not received notice of street defects in the area of the intersection, and the only complaint the city received concerning drainage problems near the intersection occurred . . . nearly three years before the incident here”), with Carter v. Mayor & Aldermen of City of Savannah, 200 Ga. App. 263, 265 (1) (407 SE2d 421) (1991) (physical precedent only) (“[Ejvidence was presented that the City had a recurring problem with vandals removing signs from the City streets and that this problem was especially acute in Savannah because the soil is so loose and sandy, thereby allowing signs to be easily uprooted.”).


author: Ellington, Chief Judge.

text:
    A11A1179.
    ABLE v. THE STATE.
    (718 SE2d 96)
   Ellington, Chief Judge.

A Hall County jury found Marvin Able guilty beyond a reasonable doubt of possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1), and possession of marijuana, OCGA § 16-13-30 (j) (1). Following the denial of his motion for new trial, Able appeals, contending that the evidence was insufficient to support his conviction for possession with intent to distribute, that the trial court erred in charging the jury, and that he received ineffective assistance of counsel. Because we find harmful errors in the trial court’s jury charge, we reverse Abie’s convictions. However, because the evidence was sufficient to support Abie’s convictions, he may be retried.

1. Able argues that there was insufficient evidence to support his conviction for possession of marijuana with intent to distribute.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

In the early afternoon of June 17, 2007, Safiya Cathey, Abie’s girlfriend of about two months, drove to Abie’s Sandy Springs home in her Jeep Liberty. At the time, Abie’s long-time friend, Itaka Howell, had been staying at Abie’s house and sleeping on the sofa since being evicted from his apartment about two and a half months earlier. Cathey, Able and Howell relaxed at Abie’s house for about 45 minutes, during which time Cathey and Able smoked some marijuana that Cathey had brought with her. Able then told Cathey that he wanted to do a favor for Howell and asked her if they could borrow her car. Because it was her birthday and she did not want to spend time at Abie’s house alone, and because she thought that the errand would not take long, Cathey insisted on going with the men, even though she did not know where they were going or why. As they left Abie’s house, Cathey saw that Howell was carrying an insulated “icy-hot” bag. Howell put the bag in the rear storage compartment of the car and sat in the back seat; Able drove the car and Cathey sat in the front passenger seat, where she slept during most of the trip. It is undisputed that, during the time that the insulated bag was in the rear storage compartment of Cathey’s car, the bag was sealed shut.

Able drove to a parking lot in front of a Publix grocery store near an exit off of highway 1-985 in Hall County. After Able parked the car, Howell got out of the back seat, carrying the insulated bag, and walked behind the car toward an adjacent McDonald’s. Two police officers suddenly intercepted Howell, however, and they ordered him to drop the bag, show his hands and lie on the ground before handcuffing and arresting him. At trial, the State showed that inside the insulated bag were five gallon-size ziplock bags containing marijuana; the total weight of the marijuana was approximately five pounds.

After Howell was secured, police officers surrounded Cathey’s car and ordered Able and Cathey to show their hands and get out. One of the officers testified at trial that, when he approached Cathey’s car, he smelled the odor of marijuana; however, another officer at the scene at the same time testified that he did not smell marijuana while standing next to the driver’s side door of Cathey’s car. Cathey testified at trial that, before the officers approached her car, she did not know what was in Howell’s insulated bag and that she did not smell the odor of marijuana in her car during the trip to Hall County.

While questioning Cathey at the scene, an officer asked her if he could search her car, and she consented. During the search, the officer found no paperwork or phone numbers that appeared to be related to drug sale activities, nor did he find a large amount of cash. Inside Cathey’s purse, however, the officer found a marijuana “joint” and some “roaches,” rolling papers, flavor drops to change the taste of marijuana, and some business cards. Able and Cathey were arrested and charged, along with Howell, with possession of marijuana with intent to distribute and possession of marijuana.

At Abie’s trial, the State showed that the officers’ apprehension of Howell was the result of a controlled drug buy utilizing a confidential informant (“C. I.”) who had previously purchased drugs from Howell. The State presented no evidence to show that the C. I. had ever communicated with, met or conducted drug deals with either Able or Cathey. Further, according to an officer who worked with the C. L, each time Howell previously met with the C. I. to conduct a drug deal at that Hall County location, Howell had arrived in a different vehicle; it is undisputed that Howell did not own a car. In fact, the officer admitted that the controlled drug buy on June 17 was briefly delayed because Howell was having trouble finding transportation to the Hall County location.

In contending that the evidence was insufficient to support his conviction for possession of marijuana with intent to distribute, Able argues that the State failed to present any evidence that Howell told him that he planned to sell drugs in Hall County before or during the trip, that he had any other reason to know about Howell’s plan, or that he knew or had any reason to inquire about what was in Howell’s insulated bag. He argues that, as a result, the State failed to meet its burden of proving beyond a reasonable doubt that he intentionally worked with or assisted Howell in the possession and attempted sale of the marijuana.

The intention with which an act is done is peculiarly for the jury. It is often difficult to prove with direct evidence an individual’s intent as it existed at the time of the act for which they are being prosecuted. Therefore, it is often necessary to prove such intent through the use of circumstantial evidence. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. A jury may infer that a person acted with criminal intent after considering the “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.

(Citations and punctuation omitted; emphasis in original.) Eberhart v. State, 241 Ga. App. 164, 165 (1) (526 SE2d 361) (1999). See also Wood v. State, 300 Ga. App. 674, 676 (686 SE2d 319) (2009) (“[C]riminal intent may be inferred from presence, companionship, and conduct before, during and after the offense.”) (citation and punctuation omitted).

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that there was sufficient evidence from which the jury could find that Able had the requisite knowledge and intent to assist with or participate in the crime and that he was, therefore, guilty beyond a reasonable doubt of possession of marijuana with intent to distribute.

2. Able contends that the trial court committed harmful error when it misstated the law in its jury instructions on “mere association” and “mere presence” and when it failed to correct the errors after Abie’s counsel objected to the instructions following the jury charge. Because we find that the court’s instructions on “mere association” and “mere presence” were not only significant misstatements of the law, but that the instructions also directly conflicted with other closely related instructions given by the trial court, we find that the court’s jury charge constituted harmful error and that, consequently, Abie’s convictions must be reversed.

