author: PHIPPS, Presiding Judge.

text:
    A10A1495.
    SIMMONS FAMILY PROPERTIES, LLLP v. SHELTON et al.
    (705 SE2d 258)
   PHIPPS, Presiding Judge.

This is an appeal from the trial court’s judgment, after a bench trial, granting a petition to dissolve a limited liability company pursuant to OCGA § 14-11-603 (a) and denying the respondent’s motion to stay the proceeding and compel arbitration. For the reasons that follow, we affirm.

DDE Properties, LLC, is a limited liability company formed in 2005 and owned by Donnie Shelton, Edward G. Johnson, and Simmons Family Properties, LLLP (“SFP”). Under DDE’s operating agreement, each of its members owned a one-third economic and voting interest in DDE. Danny Simmons signed the operating agreement on behalf of SFP

In 2008, Shelton and Johnson filed a petition in superior court to dissolve DDE. They brought the action pursuant to OCGA § 14-11-603, which provides, in relevant part, that on application by or for a member of a limited liability company, the court may decree dissolution of the company whenever it is not reasonably practicable to carry on the company’s business in conformity with the articles of organization or a written operating agreement. In their petition, Shelton and Johnson alleged that it was not reasonably practicable to carry on the company’s business because DDE’s sole manager, Simmons, had never called an annual meeting as required by DDE’s operating agreement, and when Shelton and Johnson attempted to call a special meeting as provided in the operating agreement for the purpose of dissolving the company, Simmons did not attend; thus, the members were unable to achieve a quorum.

SFP filed an answer opposing the petition, a counterclaim, and a motion to stay the petition and compel arbitration (“motion to compel arbitration”). The trial court denied the motion to compel arbitration and granted the petition for dissolution. SFP appeals.

1. SFP contends that the trial court erred in denying its motion to compel arbitration, arguing that the operating agreement for DDE required that the request for dissolution be handled by an arbitrator. We disagree.

The question of arbitrability, i.e., whether an agreement creates a duty for the parties to arbitrate the particular grievance, is undeniably an issue for judicial determination. The standard of review of a trial court’s ruling on a motion to compel arbitration is whether the trial court was correct as a matter of law. The construction of an arbitration agreement, like any other contract, presents a question of law, which is subject to de novo review.

The operating agreement at issue in this case provides, in pertinent part:

15.16. Arbitration. Any dispute, controversy or claim arising out of or in connection with, or relating to this Agreement or any breach or alleged breach hereof shall, upon the request of any party involved, be submitted to, and settled by, arbitration in the City of Dalton, State of Georgia, pursuant to the commercial arbitration rules then in effect of the American Arbitration Association.

Thus, the question to be resolved by the trial court was whether the request for judicial dissolution of DDE was a claim arising out of, in connection with, or relating to the operating agreement or any breach or alleged breach thereof.

Regarding dissolution, Section 14.1 (b) of the operating agreement provides in pertinent part:

[I]f a Member or Members owning Voting Interests which in the aggregate constitute not less than two-thirds of the Voting Interest vote to dissolve the Company at a meeting of the Members of the Company, then all of the Members shall agree in writing to dissolve the Company as soon as possible . . . thereafter.

In their efforts to dissolve the company, Shelton and Johnson initially sought to do so as provided in the operating agreement. When those efforts failed, they commenced the underlying dissolution proceeding pursuant to OCGA § 14-11-603. This Code section provides an independent legal mechanism for the judicial and administrative dissolution of a limited liability company. The operating agreement in this case expressly limits the parameters within which dissolution may be sought pursuant to its terms, thus it does not govern dissolution proceedings initiated pursuant to OCGA § 14-11-603. Accordingly, the trial court properly looked to the terms of the judicial dissolution statute to determine if dissolution was otherwise available.

Even though . . . [OCGA § 14-11-603] requires the court to look to the substantive terms of the [o]perating [algreement to see if the [company] can still function effectively, this statutory requirement does not change the fact that these dissolution proceedings are an exclusive outgrowth of that statute rather than the [o]perating [a]greement.

Because the manner of dissolution involved here — initiated pursuant to OCGA § 14-11-603 — did not arise out of, in connection with or relate to the terms of the operating agreement or any alleged breach thereof, the trial court properly determined that the issue of DDE’s dissolution need not be submitted to arbitration.

2. SFP contends that the trial court erred in finding that it was not reasonably practicable for DDE to carry on its business in conformity with the operating agreement. SFP argues that dissolution is not allowed where, as here, the company was carrying on its business functions in accordance with the operating agreement, but there was a technical violation of the agreement regarding meetings, and two of the members simply wanted to rewrite the agreement. According to SFPJ Shelton and Johnson did not object to the manner in which the business was being conducted until Simmons demanded that Shelton and Johnson remove a lien they impermissibly allowed to be placed on property owned by DDE in favor of a third party.

The operating agreement contains the following provisions, in pertinent parts, regarding meetings. The annual meeting of the members shall be held at such time and place as shall be determined by the manager, beginning with the first year after the formation of the company, for the purpose of transacting business; the manager may specify in writing to the members prior to any special meeting held within the year that such special meeting shall be in lieu of the annual meeting. Special meetings may be called by any manager or by any members holding at least ten percent of the voting interest. Unless waived as herein provided, written notice stating the time and place of the meeting and the purpose of the meeting shall be delivered a certain number of days before the meeting by the manager or persons calling the meeting to each person eligible to vote at the meeting. If all of the members shall meet at any time and place and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting any lawful action may be taken. Members holding super-majority interests (80%), represented in person or by proxy, shall constitute a quorum at any meeting of members. If a quorum is present, the affirmative vote of members holding a super-majority interest (80%) of the members present shall be the act of the members. The manager shall preside at every meeting, and in the absence of the manager, the members shall elect the presiding officer. The manager holds office until the next annual meeting of the members or until his successor has been elected and qualified.

Decided November 30, 2010

Reconsideration denied December 13,2010 —

Viewed most favorably to the trial court’s findings, the evidence shows the following. As of the date of the trial (May 2009), no notices of annual meetings had ever been sent or received after DDE’s formation in February 2005; annual meetings were requested but not called or held (the evidence conflicted as to whether one such meeting was held in May 2006); while some special meetings were held to resolve specific matters, no special meetings were held in lieu of annual meetings or for the purpose of selecting a manager; the court found no conclusive evidence that the members had consented to informal meetings as provided in the operating agreement; when Shelton and Johnson scheduled a special meeting, Simmons’s attorney responded that the meeting would not be held, Simmons did not attend, and Shelton and Johnson were unable to achieve a quorum; Johnson made several attempts to hold meetings for the purpose of selecting a manager, but every such attempt was “turned down.”

In granting the petition for dissolution, the court noted that the lack of properly-noticed annual meetings was “more than a formality,” as such meetings are the primary venue in the operating agreement for non-managing members to have their voices heard. The court further held that the lack of notice impeded the members’ ability to protect their investments by contributing to the direction of the company. The court found that the members of DDE were effectively deadlocked over several issues and that the situation appeared unlikely to change.

Based upon the evidence presented, the trial court did not err in finding that it was not reasonably practicable for DDE to carry on business in conformity with the operating agreement, and did not err in granting the petition to dissolve the limited liability company.

Judgment affirmed.

Miller, C. J., and Johnson, J., concur.

Robert G. McCurry, for appellant.

Minor, Bell & Neal, Dennis D. Watson, Brian D. Wright, for appellees.

       Simmons also served as manager of Simmons Family Investments, LLLC, the general partner of SFE

       7.1 Annual Meeting. The annual meeting of the Members shall be held at such time and place as shall be determined by the Manager commencing with the first year after the formation of the Company, for the purpose of the transaction of such business as may come before the meeting. The Manager may specify in writing to the Members prior to any special meeting of the Members held within the year that such special meeting shall be in lieu of the annual meeting.

       “7.2 Special Meetings. Special meetings of the Members, for any purpose or purposes, unless otherwise prescribed by statute, may be called by any Manager or by any Member or Members holding at least 10% of the Voting Interest.”

       “7.7 Quorum. Members holding Super Majority Interests (80%), represented in person or by proxy, shall constitute a quorum at any meeting of Members.”

        Wells Fargo Auto Finance v. Wright, 304 Ga. App. 621 (698 SE2d 17) (2010) (footnote omitted).

        Ga. Rehab. Center v. Newnan Hosp., 283 Ga. 335, 336 (1) (658 SE2d 737) (2008).

       See id. at 336 (1), n. 1.

       Id.

       Id.

       Id. at 336 (1).

       See OCGA § 14-11-603 (a).

       Section 7.1.

       Section 7.2.

       Section 7.4.

       Section 7.5.

       Section 7.7.

       Section 7.8.

       Section 7.12.

       Section 5.4.

       See Ervin v. Turner, 291 Ga. App. 719, 720, 725-726 (10) (662 SE2d 721) (2008) (on appeal from entry of judgment in a bench trial in which court granted, inter alia, a petition for dissolution of LLC, evidence is viewed in light most favorable to trial court’s findings of fact); McDilda v. Norman W. Fries, Inc., 278 Ga. App. 51 (628 SE2d 195) (2006) (a trial court’s factual findings in a bench trial must be deferred to when supported by any evidence).

       See OCGA§ 14-11-603 (a).


source: Caselaw Access Project

author: Miller, Chief Judge.

license: Public Domain

text:
    A10A1881.
    PHILLIPS v. THE STATE.
    (705 SE2d 287)
   Miller, Chief Judge.

A Gwinnett County jury found Samuel Lavern Phillips guilty of trafficking in more than 400 grams of cocaine. OCGA § 16-13-31 (a) (1) (C). On appeal, Phillips contends that (i) the evidence was insufficient to support the jury’s verdict and (ii) the triad court erred in refusing to give his requested charge on mistake of fact. We find Phillips’s claims to be without merit and affirm.