The court gave the jury the following instructions on “mere association” and “mere presence”:

A jury is not authorized to find a person who was merely associated with other persons involved in the commission of a crime guilty of the commission of the crime, or guilty of consent to the commission of the crime, or guilty of concurrence in the commission of the crime, or guilty as a party to a crime unless the evidence presented by the State of Georgia proves beyond a reasonable doubt that such person committed the crime, or consented to the commission of the crime, or concurred in the commission of the crime, or was a party to the crime.
A jury is not authorized to find a person who was merely present at the scene of the commission of a crime at the time of its perpetration guilty of the commission of the crime or guilty of consent to the commission of the crime or guilty of concurrence in the commission of the crime or guilty as a party to the crime unless the evidence presented by the State of Georgia proves beyond a reasonable doubt that such person committed the crime or consented to the commission of the crime or concurred in the commission of the crime or was a party to the crime.

(Emphasis supplied.)

Following the jury charge, Abie’s counsel objected to the language that is emphasized above, arguing that the charges as given improperly instructed the jury that it could find Able guilty of the crimes charged if he either consented to or concurred in the commission of the crime, even if he did not intentionally commit, assist or otherwise participate in the crimes. As counsel pointed out, the charges as given were not only misstatements of the law, but they also directly conflicted with other related jury instructions given by the court. The trial court overruled counsel’s objection, finding that the charges as given were appropriate.

“All charging errors are presumed to be prejudicial unless the record shows them to be harmless.” (Punctuation and footnote omitted.) Williamson v. State, 300 Ga. App. at 550 (6). See also Baird v. State, 260 Ga. App. 661, 663-664 (1) (580 SE2d 650) (2003) (“Error in a jury charge is harmless where there is no reasonable probability that it misled the jury or permitted a defendant’s conviction on an erroneous theory.”) (punctuation and footnote omitted). Viewing the trial court’s charge as a whole, we conclude that there is a reasonable probability that the erroneous charges may have misled or confused the jury regarding what the State was required to prove, because the charges misinformed the jury that it would be authorized to convict Able even if it found that he only consented to or concurred in the commission of the crimes, as opposed to intentionally assisting or participating in them. Id.

Here, even though there was sufficient evidence for the jury to find that Able had actual or constructive knowledge about the presence of the marijuana in the car or about Howell’s plans and that he intended to participate in the crimes or to assist Howell in committing them by driving him to Hall County, the evidence was not overwhelming. Instead, the evidence also supported alternate findings, including a finding that, even though Able did not intentionally participate in the crime or directly assist Howell, he nonetheless consented to or concurred in the commission of the crime. In the latter situation, however, the jury would not have been authorized to convict Able as a party to the crimes, despite the court’s erroneous statement to the contrary. Therefore, because the jury may have convicted Able based on an erroneous legal theory, we conclude that the trial court’s error in giving the challenged instructions was not harmless. Williamson v. State, 300 Ga. App. at 550 (6).

Moreover, the fact that the trial court subsequently gave correct jury instructions on knowledge, intent and party to a crime, as shown above, did not render the errors harmless, because there was a clear conflict between the erroneous instructions on “mere association” and “mere presence” and the correct, related instructions. Where two or more jury instructions directly conflict with one another, a new trial is required. Flexible Products Co. v. Ervast, 284 Ga. App. 178, 180 (1) (643 SE2d 560) (2007).

A charge containing two distinct propositions conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that it can not render an intelligible verdict, and requires the grant of a new trial. The jury cannot be expected to select one part of a charge to the exclusion of another, nor to decide between conflicts in the charge or determine whether one part cures a previous error, without having its attention specially called thereto and being instructed accordingly.

(Citations and punctuation omitted.) Id. See also Bryant v. State, 191 Ga. 686, 719-720 (13) (13 SE2d 820) (1941) (reversing the defendant’s conviction because the trial court gave two conflicting jury instructions); Cameron v. State, 123 Ga. App. 282, 283 (1) (180 SE2d 554) (1971) (accord).

Accordingly, the trial court’s judgment of conviction must be reversed.

3. Able also argues that the trial court erred in charging the jury on “deliberate ignorance,” contending that the charge (a) was not supported by the facts, and (b) was a misstatement of the law. This Court has repeatedly recognized that

the knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance of criminal activity. The deliberate ignorance instruction is based on the alternative to the actual knowledge requirement at common law that if a party has his suspicions aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. A deliberate ignorance instruction is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution. A court should not instruct a jury on deliberate ignorance when the evidence points to actual knowledge or no knowledge on the defendant’s part.

(Punctuation and footnotes omitted.) Williamson v. State, 300 Ga. App. at 548-549 (6). See also Aguilera v. State, 293 Ga. App. 523, 525 (1) (667 SE2d 378) (2008) (accord); Maddox v. State, 272 Ga. App. 440, 445 (4) (612 SE2d 484) (2005) (accord); Perez-Castillo v. State, 257 Ga. App. 633, 634-635 (572 SE2d 657) (2002) (accord).

The record in this case shows that the State requested the same “deliberate ignorance” jury instruction that was at issue in Perez-Castillo v. State, 257 Ga. App. at 635. During the chargp conference, Abie’s counsel objected to the instruction on the basis that it was not supported by the facts in evidence. The court overruled the objection.

At some point between the charge conference and its jury charge, the trial court, apparently sua sponte, changed the language of the requested “deliberate ignorance” instruction so that it referred to “intent” not once, but twice. The court then instructed the jury, in relevant part, as follows:

The elements] of knowledge and intent may be satisfied by inferences drawn from proof beyond a reasonable doubt that a defendant deliberately closed his eyes to what would otherwise have been obvious to the defendant. A finding by evidence beyond a reasonable doubt of the defendant’s conscious purpose to avoid enlightenment would permit the jury to make an inference of knowledge and intent. Stated another way, a defendant’s knowledge of a fact may be inferred from willful and intentional blindness to the existence of the fact. Again, whether or not the jury draws any such inference is a matter solely within the discretion of the jury.