“On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [Phillips] no longer enjoys a presumption of innocence.” (Citation, punctuation and footnote omitted.) Boring v. State, 303 Ga. App. 576, 577 (1) (694 SE2d 157) (2010). So viewed, the evidence shows that a confidential informant told a Gwinnett County police investigator that a Hispanic male known as Eduardo was interested in purchasing between one-and-a-half and two kilograms of cocaine. Acting on this information, the police assigned an undercover officer to pose as a drug dealer in a reverse sting operation. The officer, wearing a body wire, went to Eduardo’s house with two kilograms of cocaine taken from the “drug safe” at police headquarters, and the informant introduced the officer to Eduardo.

There were several men sitting at the front of the house, and Eduardo called Phillips over from the group. Phillips asked if there was a problem, and after the officer responded that there was no problem, Phillips said “come on, lets do it.” Phillips and the officer went to the officer’s car where the officer showed Phillips the two kilograms of cocaine. Phillips told the officer to bring the drugs to the house, and the officer agreed to bring one kilogram inside.

When they got to the front door the officer realized that there were several people in the house and several more who were trying to enter, and he expressed concern for his safety. Phillips told everyone to leave the residence. The officer then entered the house with Phillips and Phillips’s co-defendant, Marcus Moore, while Eduardo remained outside with the others. The brick of cocaine brought into the house contained 1,005.21 grams of 81.5 percent pure cocaine.

Once inside, Phillips directed Moore to get the money, and Phillips and the officer counted the currency as Moore, using a knife provided by Phillips, cut open the wrapping over the kilogram of cocaine, tasted the contents, and said “we [are] good.” At or around this time, the police decided to bring in the “takedown” team.

After Phillips was arrested and informed of his Miranda rights he agreed to speak with a police officer. In his initial statements, Phillips claimed that he was at Eduardo’s house in connection with Phillips’s flooring business. Phillips changed his story when the police “reveal[ed]” the undercover officer. Phillips then claimed that he brought some people to the location “to handle business that they had to take care of”; that he was there to count the money; that he was to receive between $500 and $1,000 from the deal; and he acknowledged that he had suspicions that narcotics were involved.

1. In order to convict Phillips of trafficking in cocaine as alleged in the indictment the State was required to show that Phillips was in knowing possession of 400 grams or more of the drug. See OCGA § 16-13-31 (a) (1) (C). Phillips argues, among other things, that the evidence was insufficient to support the jury’s verdict because the transaction took place at Eduardo’s residence, the packaged cocaine was not visible as drugs, he never took possession of the package, he did not taste the drugs, and the evidence failed to show he contributed any money to the transaction. We disagree.

Contrary to Phillips’s claims that the evidence was insufficient, the evidence showed that a package containing over 1,000 grams of cocaine was taken into the house at Phillips’s request, the money was brought to the table at Phillips’s direction, and the package was opened and tasted by Moore with a knife provided by Phillips, followed by Moore’s pronouncement that “we [are] good.” The jury could conclude that Phillips knew he was engaging in a transaction to buy drugs and that he had both the power and intent to control the cocaine that was brought into the house following presentation of the currency and testing of the product. “A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” Uriostegui v. State, 269 Ga. App. 51, 53 (603 SE2d 478) (2004) (jury authorized to convict defendant for trafficking based on actual or constructive possession). Any rational trier of fact could find beyond a reasonable doubt that Phillips was guilty of trafficking in cocaine as alleged in the indictment. See Cody v. State, 222 Ga. App. 468 (474 SE2d 669) (1996) (possession of drugs transferred to co-defendant before the arrest in reverse sting operation). Compare Epps v. State, 251 Ga. App. 645, 647 (555 SE2d 25) (2001) (authorities arrested defendant before he could come into possession of drugs sold in the sting operation).

Decided December 13, 2010.

Sharon L. Hopkins, for appellant.

2. Phillips claims that the trial court erred in refusing to give his requested charge on mistake of fact, as it was his only defense. We disagree.

As a rule, the trial court must charge the jury on an affirmative defense such as mistake of fact if the defense is raised by the evidence. See Jones v. State, 226 Ga. App. 619, 621 (1) (487 SE2d 371) (1997); Arnold v. State, 157 Ga. App. 714 (1) (278 SE2d 418) (1981) (trial court erred in not giving charge on mistake of fact when defendant testified that he entered the store with the intent to relieve himself, not to commit a robbery or theft therein). The trial court is not, however, required to charge the jury on mistake of fact if the charge is not authorized by the evidence, even if mistake of fact is the sole defense. See Taylor v. State, 293 Ga. App. 551, 555 (3) (667 SE2d 405) (2008).

In this case, Phillips, who did not testify at trial, relies on his out-of-court statement to police that he was at Eduardo’s house in connection with Phillips’s flooring business as the evidentiary basis for a charge on mistake of fact. But “it is well-settled that self-serving statements made by the accused, either before or after the commission of the alleged offense, are inadmissible hearsay.” (Citation, punctuation and footnote omitted.) Robinson v. State, 246 Ga. App. 576, 581 (4) (541 SE2d 660) (2000) (trial court properly excluded defendant’s self-serving statements to police). See Nunez v. State, 237 Ga. App. 808, 811 (4) (516 SE2d 357) (1999) (self-serving custodial statement inadmissible hearsay). Though admitted into evidence, Phillips’s self-serving statement was without probative value and could not support a charge on mistake of fact. See Jones v. State, 271 Ga. 516, 517 (2) (520 SE2d 454) (1999) (hearsay is without probative value though admitted without objection and so no evidence supported a charge on self-defense notwithstanding the testimony as to defendant’s out-of-court statement); Clausell v. State, 302 Ga. App. 472, 474 (1) (691 SE2d 312) (2010). Even if Phillips’s statement is considered evidence that he had visited Eduardo’s house to discuss flooring, the purpose of his visit would not excuse his subsequent participation in a drug transaction. See, e.g., Dimas v. State, 276 Ga. App. 245, 246 (3) (622 SE2d 914) (2005) (defendant’s alleged mistake would not have justified his actions and no charge on mistake of fact was required). The trial court did not err in refusing to give the charge.

Judgment affirmed.

Phipps, E J., and Johnson, J., concur.

Daniel J. Porter, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.


author: SMITH, Presiding Judge.

text:
    A10A0965.
    HIX v. THE HERTZ CORPORATION.
    (705 SE2d 219)
   SMITH, Presiding Judge.

We granted William Hix’s application for discretionary appeal to consider an issue of first impression: May a plaintiff in a garnishment action recover insurance proceeds from a self-insured car rental agency when the defendant renter was driving in violation of the rental agreement when he caused the accident? After reviewing the applicable law, we conclude that the trial court correctly applied the exclusion in the rental agreement to Hix’s claim, and we therefore affirm the judgment.

The relevant facts in this case are not in dispute. On January 9, 2004, Carson Bolt rented an SUV from the Hertz Corporation. Bolt declined to purchase the optional liability insurance provided by Hertz. On January 19, 2004, while fleeing from sheriffs deputies at high speeds and while driving under the influence of drugs to the extent he was impaired, Bolt collided with a car driven by appellant Hix. Hix was injured and his wife was killed in the collision. In addition, Bolt was transporting drugs and stolen property in the SUV Bolt pled guilty in Banks County to first degree vehicular homicide, serious injury by reckless driving, felony obstruction of an officer, felony fleeing and attempting to elude, and possession of methamphetamine. He was sentenced to twenty years in prison and ten years on probation.

Hix sued Bolt and obtained a consent judgment for $5.1 million, agreeing not to seek to enforce the judgment against any of Bolt’s personal assets. Bolt was the insured on a liability policy with Progressive Insurance Company, which paid the policy limits of $200,000 to Hix. In addition, Hix’s insurance policy included uninsured motorist coverage with Cotton States Mutual Insurance Company, providing the statutory limits.

At the time of the collision, Hertz had on file with the Georgia insurance commissioner a self-insurance plan with a liability limit of $10 million. Bolt’s rental agreement with Hertz prohibited certain uses of the vehicle, including “wilful or wanton misconduct, which among other things, may include reckless conduct such as . . . use off paved roads,” using the vehicle “while legally intoxicated or under the influence of alcohol [or] drugs,” and using the vehicle “for any purpose that could properly be charged as a crime, such as the illegal transportation of persons, drugs, or contraband.” The rental agreement further provides:

Any use of the car in a manner prohibited above: . . . ii. To the extent permitted by applicable law, will cause you to lose the benefit of all personal accident insurance (“PAI”) and personal effects coverage (“PEC”), liability insurance supplement (“LIS”) coverage and liability protection provided by Hertz under this agreement.

It is undisputed that Bolt pled guilty to homicide by vehicle, causing serious injury by fleeing from law enforcement, driving recklessly by driving off the roadway, and driving under the influence. It is also undisputed that Bolt was charged in North Carolina with obtaining by false pretenses property found in the vehicle.

Hix filed this garnishment action against Hertz seeking recovery of the remainder of his judgment against Bolt from Hertz’s self-insurance plan. Both Hix and Hertz moved for summary judgment. In a lengthy and thorough order, the trial court granted both motions in part and denied them in part. The trial court correctly analyzed the applicable legal issues, and we therefore affirm.

While the precise issue presented here has not been decided, existing Georgia precedent is instructive. First, OCGA § 33-34-4 requires that Hertz provide coverage for its rental vehicles or self-insurance, once it demonstrates to the satisfaction of the state insurance commissioner that it “has and will continue to have the ability to provide coverages, benefits, and claims-handling procedures substantially equivalent to those afforded by a policy of vehicle insurance in compliance with this chapter.” OCGA § 33-34-5.1 (a) (1). With respect to priority of coverage between Hertz’s self-insurance and Bolt’s liability policy,

OCGA § 33-34-4 still requires car rental companies to insure the cars they own, but they enjoy special treatment in terms of coverage priority on cars rented to the public under OCGA § 40-9-102. Under OCGA § 40-9-102, the renter’s liability insurance coverage is primary, and the rental company’s liability insurance coverage is secondary or excess. Code section 40-9-102, therefore, reverses the usual order of liability coverage inasmuch as the renter’s coverage is primary and the owner’s coverage is secondary.

(Citations and punctuation omitted.) Zurich American Ins. Co. v. Gen. Car & Truck Leasing System, 258 Ga. App. 733, 735 (2) (574 SE2d 914) (2002).

Here, we must consider whether Bolt’s violation of the rental agreement amounts to an exclusion of coverage under Hertz’s self-insurance plan. Exclusions are enforceable in insurance policies generally, except when public policy mandates otherwise.

Competent parties are free to choose, insert, and agree to whatever provisions they desire in a contract, including insurance contracts, unless prohibited by statute or public policy. Exclusions . . . are controlled by three competing public interests: (1) as insureds, to limit the insurer’s risks and thereby keep automobile insurance premiums as low as possible; (2) as members of the public in general to improve safety on the highways; and (3) as accident victims, to have access to insurance funds to satisfy their judgments.

(Citations and punctuation omitted.) Florida Intl. Indem. Co. v. Guest, 219 Ga. App. 222, 225 (464 SE2d 847) (1995), citing in part Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 341 (1) (329 SE2d 136) (1985). Hix, as a garnishor, stands in the shoes of the defendant, Bolt, and cannot garnish amounts that Bolt himself could not have obtained from Hertz.

It is well settled by numerous decisions of this court and of the Supreme Court that the position of a plaintiff in relation to the garnishee is no better than the position of the defendant in execution, and if the defendant could not sue and obtain a judgment against the garnishee, then the plaintiff is not entitled to a judgment against the garnishee.

(Citations and punctuation omitted.) Scarboro v. Ralston Purina Co., 160 Ga. App. 576, 577 (287 SE2d 623) (1981).

We must next decide whether the relevant exclusions, as a matter of public policy, apply to Hix and his wife as the innocent victims of a motor vehicle accident. A long line of Georgia cases has addressed this question in the context of several insurance exclusions.

While recognizing that public policy favors the compensation of innocent accident victims, the courts have determined that public policy will decline to enforce policy exclusions only to the extent of the statutory coverage limits mandated by Georgia’s compulsory insurance law, OCGA § 33-7-11 (a) (1) (A). See Neese, supra, 254 Ga. at 341-342 (2) (exclusion for “attempting to avoid apprehension or arrest” unenforceable as against public policy only to the extent of insurance required by compulsory insurance law); Hoque v. Empire Fire &c. Ins. Co., 281 Ga. App. 810, 812 (637 SE2d 465) (2006) (intrafamily exclusion enforceable when injured third party had access to other insurance in excess of statutory minimums); State Farm Mut. Auto. Ins. Co. v. Drawdy, 217 Ga. App. 236, 237 (2) (456 SE2d 745) (1995) (lack of notice exclusion enforceable when uninsured motorist coverage available); Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 614 (1) (440 SE2d 242) (1994) (intentional damage exclusion not void in light of available uninsured motorist coverage); Travelers Ins. Co. v. Progressive Preferred Ins. Co., 193 Ga. App. 864 (389 SE2d 370) (1989) (unlicensed driver exclusion upheld because injured third party had access to other insurance).

Under the Neese analysis, the relevant question is whether the public policy of ensuring some recovery for the third party is satisfied by the third party’s access to a recovery through uninsured motorist coverage. We answer that question here in the positive. And because the policy of ensuring some recovery is satisfied, the public’s interests in low premiums and safe highways prevail in the Neese balancing process, resulting in a decision to enforce the exclusion.

Drawdy, supra, 217 Ga. App. at 239 (2). Here, enforcing the applicable exclusions does not conflict with Georgia’s public policy in favor of compulsory insurance coverage because Hix indisputably received compensation in excess of the amount required by OCGA § 33-7-11 (a) (1) (A). While Hix “may contend that the compulsory minimum insurance amount, as set by the Georgia legislature, is inadequate compensation,” the exclusions “[do] not violate public policy because [they do] not prevent recovery of the compulsory minimum insurance amount.” Hoque, supra, 281 Ga. App. at 812.

Hix acknowledges, as he must, that Bolt’s conduct falls within one or more of the applicable exclusions in the rental agreement. He contends, however, that none of them should apply because no exclusions are listed in the self-insurance plan filed by Hertz with the state insurance commissioner. But neither the statute governing the filing of self-insurance plans, OCGA § 33-34-5.1 (a) (1), nor the application form required by the commissioner requires the applicant seeking a certificate of self-insurance to provide a list of all or any exclusions, and Hix cites no case requiring such a filing. Moreover, in Gen. Car & Truck Leasing System v. Woodruff, 214 Ga. App. 200, 203 (3) (447 SE2d 97) (1994), we noted that “an exclusion for intentionally caused damage was not void as against public policy since the injured third party had access to other insurance funds. [Cit.]” Id. In that case, we concluded that an exclusion in a rental agreement for any violation of the traffic laws was overbroad and unenforceable as a matter of public policy, while a lack of notice provision in the same agreement was unenforceable as a matter of public policy against an innocent third party. Id. at 203-204. As Hertz points out, even though the court in Woodruff ultimately found the exclusions unenforceable, if exclusions in a rental agreement were inapplicable to a policy of self-insurance, there would have been no need for an extensive analysis of their wording.

Hix argues that Jordan v. Spirit Rent-A-Car, 252 Ga. App. 117, 119 (1) (555 SE2d 734) (2001), supports his position. But Jordan involved liability coverage limits, not an exclusion. OCGA § 33-34-5.1 (a) (1) and the insurance commissioner’s application form both expressly require a statement of coverage limits in the filing with the insurance commissioner, and in Jordan we applied the coverage limit as stated in the self-insurer’s filings with the Insurance Commissioner. Id. at 119-120 (2). Similarly, Nat. Svcs. Indus. v. Trans-america Ins. Co., 206 Ga. App. 337 (425 SE2d 327) (1992), also relied upon by Hix, dealt not with an exclusion but with the question of liability coverage limits in a self-insurance plan. Id. at 340 (2).

The United States District Court for the Middle District of Georgia considered this question at some length in Ryan v. Boyd, 911 FSupp. 524 (M.D. Ga. 1996), and reached the same conclusion with respect to a DUI use exclusion:

Whether liability coverage is provided by an insurance policy or by a self-insured company, the public policy of Georgia is to insure that adequate resources be available for the benefit of injured innocent persons. . . . The court finds no basis for concluding that Georgia’s public policy places a greater obligation upon a self-insurer to protect a third party against unlawful operation of a motor vehicle than it places upon a company providing coverage under an insurance policy.

Id. at 528-529 (III) (C). Decisions of federal courts are not binding authority on this court, but their reasoning may be persuasive, Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558 (458 SE2d 95) (1995), and, like the trial court, we find the reasoning of the district court and its analysis of Georgia law persuasive.

Decided November 23, 2010

Reconsideration denied December 14, 2010.

Hudson, Montgomery & Kalivoda, David R. Montgomery, Kenneth Kalivoda, for appellant.

Weinberg, Wheeler,' Hudgins, Gunn & Dial, Patrick B. Moore, Howard J. Russell, Stephen J. Rapp, for appellee.

We conclude that the exclusions in Bolt’s rental agreement apply to Hix’s claim in garnishment and that the public policy considerations enforcing the statutory minimum coverage are not implicated because Hix received compensation in excess of that required by statute. We therefore affirm the judgment of the trial court.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The stolen property charge, along with various fraud and deception charges, was pursued in another jurisdiction.

       The trial court held, and we agree, that a garnishment action is a proper vehicle for seeking a recovery here. See Ross v. St. Paul Reinsurance Co., 279 Ga. 92, 94 (610 SE2d 57) (2005).

       In addition, the required claims practices filing with the insurance commissioner states that Hertz will “pursue all contract violations and indemnification actions.”


text:
    A10A1089.
    KILGORE v. STEWART.
    (705 SE2d 209)
   SMITH, Presiding Judge.

John Kilgore appeals from the trial court’s order denying his motion to dismiss a renewal action filed by Grant Stewart. Kilgore asserts the trial court should have dismissed Stewart’s renewal action because it was filed before Stewart validly dismissed his first action against Kilgore. We agree and therefore reverse.

The record shows that Stewart filed suit against Kilgore and Walter Stansberry for injuries he received in an automobile accident. Stewart also served State Farm Mutual Automobile Insurance Company with a copy of the complaint. Stewart voluntarily dismissed Kilgore, and only Kilgore, on March 6, 2009. Thirteen days later, he voluntarily dismissed Stansberry. Shortly after that, he filed a renewal action against both defendants. On June 16, 2009 — long after the renewal action had been filed — the trial court entered a “so ordered” stamp on the voluntary dismissal of Kilgore and signed the stamp.

Kilgore moved to dismiss the renewed complaint based upon Stewart’s failure to obtain a court order approving his dismissal before filing the renewal action as required by OCGA § 9-11-21. The trial court denied the motion in a one-sentence order without explaining its reasoning.

Decided November 17, 2010

Reconsideration denied December 14, 2010.

Groth & Makarenko, Nikolai Makarenko, Jr., Laura D. Johnson, for appellant.