(Emphasis supplied.) Following the jury charge, Abie’s counsel again objected to the charge on the basis that it was not supported by evidence.

Subsequently, in his motion for new trial, Able asserted that the “deliberate ignorance” charge as given by the trial court constituted harmful error, citing Williamson, supra, which this Court had decided a few months after Abie’s trial. In denying Abie’s motion for new trial, the trial court ruled that the instruction as given was correct and was supported by the evidence.

(a) Having reviewed the evidence presented, we agree with the trial court’s finding that there was some evidence to support a jury instruction on “deliberate ignorance.” See Polite v. State, 273 Ga. App. 235, 242 (8) (614 SE2d 849) (2005) (“To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge.”) (citation and punctuation omitted).

(b) The “deliberate ignorance” instruction given by the trial court, however, was a misstatement of the law. In Williamson v. State, the appellant claimed that the trial court erred by charging the jury, over objection, on “deliberate ignorance.” 300 Ga. App. at 548 (6). In that case, the court charged the jury as follows:

Ladies and gentlemen, I charge you that the elements of knowledge or intent may be satisfied by inferences drawn from proof that a Defendant deliberately closed his or her eyes to what would otherwise have been obvious to him or her. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a Defendant’s knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw any such inference is a matter solely within your discretion.

(Punctuation omitted; emphasis supplied.) Id. This Court concluded that the trial court erred in giving the “deliberate ignorance” instruction because the evidence presented did not support it. Id. at 549 (6).

More importantly as to the instant case, however, this Court also ruled that the instruction as given was an erroneous statement of the law. Williamson v. State, 300 Ga. App. at 549 (6).

The court charged that intent is an essential element of any crime and must be proved by the [S]tate beyond a reasonable doubt. Yet the deliberate ignorance charge instructed the jury that the element of intent could be satisfied by inferences drawn from proof that [the appellant] deliberately closed his eyes to what would otherwise have been obvious to him. The deliberate ignorance instruction, when appropriate, provides another way to satisfy the knowledge element of a criminal offense, not the intent element. All charging errors are presumed to be prejudicial unless the record shows them to be harmless. Viewing the trial court’s charge as a whole, as we must, we conclude that the charge may have misled or confused the jury regarding what the [S]tate was required to prove[.]

Decided October 27, 2011.

Charles E. W. Barrow, for appellant.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

(Punctuation and footnotes omitted; emphasis supplied.) Id. at 549-550 (6). In so ruling, this Court implicitly overruled this Court’s opinion in Maddox v. State, 272 Ga. App. at 446 (4) (b), to the extent that this Court stated, in dicta, that a “deliberate ignorance” instruction that included the phrase “knowledge or intent” was a correct statement of law.

Because we have already ruled that Able is entitled to a new trial, it is unnecessary to decide, after considering the evidence presented and reading the trial court’s jury charge as a whole, whether the record shows that the erroneous “deliberate ignorance” instruction was harmless. Instead, we hold that, if the instruction is given during the retrial of Abie’s case, it should state as follows:

The element of knowledge may be satisfied by inferences drawn from proof that a Defendant deliberately closed his or her eyes to what would otherwise have been obvious to him or her. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a Defendant’s knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw any such inference is a matter solely within your discretion.

Judgment reversed.

Miller, P J., and Doyle, J., concur.

       Although the court denied Abie’s motion for new trial, it also ruled that Abie’s convictions should have been merged for sentencing purposes. Accordingly, the court vacated the sentence imposed on the felony possession conviction.

       See Williamson v. State, 300 Ga. App. 538, 539 (685 SE2d 784) (2009).

       On April 4, 2008, Cathey entered a negotiated guilty plea to possession of marijuana with intent to distribute and possession of marijuana. Howell absconded after his preliminary hearing and has not been tried on the charges.

         The record shows that neither party requested the language of these instructions as given by the court.

       See OCGA S 16-2-20 (a) (party to a crime); Jordan v. State, 272 Ga. 395, 396 (1) (530 SE2d 192) (2000) (“A common criminal intent must be proven to establish that one is a party to a crime.”) (citation omitted); Wood v. Stale, 300 Ga. App. at 676 (“[M]ere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crimel. I”) (citation and punctuation omitted); see also footnote 6, infra.

       Specifically, the emphasized language in the “mere association” and “mere presence” instructions conflicted with the emphasized portions of the following instructions:

        Every parly to a crime may be charged with and convicted of commission of the crime. ... A person is a party to a crime only if that person, A, directly commits the crime, or, B, intentionally helps in the commission of the crime.

      Any party to a crime who did not directly commit the crime may be charged, tried, and convicted for commission of the crime upon proof that the crime was committed and that the person was a party to it even though the person alleged to have directly committed the crime has not been prosecuted or is not amenable to justice.
      Knowledge on the part of Mr. Able that the crimes of possession of marijuana with intent to distribute and possession of marijuana were being committed and that Mr. Able knowingly and intentionally participated in or helped in the commission of such crimes must be proved by the Stale of Georgia by evidence beyond a reasonable doubt. . . .

        Mere presence at the scene of a crime, even when coupled with knowledge and approval, but not amounting to an accused directly committing the crime or intentionally helping in the commission of the crime, is not sufficient to show that an accused is a party to a crime.

      To prove that a defendant is a party to a crime, the Stale of Georgia must prove that the defendant and any other alleged perpetrator of a crime had lal common criminal intent to commit the crimes alleged.

      However, criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.
      While mere presence at the scene, of the commission of a crime, even when coupled with knowledge and approval, is not sufficient to convict an accused of being a party to a crime, presence, companionship and conduct before and after the offenses alleged are circumstances from which an accused’s criminal intent and participation in or help in the criminal act may be inferred by the jury in finding an accused to be a party to a crime.
      Whether or not you, the jury, make any inference in this case is a question for you, the jury, to decide.
      (Emphasis supplied.)