Saveli & Williams, Matthew J. Ashby, Mark W Thomas, William D. Ellis, Jr., for appellee.

We agree with Kilgore’s contention on appeal that the trial court should have granted his motion to dismiss. “The dismissal of less than all the parties from an action ... is accomplished under OCGA § 9-11-21 with the requirement that it be done by order of the court.” (Citations omitted.) Rosales v. Davis, 260 Ga. App. 709, 710 (1) (580 SE2d 662) (2003). If a plaintiff attempts to voluntarily dismiss less than all the defendants without obtaining leave of court, the dismissal is ineffective. Id. See also Boomershine Pontiac-GMC Truck v. Snapp, 232 Ga. App. 850, 851 (503 SE2d 90) (1998). Finally, “in order to file a valid renewal action pursuant to [OCGA § 9-11-41 (d)], it is essential that the first action be dismissed before the second action becomes a valid and pending suit.” (Citation and punctuation omitted.) Gober v. Hosp. Auth. of Gwinnett County, 191 Ga. App. 498, 499 (2) (382 SE2d 106) (1989).

In this case, the record demonstrates that Stewart’s first action was not validly dismissed before he filed his renewal action. His initial attempted dismissal of Kilgore was not effective at the time he attempted to later dismiss Stansberry because he had not yet obtained a court order approving the dismissal of only Kilgore. As a result, his attempted dismissal of Stansberry was also ineffective. Because neither defendant was validly dismissed from the action at the time Stewart filed his renewal action, the trial court erred by denying Kilgore’s motion to dismiss. Gober, supra at 499 (2). See also Gober v. Nisbet, 186 Ga. App. 264, 265-266 (1) (367 SE2d 68) (1988).

Judgment reversed.

Mikell and Adams, JJ., concur.


text:
    A10A1279.
    TURNER v. THE STATE.
    (705 SE2d 177)
   SMITH, Presiding Judge.

Trenell Turner appeals from his conviction of simple battery, a misdemeanor. He contends insufficient evidence supports his conviction and that the trial court erred by refusing to give several requested charges. We disagree and affirm.

1. Viewed in the light most favorable to the verdict, the record shows that Turner and his live-in girlfriend argued about his plans to attend a study group that included three women. The record shows that Turner was employed as a detention officer with the DeKalb County Sheriffs Office and was studying to obtain a promotion to become a deputy. The girlfriend acknowledged that before this incident, she had never experienced problems with Turner losing his temper in the six years she had dated him.

After a “pretty loud” argument about Turner’s study plans, the defendant took a shower as he prepared to go to the study group. When he got out of the shower, he “immediately start[ed] accusing” the girlfriend of taking his car keys. She denied taking his keys, and Turner began “going through [her] things, through [her] drawers, throwing everything out all over the room, on the dresser, on the bed.” When he did not stop after she asked him to do so, she admitted that she threatened to “go where his papers was in the kitchen and tear them up.” By papers, she meant his papers for the POST training that she knew “were critical to his completion” of the training. When he still did not stop, she went into the kitchen and took his papers out of a notebook and placed them on the table.

The victim testified that when Turner came into the kitchen, she explained that she had not torn up his papers. He then blocked her from walking around the table, grabbed her by one arm, pulled her into the living room, threw her chestfirst against the back of the couch and handcuffed her hands behind her back. She repeatedly asked him to stop, and when she told him he would go to jail, Turner responded that “he is the law.” When Turner went into the bedroom, she followed him, repeatedly asked him to remove the handcuffs, and told him that she was going to call the police. Turner offered to call 911 for her and held the phone up to her ear. Turner did not remove the handcuffs before the police arrived despite his girlfriend’s repeated requests.

When police officers arrived, they immediately removed the handcuffs from the girlfriend. In the bedroom, they observed “clothes everywhere, meaning bras, panties, pajamas, just clothes everywhere.”

Turner testified that he told his girlfriend that she could get in trouble if she tore up his training papers as she had threatened. In his opinion, she could have been arrested if she had done so. He explained that when she went into the kitchen he thought “she’s going to tear up my papers because she had been destructive in the past, like, she had broken stuff and thrown stuff ... in the past.” When he went into the kitchen, he saw her pulling pages out of the book and asked her to stop. According to Turner, she replied, “I’m not going to stop if you keep on messing with my clothes.” This gave Turner

the impression that she was actually going to go through with what she threatened to do, so I made the decision to go ahead and go towards her. I picked her up from behind. . . . She was still at the table. I grabbed her right arm, pulled her towards me. I picked her up from behind and picked her up off her feet. Now, when she was not on the floor anymore, she started struggling. She was struggling, like, let me go, let me go, and I was, like, I’m not going to allow you to tear these papers up.

He testified that he handcuffed her because he did not want anyone to get hurt in a struggle and because he knew that handcuffing her would ensure that his papers would not get torn up. He refused to let her out of the handcuffs because she refused to promise that she would not tear up his papers. He admitted that she told him she was not really going to tear up his papers while she remained in handcuffs waiting for the police to arrive. He decided against releasing her from the handcuffs before the deputies arrived because he did not want her to get aggressive toward him after being released. Finally, he admitted that he obtained the handcuffs from his bag before entering the kitchen and before he determined whether she had done anything to his papers. He denied throwing her clothing “around the room,” claiming instead that he placed them on the bed.

We find this evidence sufficient to support Turner’s conviction of simple battery.

2. Turner contends the trial court erred by declining his requests to charge on arrest by a private person, interference with government property, criminal damage to property in the second degree, and criminal trespass.

The record shows that the trial court gave the following charge on Turner’s sole defense of justification:

An affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Once an affirmative defense is raised, the burden is on the state to disprove it beyond a reasonable doubt.
A person is justified in threatening or using force against another when and to the extent the person reasonably believes that such threat or force is necessary to prevent or terminate the other’s trespass on or other tortious or criminal interference with personal property that is lawfully in the person’s possession.

(Emphasis supplied.) The trial court refused to give Turner’s requested charge on private arrest because Turner did not testify that he was arresting his -girlfriend when he placed her in handcuffs. Based upon this conclusion, the trial court determined that the requested charges on interference with government property, criminal damage to property in the second degree, and criminal trespass were not supported by the evidence.

(a) We affirm the trial court’s ruling with regard to the requested charges on arrest by a private person, interference with government property, and criminal damage to property in the second degree because “it is not error to refuse a requested charge when there is no evidence to support it.” (Citation and footnote omitted.) Monsalve v. State, 271 Ga. 523, 526 (3) (519 SE2d 915) (1999). In this case, no evidence was submitted showing that Turner’s girlfriend “destroyed], damage[d], or deface[d] government property” or “intentionally damage [d] any property of another person without his consent.” Likewise, no evidence shows that Turner placed his girlfriend in handcuffs in the course of a private arrest; it shows instead that he was simply trying to prevent her from destroying his notebook. See OCGA § 17-4-60 (defining private arrest).

(b) We also affirm the trial court’s ruling with regard to criminal trespass because the justification charge adequately addressed this concept for the jury. “Because the charge taken as a whole was adequate, the trial court did not err in refusing to give the requested charge.” Short v. State, 276 Ga. App. 340, 348 (6) (623 SE2d 195) (2005). The charge given by the trial court “did . . . fully explain the concept of justification.” Christopher v. State, 269 Ga. 382, 383 (3) (497 SE2d 803) (1998).

Decided October 27, 2010

Reconsideration denied December 14, 2010.

Teresa L. Smith, for appellant.

W. Kendall Wynne, Jr., District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       The jury acquitted Turner of false imprisonment.

       POST is an abbreviation for the Georgia Peace Officer Standards and Training Council.

       OCGA § 16-7-24 (a) (interference with government property).

       OCGA § 16-7-23 (a) (1) (criminal damage to property in the second degree).


text:
    A10A1328.
    McGRUDER v. THE STATE.
    (705 SE2d 175)
   SMITH, Presiding Judge.

Willie McGruder pled guilty to armed robbery and possession of a firearm during the commission of a crime. Following the dismissal of his motions to withdraw his guilty plea and to modify his sentence, McGruder appeals, acting pro se. For the following reasons, we affirm.

1. The trial court dismissed McGruder’s pro se motions to withdraw his guilty plea and to modify his sentence on the ground that the motions were filed outside of the term in which his guilty plea and sentence were entered. To the extent McGruder challenges the dismissal of these motions, we find no error. McGruder entered his guilty plea on February 2, 2001, during the January term of Richmond County Superior Court. OCGA § 15-6-3 (5) (C). He filed his motions on June 26, 2009 and January 22, 2010, many years after the January 2001 term of court expired.

The superior court’s jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered. And it is well established that after the expiration of the term and of the time for filing an appeal from the conviction, the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings.

(Citations and footnotes omitted.) LaFette v. State, 285 Ga. App. 516 (1) (646 SE2d 725) (2007). “Similarly, a trial court is without jurisdiction to modify a sentence after the expiration of the term of court during which the sentence was entered.” (Citations, punctuation and footnote omitted.) Fox v. State, 241 Ga. App. 399 (527 SE2d 216) (1999). The trial court therefore did not err in dismissing McGruder’s motions to withdraw his guilty plea and to modify his sentence. Id.; LaFette, supra.

2. McGruder argues that his plea must be set aside because the trial court failed to advise him of the waiver of his privilege against self-incrimination. He is in essence seeking to withdraw the plea on the ground that it was not knowing and voluntary. But as explained in Division 1, the trial court is without jurisdiction to allow the withdrawal of a guilty plea after the expiration of the term of court in which the defendant was sentenced. Orr v. State, 276 Ga. 91, 93 (2) (575 SE2d 444) (2003). Therefore, the only means now available to McGruder for challenging his guilty plea is through a petition for writ of habeas corpus. See id.