       We note that Abie’s counsel did not object to the instruction at trial on the basis that it was a misstatement of the law. However, because Able has raised an ineffective assistance of counsel claim that is based on his trial counsel’s failure to object to the court’s “deliberate ignorance” instruction on the basis that it was a misstatement of the law, and because the instruction may be challenged again on retrial, we will address this issue. Consequently, Abie’s ineffective assistance claim is moot.

       The jury instruction in Perez-Castillo v. State stated as follows:
      The element of knowledge, intent, may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant’s knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw any such inference is a matter solely within your discretion.
      (Emphasis supplied.) 257 Ga. App. at 635. In that case, the appellant argued that the instruction was improper because it obviated the State’s burden of proving that he had actual knowledge of the contents of two packages that he had accepted when they were delivered to his home. Id. The appellant apparently did not challenge the instruction on the basis of its inclusion of the word “intent.”

       There is nothing in the record to show that either the State or Abie’s counsel requested the changes to the instruction.

       According to this Court, the appellant “admitted that he knew about the drug activity in the house, but denied participating in it. This was not one of those comparatively rare cases where there are facts that point in the direction of deliberate ignorance.” (Punctuation and footnote omitted.) Williamson v. State, 300 Ga. App. at 549 (6).

       In Maddox v. State, the appellant challenged the “deliberate ignorance” instruction on the basis that there was no evidence presented to support it. 272 Ga. App. at 445 (4). There is nothing in the opinion to show that the appellant challenged the instruction as an incorrect statement ol'law based upon its inclusion of the word “intent.”


author: McFadden, Judge.

text:
    A11A1303, A11A1304.
    HARTFORD FIRE INSURANCE COMPANY v. IFREEDOM DIRECT CORPORATION; and vice versa.
    (718 SE2d 103)
   McFadden, Judge.

This case involves a claim against a mortgage lender’s bond. The claimant seeks to satisfy a previously-obtained judgment against the mortgage lender. Because the acts that gave rise to that judgment occurred before the bond was in effect and the mortgage lender’s failure to pay that judgment is not an act that authorizes recovery against the bond, we hold that the insurance company that issued the bond is entitled to summary judgment as to the bond claim.

On appeal from a grant or denial of summary judgment, this court conducts a de novo review of the evidence to determine whether there exist genuine issues of material fact and whether the undisputed facts, when viewed in favor of the nonmoving party, warrant judgment as a matter of law. Creeden v. Fuentes, 296 Ga. App. 96 (673 SE2d 611) (2009).

So viewed, the evidence shows that in November 2000, iFreedom Direct Corporation purchased a mortgage from mortgage lender Cotton State Mortgage, Inc. In 2004, after the borrower under the mortgage had failed to make payments, iFreedom sued Cotton State for, among other things, breach of contract and fraud. In 2006, Hartford Fire Insurance Company issued a $150,000 bond to Cotton State pursuant to the Georgia Residential Mortgage Act, OCGA § 7-1-1000 et seq. In 2007, iFreedom obtained a total judgment of $161,224 against Cotton State in its breach of contract action. Cotton State did not pay the award, and iFreedom then made a claim on the $150,000 bond to partially satisfy the judgment.

Hartford denied the claim because the acts which gave rise to Cotton State’s liability occurred years before the bond had been issued. Thereafter, iFreedom sued Hartford, seeking to recover against the bond and also alleging bad faith. Both parties moved for summary judgment. The trial court entered summary judgment in favor of iFreedom on the bond, finding that Cotton State’s failure to pay the judgment obtained by iFreedom violated the Act and authorized recovery against the bond. But the trial court granted summary judgment in favor of Hartford on the bad faith claim. Hartford appeals from the summary judgment ruling on the bond, and iFreedom cross-appeals from the bad faith ruling.

Case No. A11A1303

1. Hartford asserts that the trial court erred in granting summary judgment to iFreedom on its bond claim and in denying summary judgment to Hartford on that claim because, contrary to the trial court’s finding, the bond does not apply to an unpaid judgment arising from acts that occurred years before the bond’s effective date. We agree.

The Georgia Residential Mortgage Act, OCGA § 7-1-1000 et seq., requires that certain mortgage professionals, including mortgage lenders like Cotton State, post a bond in order to be licensed by the state. OCGA § 7-1-1003.2 (b) provides, in pertinent part, that the Georgia Department of Banking and Finance “shall not license or register any mortgage lender unless the applicant or registrant provides the department with a bond ... in the principal sum of $150,000.00 or such greater sum as the department may require. ...” Such a bond

shall run to the State of Georgia for the benefit of any person damaged by noncompliance of a licensee with this article, the “Georgia Residential Mortgage Act,” . . . [and] shall be conditioned upon the applicant or licensee conducting his or her licensed business in conformity with this article and all applicable laws[.]

OCGA § 7-1-1003.2 (d) (2). The Act further provides that any person “who may be damaged by noncompliance of a licensee with any condition of a bond or this [Act] may proceed on such bond against the principal or surety thereon, or both, to recover damages.” OCGA § 7-1-1003.2 (e).

The Act, in OCGA § 7-1-1013, specifically prohibits various acts by mortgage business professionals, such as misrepresenting material facts in connection with a mortgage loan, failing to disburse funds in accordance with a mortgage loan agreement and improperly refusing to issue a satisfaction of a mortgage loan. Likewise, the Act plainly sets forth numerous requirements for mortgage lenders, including rules regarding the contents, posting and transferring of licenses (OCGA § 7-1-1006); regulations governing mortgage loan disclosures (OCGA § 7-1-1014); and regulations relative to advertising (OCGA § 7-1-1016).

In this case, the trial court did not find that there had been a violation of any of those specific requirements or of the prohibited acts plainly set forth in the Act. Rather, the trial court construed OCGA § 7-1-1017 (a) (1) to “require! ] that a mortgage lender licensed under the Act pay, within 30 days of becoming final, any judgment entered against the lender arising out of. . . its mortgage business.” Accordingly, the trial court concluded that Cotton State was not in compliance with the Act because it had not paid the final judgment entered against it on iFreedom’s breach of contract claim, that iFreedom was damaged by that noncompliance and that iFreedom was thus entitled to recover on the bond.

However, contrary to the trial court’s ruling, OCGA § 7-1-1017 does not impose a requirement on mortgage lenders that they pay a final judgment within 30 days. That Code section provides, in pertinent part, that the Department of Banking and Finance may suspend or revoke a mortgage lender’s license

for a violation of any provision of this article ... , or for failure of the licensee ... to pay, within 30 days after it becomes final, a judgment recovered in any court within this state by a claimant or creditor in an action arising out of the licensee’s . . . business in this state as a . . . mortgage lender[.]

(Emphasis supplied.) OCGA § 7-1-1017 (a) (1). Likewise, other subsections of that statute further provide that the department may suspend a mortgage lender’s license for failing to pay child support or defaulting on a student loan. OCGA § 7-1-1017 (a) (2), (3).

This statute gives rights not had under the common law. Thus, it is in derogation of common law and must be strictly construed.

[I]t has always been a rule of construction of statutes that those in derogation of the common law, that is those which give rights not had under the common law, must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute. The legislature is presumed to act with knowledge of this rule of construction, and with that body only lies the right and privilege to grant rights not given under the common law and to extend and broaden any rights so granted. Such is not the function of the courts.

(Citations and punctuation omitted.) Delta Airlines v. Townsend, 279 Ga. 511, 512 (1) (614 SE2d 745) (2005). Strictly limited to the plain meaning of the language employed in the statute, OCGA § 7-1-1017 (a) (1) does not mandate that a mortgage lender pay a judgment within 30 days. Rather, it simply gives the department the discretion to suspend or revoke a mortgage lender’s license for failure to pay, within 30 days of it becoming final, a judgment arising from the mortgage lender’s business. This statutorily-created administrative remedy cannot be extended beyond its plain terms to create an additional private cause of action against a mortgage lender’s bond based on a failure to pay a judgment.

Moreover, the alternative language used in OCGA § 7-1-1017 (a) (1) — stating that the department may revoke a license for a violation of the Act or failure to pay a final judgment — clearly shows that violating the Act and failing to pay a judgment are separate and distinct matters. If the failure to pay a judgment within 30 days constituted a violation of the Act, the alternative language used in OCGA § 7-1-1017 (a) would be nothing more than meaningless surplusage. However, we must “give each part of the statute meaning and avoid constructions that make some language mere surplus-age. All parts of a statute should be harmonized and given sensible and intelligent effect, because it is not presumed that the legislature intended to enact meaningless language.” (Citations omitted.) Colonial Life &c. Ins. Co. v. Heveder, 274 Ga. App. 377, 379 (618 SE2d 39) (2005). As recounted above, the Act sets forth certain prohibited acts and affirmative requirements for mortgage lenders that, if violated, may trigger bond liability. But the legislature clearly did not intend that the separate administrative and discretionary powers of the department to suspend or revoke a license for failure to pay a judgment should also trigger such bond liability. Had the legislature intended such a result, it could have plainly stated so in the Act.

“The liability [on a bond], of course, cannot be made to extend to any acts prior to its execution, in the absence of specific covenant to that effect. [Cits.]” Armstrong v. Walton, 147 Ga. 781, 784 (1) (95 SE 714) (1918). The bond issued by Hartford does not contain a specific covenant extending liability to acts prior to its execution. The acts which gave rise to iFreedom’s breach of contract judgment against Cotton State arose before the bond was in effect, and thus are not covered by the bond. Although Cotton State’s failure to pay that judgment occurred after the bond had been issued, as explained above, that failure may subject the mortgage lender to discretionary administrative sanction by the department, but it does not create a private right of recovery against the bond. The trial court’s holding to the contrary erroneously extended Hartford’s liability under the bond by implication or interpretation. “[A] surety’s liability will not be extended by implication or interpretation.” OCGA § 10-7-3.

Because there is no genuine issue of material fact and Hartford is entitled to judgment as a matter of law, OCGA § 9-11-56, the trial court erred in granting summary judgment to iFreedom and in denying summary judgment to Hartford on the bond claim. Accordingly, those erroneous rulings are hereby reversed.

Case No. A11A1304

2. In its cross-appeal, iFreedom complains that the trial court erred in ruling that, as a matter of law, it cannot recover damages for Hartford’s bad faith denial of iFreedom’s claim on the bond. Given our holding above that Hartford is entitled to summary judgment on that bond claim, it follows that it cannot be liable on the bad faith claim. Accordingly, that summary judgment ruling of the trial court is affirmed.

Decided October 27, 2011

Bovis, Kyle & Burch, John V. Burch, Schiff Hardin, Leah Ward Sears, for appellant.

Coles Barton, Thomas M. Barton, Aaron P. Tady, for appellee.

Judgment reversed in Case No. A11A1303. Judgment affirmed in Case No. A11A1304.

Phipps, P. J., and Andrews, J., concur.


author: Smith, Presiding Judge.

text:
    A11A0944.
    VARRIANO v. THE STATE.
    (718 SE2d 14)
   Smith, Presiding Judge.

After a bench trial, Joseph Patrick Varriano was convicted of possession of oxycodone. He appeals from the judgment of conviction, asserting as his sole enumeration of error that the trial court erred in denying his motion to suppress contraband found in a consent search of the vehicle in which he was a passenger. The evidence supports the trial court’s finding that the owner of the vehicle gave consent to a search of the entire vehicle, including closed containers and packages. We therefore affirm.

We must apply three principles when reviewing a trial court’s order on a motion to suppress evidence:

First, the judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, thé reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation, punctuation and footnote omitted.) State v. Hester, 268 Ga. App. 501, 502 (602 SE2d 271) (2004). And on appeal, this court may consider testimony from the trial of the case as well as testimony presented on the motion to suppress. Postell v. State, 279 Ga. App. 275, 276 (1) (630 SE2d 867) (2006).

With these principles in mind, the evidence shows that police officers stopped a vehicle in which Varriano was the front seat passenger; a third person was in the rear seat. One of the officers asked the driver for permission to search his vehicle, and the driver consented. On further questioning, the officer specified that he asked “for consent to search the entire vehicle” and that he “asked them if they [had] any weapons or drugs in the vehicle or anything illegal.”