3. McGruder argues that his sentence is void because the trial court amended the sentence in his absence. The record reveals that McGruder pled guilty to armed robbery and possession of a firearm during the commission of a crime and that the trial court sentenced him to a term of 15 years. The preprinted disposition form notes the guilty plea to both crimes, but in the sentence section of the form it states only “Fifteen (15) years.” At a hearing held less than a month later in the presence of McGruder’s counsel, but not McGruder himself, the trial court clarified McGruder’s sentence: “I’m going to sentence him to 10 on the armed robbery, 5 on possession of the firearm during the commission of the crime. Going to remold that sentence from 15 to 10, give him an extra 5. So that’s what I intended at the time. I intended for him to have 15 total years.”

[I]n instances where a defendant’s entire sentencing package has been vacated on appeal and, at resentencing, the trial court has full discretion to reconstruct the sentence and impose a more lenient punishment, the defendant retains a right to appointed counsel. On the other hand, where the defendant’s sentence is mandatory or fixed in such a way that, at resentencing, the trial court is without discretion, the resulting resentencing proceeding is purely ministerial, and it is unnecessary for the defendant to be present at the sentencing hearing or be represented by counsel.

(Citations and punctutation omitted.) Robertson v. State, 280 Ga. 885, 886 (635 SE2d 138) (2006). We hold that the court’s resentenc-ing here was purely ministerial and therefore could be performed in McGruder’s absence. See id. Moreover, there could be no harm because the amended sentence is the same as McGruder’s original sentence. See Hammond v. State, 277 Ga. App. 148, 149 (625 SE2d 503) (2005) (resentencing outside of defendant’s presence based upon proper merger ministerial); Westmoreland v. State, 156 Ga. App. 444 (2) (274 SE2d 801) (1980) (no harm in resentencing without defendant present where amended sentence reduced original sentence).

Decided October 15, 2010

Reconsideration denied December 14, 2010.

Willie McGruder, pro se.

Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       We will therefore not address McGruder’s claim that he received ineffective assistance of counsel since that claim was a ground asserted in his properly dismissed motions.

       Although the trial court dismissed McGruder’s motion to modify his sentence that was based on this same ground, we nevertheless address this enumeration to the extent that McGruder challenges the sentence as void. When a sentence is void, a trial court has jurisdiction to resentence the defendant at any time. See Jones v. State, 278 Ga. 669, 670-671 (604 SE2d 483) (2004).


text:
    A10A1423.
    BUNN v. THE STATE.
    (705 SE2d 180)
   SMITH, Presiding Judge.

A jury found Michael Shane Bunn guilty on two counts each of child molestation, aggravated child molestation, and cruelty to children in the first degree. Following the denial of his amended motion for new trial, Bunn appeals, alleging that the evidence was insufficient to sustain guilty verdicts on the two counts of cruelty to children and that the trial court erred in failing to define “maliciously” in its charge to the jury. Bunn also contends that he received ineffective assistance of counsel. Having reviewed each of these claims, we find no error and affirm.

The record reveals that Bunn supervised the victims, his two nieces, while their mother was away at work. T. B., the seven-year-old victim, testified that Bunn touched her private parts with his “weewee” on more than one occasion and that these events occurred at her mother’s home in the living room. The nine-year-old victim, K. B., testified that Bunn touched her in her “privates” and indicated that he did so with his penis and hand. She stated further that if she or her sister did not want to take off their pants, Bunn “would make us,” and that Bunn had touched her inappropriately “[t]en or eleven” times. K. B. explained that she observed Bunn touch T. B. inappropriately as well. The victims told their mother that while she was away at work, Bunn would make them “sit on the couch he pulls us to him and puts his hands down our pants on our privates.”

The therapist who conducted the forensic interview with the girls testified that T. B. told her Bunn “pulled her up on him in the living room on the couch, that it happened more than one time. She said she had seen it happen to [K. B.] . . . she was also asked to lick [Bunn’s] . . . penis.” The therapist testified further that K. B. told her Bunn had “pulled her up on him, as well. . . his private part had gone inside her private part as well as outside her private part, that he had moved around . . . that it happened every day from when he started watching them in August until several days before the interview.” A video of the forensic interviews was played for the jury.

A sexual assault nurse examiner testified that she conducted a sexual assault examination on both of the victims finding only “some generalized redness and other things that are normal,” and no evidence of specific injuries.

1. Bunn challenges only the sufficiency of the evidence to support his cruelty to children convictions. He contends that there was insufficient evidence that he maliciously caused the victims “cruel mental pain” as charged in the indictment.

OCGA § 16-5-70 (b) provides that “[a]ny person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”

(a) Bunn first argues that there was no evidence that he caused the girls cruel and unusual pain.

The determination of what is cruel or excessive physical or mental pain is to be made by the jury. “Cruel” and “excessive” are adjectives which inherently require a consideration of degree; the law does not set a bright line but leaves to the trier of fact, taking into account societal norms generally accepted, whether certain behavior inflicts “cruel” or “excessive” pain (in this instance, mental rather than physical pain). There will be a gray area where some would say it is and some would say it is not, and neither is wrong as a matter of law. There will be other areas on each end of the scale. . . . We must determine only whether the circumstances here, taking into account the evidence in favor of the finding and all reasonable inferences from that evidence, would prohibit the finding made by the jury.

(Citations, punctuation and footnotes omitted.) Sims v. State, 234 Ga. App. 678, 679-680 (1) (a) (507 SE2d 845) (1998). Moreover, “a determination of what constitutes excessive mental pain need not depend solely on the victim’s testimony.” (Citation omitted.) Alford v. State, 243 Ga. App. 212, 214 (3) (534 SE2d 81) (2000).

Here, both girls testified that Bunn touched them inappropriately on multiple occasions. T. B. testified that she felt sad about Bunn and that Bunn made her feel uncomfortable when he touched her. K. B. stated that Bunn’s actions made her feel uncomfortable. The victims’ mother testified that during the time Bunn watched the girls, K. B.’s grades dropped, she would not “pay attention in school,” and started stealing in school. She stated further that K. B. also became more aggressive with her sister T. B. during this time. This evidence was sufficient to support the jury’s finding that Bunn’s acts caused the girls cruel and excessive mental pain. See Chastain v. State, 239 Ga. App. 602, 604 (1) (a) (521 SE2d 657) (1999); Keith v. State, 279 Ga. App. 819, 822 (3) (632 SE2d 669) (2006) (evidence sufficient to support finding of cruel and excessive mental pain where victim became upset when recounting incident and had to go to counseling to help her cope).

(b) Bunn argues that the State presented no evidence that he acted with malice.

[MJalice in the legal sense imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Citation and punctuation omitted.) Chastain, supra, 239 Ga. App. at 604 (1) (a).

Bunn acknowledged that he was an authority figure to the girls and that they loved and trusted him. Just as in Chastain, malice can be inferred because the girls were children, relatively powerless, who depended upon Bunn “as an uncle and authority figure to care for [them] and to behave responsibly.” Id. Bunn should have known that his actions would cause the girls to feel “fear, isolation, confusion, and shame.” Id. We find no lack of evidence of malice.

2. Bunn contends that the trial court erred in failing to define the term “maliciously” as an element of the crime of cruelty to children in the first degree. But we have previously held: “ ‘Maliciously’ has such common understanding that there is no need to define it in the jury charge.” (Citations and footnotes omitted.) Ellis v. State, 245 Ga. App. 807, 808 (2) (539 SE2d 184) (2000). The trial court properly instructed the jury on the elements of the crime and the State’s burden to prove each element beyond a reasonable doubt. See id.

3. Bunn argues that his trial counsel was ineffective. To prevail on an ineffective assistance claim, Bunn must establish pursuant to Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984),

that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

(Citations and footnotes omitted.) Bruce v. State, 268 Ga. App. 677, 679 (603 SE2d 33) (2004). “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” (Citations and punctuation omitted.) Vaughn v. State, 301 Ga. App. 55, 60 (5) (686 SE2d 847) (2009).

(a) Bunn alleges that counsel did not adequately prepare for trial. He points to the motion for new trial testimony of counsel’s then supervisor, the circuit public defender, who stated that after Bunn’s trial, she reviewed the case file and found that counsel did not adequately prepare for Bunn’s case and that she had confronted counsel concerning her finding. Counsel’s supervisor stated further that the case activity log indicated that counsel spent only five hours out of court and seventeen hours in court preparing for the case, and she maintained that a case such as Bunn’s could not have been prepared in less than forty hours. The supervisor acknowledged, however, that the log was only an estimate.

Counsel testified that although he could not recall how much time he spent on Bunn’s case, he met with Bunn “more than [his] other clients,” and Bunn “never gave me any information. He basically complained about being in jail and said he shouldn’t be charged. And I didn’t get any help from him.” Counsel stated further that when he asked Bunn about any potential witnesses or defense theories, Bunn “always reverted to: ‘I’m not guilty. Why am I here?’ He provided me no names.” Counsel explained that, at some point, Bunn told him that the mother of the victims (Bunn’s sister) had been molested by her mother’s boyfriend in Florida and that he believed that the girls’ mother “was making this up through the children to get back at [Bunn].” Although counsel had little faith in Bunn’s theory, he nevertheless pursued it at trial.

“There exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel. Each case must be judged upon its own circumstances and in light of its own degree of complexity.” (Citation and punctuation omitted.) Benefield v. State, 231 Ga. App. 80, 81 (497 SE2d 650) (1998). Although counsel’s supervisor testified that typically 40 hours or more are needed for preparation of a child molestation case, no evidence was presented that 40 hours were needed to adequately prepare Bunn’s case in light of the particular circumstances and degree of complexity. This is especially true here, where the supervisor acknowledged that she did not read the trial transcript and was “not sure of the exact allegations or details” of the case, and where evidence showed that Bunn did not provide any assistance to his counsel in developing facts or defenses requiring time on his case. The trial court therefore did not err in concluding that Bunn failed to show that counsel did not devote an adequate amount of time for trial preparation.