During the search, an officer saw “a black book bag” on the rear seat, behind the driver and next to the rear seat passenger. The bag, which was closed, had no label or identifying marks on it. Upon looking inside the bag, the officer found the contraband that is the subject of the motion to suppress. After the contraband was found, the officer asked the driver to whom the bag belonged, and both the driver and Varriano acknowledged that the bag belonged to Varriano.

Varriano contends that the driver’s permission extended only to a visual check of the interior of the vehicle and not to any closed containers or bags within the passenger compartment, including the book bag in which he had a “reasonable expectation of privacy.” For this reason, he argues that the contraband found in his book bag should be suppressed.

Varriano ⅛ argument is foreclosed by our decision in Taylor v. State, 230 Ga. App. 749 (1) (e) (498 SE2d 113) (1998). As did the appellant in Taylor, Varriano

argues that any consent by him to search the car did not authorize the officers to open the [container] in which the contraband was found. He cites State v. Corley, [201 Ga. App. 320 (411 SE2d 324) (1991) (physical precedent only)], and State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989). Both cases are distinguishable. In each, the officer asked merely for permission to “look inside” the vehicle. The court held that the extent of the consensual investigation did not extend to the seizure and examination of any items or containers in the car, which would constitute a full-blown search. In this case, as in Thomas v. State, 201 Ga. App. 292, 293 (1) (410 SE2d 786) (1991), and Garcia v. State, 207 Ga. App. 653, 656 (1) (c) (428 SE2d 666) (1993), the defendant consented to a full-blown search of his automobile. See also Gossett v. State, 199 Ga. App. 286, 287 (1) (c) (404 SE2d 595) (1991).

Id. at 751-752 (1) (e) (appellant driver “consented to a search of his vehicle for drugs”; contraband found concealed in folded napkin on floor between front seats).

In Hall v. State, 306 Ga. App. 484, 486-487 (3) (702 SE2d 483) (2010), the officer did not testify that he asked the driver about drugs before asking permission “to search the car,” id. at 485, but we concluded that the driver “had immediate control of the car and, therefore, authority to consent to a search.” (Citation and footnote omitted.) Id. at 487 (3). The scope of this general consent included containers within the vehicle, such as the closed box in the hatchback area behind the rear seat in which the contraband was found. Id. And the circumstances did not suggest that Hall, the passenger, “had an exclusive interest in the box that would limit the scope of [the driver’s] general consent.” Id. This interpretation is consistent with the law on the scope of a search pursuant to probable cause. See, e.g., State v. Selph, 261 Ga. App. 541, 543 (583 SE2d 212) (2003) (probable cause to search includes search of “all packages and containers in the car which might contain contraband without a showing of individualized probable cause for each one, including [appellant passenger’s] book bag”).

Varriano asserts that his expectation of privacy in the book bag excludes it from the scope of the driver’s consent, citing Corley, supra, and Bowen v. State, 210 Ga. App. 348 (436 SE2d 76) (1993). But the trial court found that the general consent to search the entire vehicle, including containers therein, controlled. In light of the evidence presented here, we do not find that conclusion to be clearly erroneous.

Corley addressed the passenger’s expectation of privacy argument as an issue of standing: “appellee had the requisite reasonable expectation of privacy to contest the legality of this particular search and seizure.” Id. at 323. The holding with regard to the scope of the search, in contrast, rested upon the finding that the driver gave permission only for the officer to “look inside of” the pickup truck. We held that the officer exceeded the scope of the consent given by opening a closed bag next to the passenger. Id. at 324.

In Bowen, we relied upon Corley, without noting its limited precedential status, to find an expectation of privacy in a passenger’s purse found next to her on the rear seat, “ ‘at least to the extent of vesting the passenger or owner with lawful authority to assert a violation of Fourth Amendment rights.’ ” Id. at 349 (1), citing Corley, supra, 201 Ga. App. at 323. But we concluded that, again as in Corley, the evidence presented did not show a general or unlimited consent to search. The police officer merely stated that he obtained an unspecified “consent to search.” 210 Ga. App. at 349 (1). He also acknowledged that he did not ask for permission to search either the driver’s or the appellant passenger’s purse, and he did not testify that he informed them that he was looking for drugs or weapons. Id.

Decided September 20, 2011

Reconsideration denied October 28, 2011

Scott A. Drake, for appellant.

Daniel J. Porter, District Attorney, Charles P. Efstration III, Assistant District Attorney, for appellee.

This court relied upon that testimony to hold that the evidence should have been suppressed because the officer “admitted that the search of [appellant’s] purse was without consent” and the State therefore failed to establish that the search was within the scope of the driver’s consent. Bowen, supra, 210 Ga. App. at 350. In so holding, we relied upon three cases in which the scope of consent was either invalid or limited to something less than a full-blown search: Rogers v. State, 206 Ga. App. 654, 660-661 (4) (426 SE2d 209) (1992) (illegal detention tainted search when appellant not informed of right to refuse consent and never expressly gave consent); Amato v. State, 193 Ga. App. 459, 460 (1) (388 SE2d 54) (1989) (consent to request to “ ‘look[ ] in the passenger compartment, and the things in the passenger compartment’ ” not consent to disassemble vehicle); Springsteen v. State, 206 Ga. App. 150, 152 (424 SE2d 832) (1992) (acquiescence to pat-down of person not consent to cavity search or removal of clothing). Springsteen also notes that knowledge of what the officers are looking for should be “factored into the scope of the consent which was . . . given.” Id. at 153. See also Davis v. State, 297 Ga. App. 319, 321 (677 SE2d 372) (2009) (since officer placed appellant on notice that he was looking for contraband, officer did not exceed scope of consent to “look in” vehicle by searching trunk of car).

Here, in contrast to the officers in Bowen and Corley, the officer explicitly inquired about the presence of drugs, and he testified that he obtained “consent to search the entire vehicle,” which as a “full-blown search” under Taylor, supra, 230 Ga. App. at 752 (1) (e), includes closed packages and containers. Construing this evidence in favor of the trial court’s findings, as we must, the denial of Varriano’s motion to suppress was not clearly erroneous.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       We noted in Taylor that the passenger’s conviction was likewise affirmed in an unpublished opinion. 230 Ga. App. at 749.


author: Phipps, Presiding Judge.

text:
    A11A0784.
    MELMAN v. FIA CARD SERVICES, N.A.
    (718 SE2d 107)
   Phipps, Presiding Judge.