(b) Bunn contends that trial counsel only viewed the DVD of the forensic interview once and failed to request a copy of the transcript of the victims’ forensic interview which would have allowed him to point out inconsistencies in the girls’ statements and their testimony at trial. But without a showing of the substance of those inconsistencies as well as a reasonable probability that the outcome of the trial would have been different had they been pointed out, Bunn has failed to satisfy the second prong of the Strickland test. See Lenderman v. State, 271 Ga. App. 883, 886 (611 SE2d 135) (2005).

(c) Bunn argues that counsel failed to cross-examine the child advocacy therapist and failed to consult with any experts concerning her interview techniques. Bunn, however, has failed to establish how the failure to cross-examine the therapist affected the outcome of the case. “The failure of trial counsel to employ evidence cannot be deemed to be ‘prejudicial’ in the absence of a showing that such evidence would have been relevant and favorable to the defendant.” (Citation and punctuation omitted.) Mitchell v. State, 220 Ga. App. 264, 266 (469 SE2d 707) (1996). Because Bunn failed to make any proffer of the witness’s testimony under cross-examination, it is impossible for him to show there is a reasonable probability that the outcome of the trial would have been different. Id.

Bunn also failed to point out how or why the therapist’s interview techniques were improper. “[A]bsent a proffer of what the testimony of his expert would have been at tried, [Bunn] cannot show that there is a reasonable probability that the outcome of the tried would have been different had his counsel teiken the suggested course.” (Citation, punctuation and footnote omitted.) Mora v. State, 295 Ga. App. 641, 648 (3) (d) (673 SE2d 23) (2009). Bunn therefore did not establish prejudice, and the trial court did not err in rejecting his claim of ineffective assistance of counsel. Id.

(d) Bunn argues that counsel failed to object to the therapist’s testimony that T. B. witnessed Bunn’s acts against K. B., and vice versa. He argues that such evidence is prohibited by Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998). In Woodard, the Georgia Supreme Court declared unconstitutional an amendment to the Child Hearsay Statute that allowed the admission of hearsay statements made by a child under the age of 14 who witnessed an act of physical or sexual abuse inflicted upon another. Id. at 321-323 (3). But Woodard is inapplicable here, because both girls were victims. See id. at 323 (outlining public policy reasons to support admission of hearsay statements of child victim). Therefore, any objection to this testimony would have been futile, and trial counsel’s failure to pursue a futile objection does not constitute deficient performance. See, e.g., Smith v. State, 303 Ga. App. 831, 835-836 (5) (695 SE2d 86) (2010); see also Woodard, supra.

(e) Finally, Bunn árgues that a statement made by the therapist was an impermissible opinion concerning the victims’ credibility, and that his trial counsel should have objected to the statement. The therapist stated that it “was good” that K. B. “was comfortable enough and felt like telling what had actually happened was important enough to go back” to correct her mistake in an earlier statement about the room in which the molestation occurred. The therapist explained that this was good because it demonstrated “resistance to suggestibility.” It is well established that

an expert may not testify as to his opinion as to the existence vel non of a fact (in this case, whether the child had been abused sexually) unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves.

(Citation omitted.) Allison v. State, 256 Ga. 851, 853 (5) (353 SE2d 805) (1987). The statement that Bunn complains of here is not a statement concerning whether, in the therapist’s opinion, the victims had been molested. See Hafez v. State, 290 Ga. App. 800, 801 (2) (660 SE2d 787) (2008) (statement that social worker was treating victim for “ ‘exhibiting intrusive thoughts and memories of abuse that are triggered by current events in . . . life’ ” was not an opinion that the victim had in fact been abused); Brownlow v. State, 248 Ga. App. 366, 368 (2) (a) (544 SE2d 472) (2001); compare Pointer v. State, 299 Ga. App. 249, 250-252 (1) (682 SE2d 362) (2009) (statement that evaluation “strongly suggests that [victim] had been ‘sexually abused as alleged’ ” was improper).

Decided October 27, 2010

Reconsideration denied December 14, 2010

Sheueli C. Wang, for appellant.

J. Bradley Smith, District Attorney, Amy M. Carter, Ryan C. Bramblett, Assistant District Attorneys, for appellee.

Judgment affirmed.

Mikell and Adams, JJ., concur.

       Bunn took the stand in his own defense and denied any wrongdoing.


author: Doyle, Judge.

text:
    A09A0687.
    ANTHONY et al. v. GATOR COCHRAN CONSTRUCTION, INC.
    (705 SE2d 295)
   Doyle, Judge.

Ray G. Anthony; Anthony Family Limited Partnership; Aqua Toy Store, Inc.; Anthony Trucking, LP; Anthony Aviation Center, Inc.; and Anthony Holdings International, LLC (collectively “Anthony Entities”), appealed from a judgment awarding $606,747.96 to Gator Cochran Construction, Inc. This Court affirmed the judgment, and the Anthony Entities appealed to the Supreme Court of Georgia, which remanded the case after vacating our judgment that a challenge to the verdict as inconsistent was waived. Because the trial court also deemed waived the challenge to the verdict and did not rule on that issue, we remand to the trial court for consideration of the issue in light of the Supreme Court’s opinion. The holding in Division 1 of our prior opinion that the evidence supported the entry of judgment against all of the Anthony Entities jointly and severally was not within the scope of the Supreme Court’s grant of the writ of cerioriari, and that portion of the trial court’s ruling is affirmed.

Decided December 14, 2010.

Johnston, Wilkin & Williams, William J. Williams, for appellants.

Jay M. Sawilowsky, for appellee.

Judgment affirmed in part and case remanded.

Adams and Blackwell, JJ., concur.

        See Anthony v. Gator Cochran Constr., 299 Ga. App. 126 (682 SE2d 140) (2009).

        See Anthony v. Gator Cochran Constr., 288 Ga. 79 (702 SE2d 139) (2010).

       See, e.g., Banks v. Echols, 302 Ga. App. 772, 778 (2) (691 SE2d 667) (2010) (“this Court cannot address any issue on which the trial court did not rule”); City of Statham v. Diversified Dev. Co., 250 Ga. App. 846, 849 (1) (550 SE2d 410) (2001) (remanding for consideration of issue not addressed by trial court).


author: Johnson, Judge.

text:
    A10A2264.
    ANSLEY et al. v. ANSLEY.
    (705 SE2d 289)
   Johnson, Judge.

This is a dispute between appellants Ansley & Sutton Construction Company, Inc. (A&S), Jeffrey Ansley, and Michelle Ansley, and appellee Marcia Ansley, as administrator of the estate of Kevin Ansley, the deceased brother of Jeffrey and Michelle. The administrator contends that Jeffrey, Michelle, and A&S are obligated by their shareholders’ agreement to purchase Kevin’s interest in A&S from the estate. Jeffrey and Michelle contend that Kevin breached their oral agreement to make wills devising their respective shares to the surviving siblings or sibling. The trial court granted partial summary judgment to the administrator on these issues, and Jeffrey, Michelle, and A&S appeal. We reverse because the alleged oral agreement did not merge into a subsequent written agreement, because the parol evidence rule did not preclude proof of the oral agreement, and because Jeffrey’s and Michelle’s counterclaims arising out of the breach of the alleged oral agreement were not barred by the statute of limitation.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

So viewed, the evidence shows that A&S and its two original shareholders entered into a Shareholders Agreement on November 19, 1987. Among other things, the 1987 Shareholders Agreement restricted the transfer of stock in A&S, was binding upon the parties and their respective executors, administrators, successors and assigns, and terminated upon A&S’s bankruptcy or the disposal of the shareholders’ stock after the removal of the transfer restrictions. One of the express purposes of the 1987 Shareholders Agreement’s transfer restrictions was to provide for the purchase by A&S of the stock of a deceased shareholder. Accordingly, upon the death of a shareholder, the decedent’s shares would be subject to the options to purchase otherwise provided in the agreement, but “[s]hould such options not be exercised, then [A&S] shall purchase or redeem all of the decedent’s shares . . . .”

On April 1, 1992, Kevin, Jeffrey, and Michelle acquired A&S and became equal one-third shareholders. On the same date the three shareholders and A&S entered into an addendum to the 1987 Shareholders Agreement (the “1992 Shareholders Agreement”) in which they each agreed to be bound by the terms of the prior agreement.

By late 1993 or early 1994, Kevin, Jeffrey, and Michelle became concerned about funding the buyout provisions adopted by the 1992 Shareholders Agreement and began discussing an alternative. They agreed that they would each devise their interest in A&S to the surviving sibling or siblings upon their death and that they would draw wills to effect that purpose. The agreement was not reflected in a writing.

In June 1994, Jeffrey signed a will containing the following provision:

In the event either of KEVIN and MICHELLE survives me, I give and bequeath to them as tenants-in-common, or to the survivor of them in the event only one (1) of them survives me, all the equity interest (or proceeds from the redemption of same) I may own at the time of my death in our marine construction business, including but not limited to all my capital stock in [A&S].

Also in June 1994, Kevin and Michelle met with the attorney who drafted Jeffrey’s will and they each confirmed a desire to include a provision in their wills which would effect a devise of their A&S stock to their surviving sibling or siblings upon their death. The attorney prepared wills for Kevin and Michelle containing the requested language, and he forwarded a draft to Kevin in October 1995. Michelle signed a will in August 1997 in which she devised her equity interest in A&S, or proceeds from the redemption of the same, to her surviving siblings. Kevin “did not come in to sign [his] will.” Kevin did, however, sign financial statements for purposes of A&S bank loans in 2000, 2001, 2002, 2003, and 2004 in which he represented he had a will.

At a special meeting of the board of directors on January 4, 2008, Kevin, Jeffrey, and Michelle signed minutes (the “2008 Shareholders Agreement”) evidencing that “to ensure the viability of the Company, [Kevin, Jeffrey, and Michelle] agreed that none of their spouses (present or future) nor any of their children (present or future) shall possess now or in the future, any interest (financial or otherwise) in the Company.” They further agreed to have their individual wills updated “with this express desire included in such Wills” and that their wills be updated and signed no later than December 2008. Kevin died intestate on August 10, 2008.

After Kevin’s death, the administrator sued A&S, Jeffrey, and Michelle seeking, among other things, a judgment that Jeffrey, Michelle, and A&S be required to purchase Kevin’s one-third interest in A&S from the estate in accordance with the buyout provisions of the 1987 Shareholders Agreement, as adopted by the 1992 Shareholders Agreement. A&S, Jeffrey, and Michelle denied the administrator’s claims, and Jeffrey and Michelle counterclaimed to specifically enforce the oral agreement to make a will or for breach of contract in the alternative. The trial court subsequently granted the administrator’s motion for partial summary judgment on her claim for enforcement of the buyout provision and on Jeffrey’s and Michelle’s counterclaim. This appeal followed.

1. A&S, Jeffrey, and Michelle argue that they are not bound by the buyout provisions adopted by the 1992 Shareholders Agreement because those provisions are no longer in effect. The 1987 Shareholders Agreement was not for a specific duration. A&S, Jeffrey, and Michelle contend that it nevertheless expired on November 19, 2007, by operation of OCGA § 14-2-732 (b) (3), which provides that an agreement authorized by that Code section is valid for no more than 20 years. Therefore, they maintain, because the 1992 Shareholders Agreement adopted the terms of the 1987 Shareholders Agreement, which expired on November 19, 2007, the 1992 Shareholders Agreement also expired on that date. We disagree.

OCGA § 14-2-732 was enacted in 2000, and as described in the official comment thereto “validates for nonpublicly held corporations various types of agreements among shareholders even when the agreements are inconsistent with the statutory norms otherwise contained in this Code.” OCGA § 14-2-732 is not expressly retroactive, and, pretermitting its application to shareholder agreements evidencing restrictions on the transfer of shares, we will not apply it to insert a material term into a 1987 agreement, the provisions of which were adopted by different parties in 1992. As a rule, “[a] newly enacted law cannot impair the obligations of an existing contract.”

2. A&S, Jeffrey, and Michelle also claim that the trial court erred in finding that the oral agreement to make a will was not enforceable because Jeffrey’s and Michelle’s claims were barred by the statute of limitation and because the oral agreement was superceded by the 2008 Shareholders Agreement. We agree.

Contracts to make a will are enforceable if supported by valuable consideration, and “[a]n oral contract to make a will also may be valid and enforceable if entered into before January 1, 1998. . . .” Although the trial court found that Jeffrey’s and Michelle’s counterclaims arising out of the alleged breach of the oral contract to make a will were untimely, their claims accrued upon Kevin’s death and were not barred by the statute of limitation.

The trial court also found that the oral agreement merged into the 2008 Shareholders Agreement and that it was not admissible as parol evidence to explain the written agreement. As a rule, “a prior or contemporaneous parol agreement, which contradicts, varies, or otherwise modifies a written agreement between the same parties and pertaining to the same subject-matter, is merged into the written agreement. . . .” Similarly, “the parol evidence rule prohibits the consideration of evidence of a prior or contemporaneous oral agreement to alter, vary or change the unambiguous terms of a written contract.”

However,

[a] party is entitled to prove the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transactions between them.

Here, the 2008 Shareholders Agreement does not purport to be the entire agreement between the parties through inclusion of a merger clause or similar language. The written agreement precluding spouses and children of the shareholders from having any interest in A&S, “now or in the future,” is consistent with the oral agreement. Further, the alleged obligation to devise under the oral agreement is a matter on which the 2008 Shareholders Agreement is silent. We conclude that the alleged oral contract does not come within the parol evidence rule in that it is “an independent and complete contract within itself and forms no part of the written contract. Neither does it alter in any respect the writing. It is collateral to, independent of, and distinct from the written contract.” Further, the alleged oral agreement’s “independence and its lack of inconsistency with the written contract cause it not to become merged with the written contract.”

The administrator asserts that, in addition to the reasons relied on by the trial court, the oral agreement is unenforceable because it conflicts with the 1987 Shareholders Agreement, as incorporated into the 1992 Shareholders Agreement. The evidence is sufficient, however, to establish the mutual intent of the existing shareholders to devise their shares, and their mutual consent to and actual notice of such disposition as an alternative to the buyout provisions incorporated into the 1992 Shareholders Agreement. Accordingly, a trier of fact could conclude that Kevin waived his rights to enforce inconsistent provisions of their prior shareholders’ agreement, including the buyout provision. “A waiver may be express, or may be inferred from actions, conduct, or a course of dealing. Waiver of a contract right may result from a party’s conduct showing his election between two inconsistent rights.” American Car Rentals v. Walden Leasing, relied on by the administrator, is distinguishable in that the contract at issue included a no waiver clause protecting the appellee from failure to insist on performance of any term or condition, and in that case “the parties proceeded according to the terms of the Agreement.”

3. A&S, Jeffrey, and Michelle further contend the trial court erred in failing to consider parol evidence in construing the 2008 Shareholders Agreement. We agree with the trial court that A&S, Jeffrey, and Michelle could not use parol evidence to vary the terms of the written agreement. Consistent with our analysis in Division 2, however, the parol evidence rule did not preclude proof of the alleged oral agreement, which was separate and distinct from the latter written contract.

In view of the foregoing, we conclude that the trial court erred in granting the administrator’s motion for partial summary judgment.

Judgment reversed.

Miller, C. J., and Phipps, P. J., concur.

Decided December 14, 2010.

Ronald C. Berry, for appellants.

Alan S. Lowe, Ellen Schoolar, for appellee.

       Kevin, Jeffrey, and Michelle also owned Ansley Brothers Dock Builders, Inc., a defendant in the administrator’s action and a named appellant, but Kevin’s shares in Ansley Brothers were not part of the administrator’s motion for partial summary judgment.

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

         Supchak v. Pruitt, 232 Ga. App. 680, 682 (1) (503 SE2d 581) (1998).

       “An agreement authorized by this Code section shall he: . . . Valid for no more than 20 years. Failure to state a period of duration or stating a period of duration in excess of 20 years shall not invalidate the agreement, but in either case the period of duration shall be 20 years.” OCGA § 14-2-732 (b) (3).

       See Ga. L. 2000, p. 1567. Shareholder agreements providing for the voting of shares or restrictions on the board of directors were contemplated by predecessor statutes in effect at the time of the 1987 and 1992 Shareholders Agreements, and such agreements were limited to a duration of 20 years, but A&S, Jeffrey, and Michelle do not rely on prior law. See OCGA § 14-2-731 (1992); Ga. L. 1968, p. 624.

       “[A]n agreement among shareholders, or an agreement between shareholders and the corporation may impose restrictions on the transfer or registration of transfer of shares of the corporation,” and “[a] restriction on the transfer or registration of transfer of shares may: . . . (2) [o]bligate the corporation or other persons (separately, consecutively, or simultaneously) to acquire the restricted shares.” OCGA § 14-2-627 (a), (d). No term limitation is contemplated by this statute, which was in effect at the time of the 1992 Shareholders Agreement. See Brown v. Momar, Inc., 201 Ga. App. 542, 545 (2) (411 SE2d 718) (1991) (“restrictions on the transferability of stock are enforceable in this State”).

        Marek Interior Systems v. White, 230 Ga. App. 518, 520 (1) (496 SE2d 749) (1998).

        Rushin v. Ussery, 298 Ga. App. 830, 832 (1) (681 SE2d 263) (2009). For purposes of summary judgment, the administrator does not contest the existence of the oral agreement.

       See OCGA § 9-3-25; Wallace v. Williams, 212 Ga. 692, 695 (2) (95 SE2d 369) (1956); Banks v. Howard, 117 Ga. 94, 96-97 (3) (43 SE 438) (1903) (in suit for breach of an agreement to make a will, “the death of the other party without making the will in accordance with his agreement is to be deemed a breach of the contract, and the statute of limitations will not begin to run until his death”).

        Indiana Truck Corp. v. Glock, 46 Ga. App. 519 (168 SE 124) (1933).

       (Punctuation and footnote omitted.) First Data POS v. Willis, 273 Ga. 792, 794 (1) (546 SE2d 781) (2001).

       (Citation and punctuation omitted.) Henry v. Blankenship, 275 Ga. App. 658, 659 (1) (a) (621 SE2d 601) (2005). Accord Namik v. Wachovia Bank of Ga., 279 Ga. 250, 251 (1) (612 SE2d 270) (2005); Langenback v. Mays, 205 Ga. 706, 711 (1) (54 SE2d 401) (1949).

       See Jones v. The Baran Co., 290 Ga. App. 578, 582 (660 SE2d 420) (2008).

       Compare Triple Net Properties v. Burruss Dev. &c., 293 Ga. App. 323, 327 (2) (a) (667 SE2d 127) (2008) (“An existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject-matter embraced by the original contract.”) (citation and punctuation omitted).

        Langenback, supra, 205 Ga. at 711 (1). See Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 62 (2) (240 SE2d 572) (1977) (“The test to determine whether the oral agreement is one which the law will permit to be plead and proved is whether the oral agreement constitutes a part of the written contract or whether, instead, it is a separate and distinct oral contract which is not inconsistent with the written contract. If the latter, it admits of pleading and proof.”) (citation and punctuation omitted).