John Melman appeals from the trial court’s grant of summary judgment to FIA Card Services, N.A. on its suit against him on an account. Melman contends that FIA was not entitled to summary judgment because it failed to produce all records referenced in the affidavit it submitted in support of the motion, and it failed to explain discrepancies between the affidavit and the contents of the exhibits it did produce. For the reasons that follow, we affirm.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We review the trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.

FLA sued Melman in July 2008 alleging that he owed $38,560 on an account. Melman filed an answer generally denying the debt.

FIA moved for summary judgment. To support its motion, FIA submitted the affidavit of an FIA operation analyst who averred, among other things, that: she was familiar with FIA’s business records, including those involved in this lawsuit; FIA’s business records were kept under her supervision and control; and in making the affidavit she relied upon said business records and upon her personal knowledge. The operation analyst averred further that Melman had applied for and obtained credit from FIA; that Melman had made purchases and received advances from FIA which, together with other charges, totaled $38,560; and that Melman refused demands for payment. Attached to the affidavit were, inter alia, a credit card statement bearing the name “Bank of America” and showing a balance due of $38,560; and a copy of a form notice bearing the heading “Bank of America” followed by “Important Notice of Change in Terms” and “Credit Card Agreement.” In the change in terms section, the notice stated that Bank of Arperica Corporation and MBNA Corporation had merged, that the organizations were creating a credit card bank and consolidating “our credit card program into one bank: FIA Card Services, N. A.,” and that effective October 2006 “your Bank of America credit card account will be issued and administered by FIA Card Services, N. A.”

In response to FIA’s motion, Melman submitted a brief in which he asserted that FIA had not produced any evidence of an accepted credit application, of a contract between him and FIA, or that he was indebted to FIA. Melman also asserted that the operation analyst lacked personal knowledge of his business dealings. Melman submitted no evidence in response to FIA’s motion for summary judgment.

1. Melman contends that FIA failed to establish the admissibility of the exhibits attached to the affidavit as business records pursuant to OCGA § 24-3-14 (b). Specifically, he argues that (a) the affidavit failed to specifically identify, describe or reference the exhibits as being FIA’s business records, and (b) the operation analyst did not swear that the documents were truthful, accurate or complete. Pretermitting the question of whether Melman waived these arguments by not raising them below, they are without merit.

OCGA § 24-3-14 (b) provides:

Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

(a) Here, the operation analyst stated under oath, in relevant part, that she maintained and was familiar with FIA’s business records, including the records involved in the instant lawsuit; that FIA’s business records were made in the regular course of the business; that it was the regular course of FIA’s business to make such records at or near the times of the transactions; and that she relied upon said business records and her personal knowledge of the transactions in making the affidavit. She further averred that FIA accepted Melman’s credit application, activated a credit card account on his behalf, and sent him a copy of the credit card agreement “attached hereto as Exhibit 1”; and that Melman made purchases and received advances under the account “as shown by Exhibit ‘2’ attached hereto.” Interpreting and applying OCGA § 24-3-14 (b) liberally, we hold that FIA established the exhibits’ admissibility as business records.

(b) The documents were not rendered inadmissible by the fact that the affidavit, which was sworn, contained no express statement regarding their truthfulness, accuracy or completeness. The court did not abuse its discretion in admitting the documents.

2. Melman contends that FIA was not entitled to summary judgment because it failed to produce all papers or parts thereof referenced in the affidavit, as required by OCGA § 9-11-56 (e). Specifically, he points to FIA’s failure to attach the credit application he allegedly submitted to FIA, the credit card agreement, and all credit card statements showing the charges and advances made and allegedly due FIA.

OCGA § 9-11-56 (e) provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. . . .

To show it was entitled to judgment against Melman on the credit card account, FIA was required to show that Melman entered into an agreement or established an account with FLA, accumulated a balance and failed to pay. The Bank was required to attach to the affidavit copies of the records relied upon and referred to therein that were pertinent to Melman’s debt. It did.

FIA’s affidavit referred to a credit card agreement, which agreement was attached thereto as Exhibit 1. The agreement, which was dated 2006, provided that its terms applied to the user of the account; the agreement further provided that as a result of a merger, the Bank of America account would be issued and administered by FIA. In the affidavit, the operation analyst averred that the agreement was sent to Melman and that Melman had made purchases, received advances and incurred charges “from [FIA] in the amount of $38,560[ ], as shown by Exhibit ‘2’.” Exhibit 2 consisted of credit card statements, each of which bore Melman’s name and address; the January 2008 statement showed a balance of $38,560. The statements bore the name “Bank of America,” but also indicated: “This account is issued and administered by FIA Card Services, N. A.”

When a motion for summary judgment is made and supported as provided in [OCGA § 9-11-56 (e)], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided [in OCGA § 9-11-56 (e)], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. It is . . . the duty of each party at the hearing on the motion for summary judgment to present his case in full.

As shown above, FIA presented the sworn statement of its operation analyst which, together with the pertinent referenced documents that were admissible as business records pursuant to OCGA § 24-3-14, pierced the general denial in Melman’s answer. A copy of the credit application was not required.

Where the business records conform to the provisions of the Code section, they themselves stand as a witness of the correctness of the account and make a prima facie case which shifts the burden of proof to the defendant debtor to show the items contained in the [records], or some of them, are not correct.

After FIA made out its prima facie case, Melman made no showing that the items contained in the records were incorrect and there was a genuine issue to be tried. Thus, no genuine issue of fact remained for jury determination, and the trial court properly granted summary judgment in favor of FIA.

3. Melman contends that FIA was not entitled to summary judgment because FIA failed to explain discrepancies and contradictions in the evidence regarding his account number and the creditor’s name, and that the court was required to construe such contradictory testimony against FLA. Melman bases his argument upon the principle that “where the witness’s sworn testimony is self-contradictory on a material point without explanation, . . . the court [is required] to disregard the portions of the testimony that favor the moving party.”