        Langenback, supra, 205 Ga. at 711 (1).

        See Kusuma v. Metametrix, Inc., 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989) (“The question whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury. [Cit.]”).

       (Citation and punctuation omitted.) Id. See Park v. Fortune Partner, 279 Ga. App. 268, 272 (2) (b) (630 SE2d 871) (2006) (defendant waived right to enforce plaintiffs promises).

       220 Ga. App. 314 (469 SE2d 431) (1996).

       Id. at 316 (1) (a).

       See Andrews v. Skinner, 158 Ga. App. 229, 230 (279 SE2d 523) (1981) (“[P]arol evidence is admissible to explain an ambiguity in a written contract, although such evidence is inadmissible to add to, take from, or vary the writing itself. [Cits.]”).

       See OCGA § 24-6-2; Diamondhead Corp. v. Robinson, supra, 144 Ga. App. at 62 (2).


author: Mikell, Judge.

text:
    A10A0905.
    STONE MOUNTAIN COLLISION CENTER v. GENERAL CASUALTY COMPANY OF WISCONSIN.
    (705 SE2d 163)
   Mikell, Judge.

Stone Mountain Collision Center filed an action against its insurer, General Casualty Company of Wisconsin, alleging breach of its insurance contract. General Casualty moved for summary judgment, arguing that the complaint was barred by the two-year limitation period contained in the applicable insurance policy. The trial court agreed with General Casualty and granted its motion for summary judgment. On appeal, Stone Mountain Collision argues that General Casualty waived the limitation period. We disagree and affirm the judgment of the trial court.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Stone Mountain Collision purchased a commercial policy from General Casualty, which was effective from April 9, 2005 to April 9, 2006. The insurance policy provided that any action against the insurer must be “brought within 2 years after the date on which the direct physical loss or damage occurred.” Stone Mountain Collision suffered a loss from theft during November of 2005. Steve McClearn, owner of Stone Mountain Collision, informed General Casualty of the loss on January 16, 2006. In a reservation of rights letter dated February 7, 2006, Teresa Nabors, a claim analyst with General Casualty, informed McClearn that there was a problem regarding coverage and that although General Casualty would investigate the claim, it would not waive its right to assert as defenses the provisions in the policy.

On February 13, 2006, McClearn was instructed to send all future correspondence regarding his claim to Michael Manning of Independent Adjusters. On November 17, 2006, Manning sent a letter to McClearn offering to settle the claim at the actual cash value of $75,577.85, upon receipt of the proof of loss, and informed McClearn that if he replaced the tools within 180 days as provided by the policy, he may be able to claim some or all of an additional $17,533.97, which would be held by General Casualty. On January 23, 2007, Manning extended the same offer, enclosing another copy of the proof of loss form. On January 26, 2007, Manning sent another letter to McClearn, specifically rejecting counteroffers of $130,000 and $84,537.71, and extending the same offer made in the two previous letters. On May 17, 2007, Manning extended the deadline to purchase replacement tools to June 17, 2007, and restated the previous offer.

On March 3 and 12, 2008, Stone Mountain Collision’s attorney forwarded letters of representation to Manning asking that Manning contact him to resolve the case. In a letter to Nabors, the insurer’s claim analyst, on April 3, 2008, Stone Mountain Collision demanded $84,557 to settle the case, referencing prior conversations between McClearn and Manning, from which McClearn concluded that General Casualty would settle the case for $84,000. On April 29, 2008, Nabors forwarded another proof of loss form to Stone Mountain Collision, extending the same offer made by Manning and indicating that General Casualty would issue a check in that amount upon its receipt of the proof of loss. On June 20, 2008, Stone Mountain Collision sent Nabors the original sworn proof of loss but changed the claim amount to $84,287.58. On July 1, 2008, Nabors again restated the offer. On July 3, 2008, Stone Mountain Collision rejected General Casualty’s offer but indicated its desire to continue to negotiate. When the insurer failed to respond, Stone Mountain Collision filed a complaint on or about July 23, 2008. General Casualty filed a motion for summary judgment, which the trial court granted on the ground that the two-year contractual limitation period barred Stone Mountain Collision’s action.

On appeal, Stone Mountain Collision argues that the trial court erroneously granted summary judgment to General Casualty because a genuine issue of fact remains as to whether the insurer waived the limitation period. In support of its argument, Stone Mountain Collision relies on Auto-Owners Insurance Co. v. Ogden, in which the Supreme Court ruled that

[i]f the insurer never denied liability, but continually discussed the loss with its insured with a view toward negotiation and settlement without the intervention of a suit, whether or not this lulled the insured into a belief that the [limitations] clause in the contract was waived by the insurer can become a disputed question of fact for the jury.

The rule in Ogden comports with the universal rule that an insurer cannot take advantage of a limitation provision in the policy where, by its acts in negotiating toward settlement, it has led the policyholder to believe that he will be paid without filing a suit. But it is also true that

settlement negotiations do not always give rise to a jury question on whether the policyholder was led to believe that he need not file suit, even if they continue throughout the policy’s limitation period. Mere negotiation for settlement, unsuccessfully accomplished, is not that type of conduct designed to lull the claimant into a false sense of security so as to constitute a waiver of the limitation defense.

In Ogden, the insurance company admitted liability, issued a check to the insured to reconstruct his home, and instructed the insured to return a proof of loss within 15 days to receive the remaining amount due under the claim. In the instant case, how- . ever, there was never an agreement about what the insured would be paid. Rather, General Casualty extended the same offer several times, which Stone Mountain Collision rejected with various counteroffers. The last written communication between the parties occurred on May 17, 2007, when General Casualty gave Stone Mountain Collision 30 additional days to purchase replacement tools. The record contains no other evidence of negotiations between the parties before the limitation period expired, in November of 2007, from which Stone Mountain Collision could infer that General Casualty had agreed to extend the limitation period. Accordingly, we cannot conclude that the negotiations that occurred lulled Stone Mountain Collision into believing that it would not have to file suit.

[T]o conclude that the policy limitations have been waived or estopped, there must be an affirmative promise or other act waiving the limitation, or an actual or constructive fraud leading the insured to believe the limitation period would be enlarged, or lulling him into the security of actually thinking that the claim would in fact be paid without suit.

There is no evidence of such act or fraud in the instant case. Stone Mountain Collision argues that the fact that Nabors sent letters extending the offer after the expiration of the limitation period creates a jury question as to whether General Casualty waived the limitation period. But a claims adjuster is not authorized to waive a contractual limitation period without express authority from the insurance company, and Stone Mountain Collision points to no evidence that said authority existed. Stone Mountain Collision also urges us to consider the fact that General Casualty sent proofs of loss after the expiration of the limitation period, but an insurer does not waive its defenses by furnishing to its insured a blank proof of loss or receiving or acknowledging receipt of a proof of loss. Therefore, the evidence did not create a question of fact as to the issue of waiver, and we affirm the grant of summary judgment to General Casualty.

Decided September 10, 2010

Reconsideration denied December 15, 2010.

Douglas R. Daum, for appellant.

Carlock, Copeland & Stair, Hillary A. Shawkat, William P. Tinkler, Jr., for appellee.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

        Morrill v. Cotton States Mut. Ins. Co., 293 Ga. App. 259 (666 SE2d 582) (2008), citing Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The named insurer on the policy was Southern Guaranty Insurance Companies.

       275 Ga. 565 (569 SE2d 833) (2002).

       (Punctuation and footnote omitted.) Id. at 567 (2). See also Nee v. State Farm Fire & Cas. Co., 142 Ga. App. 744, 746-747 (236 SE2d 880) (1977) (issue of fact presented where the insurer sought a meeting to discuss the value of the claim within 45 days of the close of the limitation period but denied liability once suit was filed).

        Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 156 (1) (658 SE2d 909) (2008). Accord Morrill, supra at 262 (2) (a).

       (Punctuation and footnotes omitted). Sutton, supra at 156-157 (1); Morrill, supra at 263 (2) (a); Ga. Farm Bureau Mut. Ins. Co. v. Pawlowski, 284 Ga. App. 183, 184 (1) (643 SE2d 239) (2007) (“[elvidence that [an insurance company] investigated and offered to settle does not suggest that it tried to trick [its insured] into believing that it intended to enlarge the . . . limitation period”).

       Supra.

       Id. at 565.

       See Pawlowski, supra; OCGA § 33-24-40 (3) (an insurance company does not waive its defenses when it engages in negotiations to attempt to settle any loss or claim). See also Giles v. Nationwide Mut. Fire Ins. Co., 199 Ga. App. 483, 485 (3) (405 SE2d 112) (1991) (summary judgment appropriate where undisputed evidence showed that parties unsuccessfully concluded negotiations before limitation period expired and no evidence of promise, statement or other act to lead insured to believe limitation period would be enlarged). Compare Ga. Farm Bureau Mut. Ins. Co. v. Mikell, 126 Ga. App. 640, 642-643 (2) (191 SE2d 557) (1972) (waiver issue properly sent to jury where insured requested appraisal within limitation period, insurance company sent letter enclosing proof of loss and informing insured that he could demand appraisal within 60 days of insurer receiving proof of loss, then insurer informed insured that it was relying on limitation period that expired before 60 days referred to in its letter).

       (Citation and punctuation omitted.) Stapleton v. Gen. Accident Ins. Co., 236 Ga. App. 835, 838 (512 SE2d 645) (1999).

        Ogden, supra at 566 (1). The claims adjuster in Ogden sent a letter after the expiration of the contractual limitation period, indicating that the insurer would consider payment. Id.

       See OCGA § 33-24-40 (2).