But Melman made no such argument below.

The purpose behind summary judgment is to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial. This purpose is thwarted when a party may withhold meritorious legal arguments until appeal. Allowing a party to raise new arguments also ignores the duties and responsibilities placed on the parties by OCGA § 9-11-56. Each party has a duty to present his best case on a motion for summary judgment. . . . [0]ur appellate courts are courts for the correction of errors of law committed in the trial court. ... To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.”

Decided October 28, 2011

William R. Carlisle, Jr., for appellant.

Dennis E. Henry, Salvatore L. Schiappa III, for appellee.

Thus, we need not consider this argument raised for the first time on appeal.

We note, however, that Melman points to no authority showing that the account number was a material fact; notably, the account statements submitted in this case all bore Melman’s name and address. Further, any discrepancy regarding the creditor’s name was explained in the notice of change in terms and account statements (which documents were properly admitted as business records). The court did not err in granting summary judgment to FIA.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 6-7 (679 SE2d 57) (2009) (footnote omitted).

       See Finch v. Caldwell, 155 Ga. App. 813, 815 (273 SE2d 216) (1980) (noting that a challenge to the adequacy of the business records foundation can be waived); see generally Caves v. Columbus Bank &c. Co., 264 Ga. App. 107, 111 (2) (a) (589 SE2d 670) (2003) (objection in trial court that testimony regarding account lacked foundation, without stating in trial court what the proper foundation should have been, presented nothing for consideration on appeal); see also Formara v. SunTrust Bank, 306 Ga. App. 398, 400 (1) (702 SE2d 443) (2010) (argument that affidavit was defective because affiant lacked personal knowledge of transaction and documents were not attached to affidavit was not preserved when no such argument had been made to the trial court, either in motion to strike affidavit or in summary judgment brief); but see Parlato v. MARTA, 165 Ga. App. 758, 759 (1) (302 SE2d 613) (1983) (while failure to object to affidavit would have constituted waiver as to form, failure to object did not waive deficiency as to substance of affidavit, which had set forth contentions and conclusions without reference to any factual basis therefor).

       See Vadde v. Bank of America, 301 Ga. App. 475, 478 (1) (687 SE2d 880) (2009); Ishak v. First Flag Bank, 283 Ga. App. 517, 519 (642 SE2d 143) (2007).

       See Vadde, supra at 478 (1) (a); Ishak, supra. ,

       See Bagley v. Fulton-DeKalb Hosp. Auth., 216 Ga. App. 537, 539 (2) (455 SE2d 325) (1995) (“|ajn affidavit need not recite the words ‘true and correct copies’ before the accompanying business records will be admissible”).

       See Ishak, supra.

       See League v. Citibank, 291 Ga. App. 866, 869 (2) (663 SE2d 266) (2008) (summary judgment for creditor affirmed where creditor produced evidence that the debtor requested and obtained the account, accumulated a balance and did not pay); Davis v. Discover Bank, 277 Ga. App. 864 (627 SE2d 819) (2006) (summary judgment for creditor affirmed where creditor produced evidence that a credit card was issued to the debtor along with a document providing that if he used the card he accepted the agreement, statements in the debtor’s name that were mailed to the debtor and not returned, and an account statement showing the balance due);
        Roberson v. Ocwen Fed. Bank, 250 Ga. App. 350, 352 (2) (553 SE2d 162) (2001) (creditor was entitled to summary judgment in action on credit card account where it proved written executed agreement, terms of agreement and balance due).

         See Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756 (2) (400 SE2d 8) (1991).

        Intl. Business Consulting v. First Union Nat. Bank, 192 Ga. App. 742-743 (386 SE2d 400) (1989) (citation and punctuation omitted).

       See Davis, supra at 865.

        Intl. Business Consulting, supra at 743 (citation and punctuation omitted).

       See League, supra; Bozeman v. CACV of Colorado, 282 Ga. App. 256 (638 SE2d 387) (2006) (creditor was entitled to summary judgment on credit agreement where record custodian’s affidavit stated that defendant had established an account with creditor’s predecessor but refused to pay, stated amount owed, and attached authenticated statement reflecting amount of debt on the account, but defendant failed to provide affidavit or other evidence to rebut the evidence); Nugent v. SunTrust Bank, 263 Ga. App. 730, 731 (589 SE2d 298) (2003) (summary judgment for creditor proper where it introduced an affidavit stating that the credit card application represented the agreement between the parties, debtors defaulted under the agreement and were indebted in a certain amount, and produced credit card application signed by debtors, monthly account statement showing balance, and check from debtor to creditor).

       See Intl. Business Consulting, supra. Compare Taquechel, supra (where affidavit was based in part on bank records, and it was clear that the portion of the affidavit which set out the amount owed was based on bank records, balance could not be established on summary judgment by means of bank president’s affidavit which referred to bank records but did not have all or complete records attached); Powers v. Hudson & Keyse, LLC, 289 Ga. App. 251, 252 (1) (656 SE2d 578) (2008) (creditor in suit on account not entitled to summary judgment where motion was purportedly based upon an affidavit and accompanying exhibits, but creditor failed to attach any records establishing the debt).

        Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010) (citation omitted).

        Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) (573 SE2d 389) (2002) (punctuation and footnotes omitted); see Holmes v. Clear Channel Outdoor, 284 Ga. App. 474, 475-476 (1) (644 SE2d 311) (2007).

       See Pfeiffer, supra; Rigdon v. Walker Sales &c., 161 Ga. App. 459, 462-463 (2) (f) (288 SE2d 711) (1982) (debtor appealing from grant of summary judgment to creditor waived his real-party-in-interest objection on appeal by failing to assert it in the trial court).

       See Davis, supra at 864-866 (creditor was entitled to summary judgment on credit card account where it: presented evidence that it issued a credit card to the debtor and sent to him an agreement which provided that he was bound by the agreement’s terms if he used the card; submitted statements in the debtor’s name that were mailed to him and not returned; and submitted evidence of the unpaid balance).