text:
    A12A2321.
    DEKALB COUNTY BOARD OF TAX ASSESSORS v. PRESBYTERY OF GREATER ATLANTA, INC.
    (739 SE2d 764)
   Boggs, Judge.

The trial court wrote an excellent, thorough, complete, and correct order in granting appellee’s motion for summary judgment. We adopt the trial court’s order, set out below in full, verbatim, as our opinion in this case.

FINAL ORDER

“Appellant’s Motion for Summary Judgment and Appellee’s [Cjross Motion for Summary Judgment having come before the Court for hearing on May 9, 2012, after review of the record and hearing argument from the parties, the Court enters the following Order:

FINDINGS OF FACT

“Appellee is a Georgia non-profit corporation recognized as a bona fide tax exempt religious non-profit organization by the Internal Revenue Service. Appellee is the district-level governing body of the Presbyterian Church (U.S.A.) (‘PCUSA’), a national religious denomination. In 2010, when the Midway Presbyterian Church became defunct, the Appellee took ownership of the Midway Presbyterian Church property (‘Property’) in accordance with the Constitution of the PCUSA. It is the tax exempt status of the Property that is at issue in this case. The tax parcel number of the Property is 15 199 17 003 and the Property is commonly referred to as 3363 Midway Road, Decatur, DeKalb County, Georgia. A portion of the property contains a cemetery, which the parties agree is tax exempt. It is the remainder of the Property that Appellant claims is not tax exempt.

“Upon assuming ownership of the Property, Appellee attempted to sell the Property but was unable to find a ready, willing and able buyer. Faced with the obligations of maintenance, upkeep and other expenses associated with ownership of the property, Appellee leased the Property to Kingdom Fellowship Christian Church, Inc. (‘Kingdom Fellowship’) to defray the costs of ownership and to prevent the Property from sitting vacant. Kingdom Fellowship is recognized as a bona fide tax exempt religious non-profit corporation by the Internal Revenue Service. Kingdom Fellowship uses the Property as a place of religious worship. All other use of the Property by Kingdom Fellowship, such as religious instruction classes, meetings related to church business, and community outreach for the church, is all integral to the use of the Property as a place of religious worship.

“Under the lease agreement between Appellee and Kingdom Fellowship, the monthly rent payable by Kingdom Fellowship was $1,000.00 per month for the year 2011. The 2011 market rental rate for the Property was approximately $5,000.00 per month, exclusive of utilities and costs. Appellee does not realize a profit from the lease of the Property to Kingdom Fellowship.

“In 2011, Appellant withdrew the ad valorem tax exemption that had previously been granted on the Property. Appellee challenged the withdrawal of the exemption and the Board of Equalization found in favor of Appellee, concluding that the Property in its entirety is tax exempt. Appellant appealed the Board of Equalization decision to this Court.

CONCLUSIONS OF LAW

“The issue in this case is whether the non-cemetery portion of the Property qualifies for a tax exemption. [OCGA] § 48-5-41 (a) (2.1) (A) provides that ‘all places of religious worship’ shall be exempt from all ad valorem property taxes. It is undisputed that the Property is a place of religious worship, thus, the Property must be tax exempt unless some other provision of law specifically removes the Property from the tax exemption. Appellant argues that the Property is not tax exempt because the owner, Appellee, does not personally use the Property for religious worship; however, this Court finds no statutory requirement that the owner be the user of the property when dealing with a ‘place of religious worship’ tax exemption.

“It is the use of the property that governs the analysis of religious worship tax exemptions. The Georgia Court of Appeals resolved this issue in favor of granting the exemption in a case with facts that are materially indistinguishable from the facts of the case under consideration. In Pickens County Bd. of Tax Assessors v. Atlanta Baptist [Assn.], Inc., 191 Ga. App. 260 [(381 SE2d 419)] (1989), the Atlanta Baptist Association owned property upon which the Association itself did not worship but it rented the property out to adult and youth church groups of various denominations each of which conducted a religious worship program during their stay on the property. Focusing on the use of the property rather than the ownership of the property, the Court of Appeals concluded that the property was tax exempt as a matter of law under the religious worship exemption.

“Under [OCGA] § 48-5-41 (a) (2.1) (A) and Pickens, the Court concludes that the Property is tax exempt as a place of religious worship. This decision is consistent with the long-standing public policy of the State of Georgia to ‘encourage and advance religion.’ The Trustees of the First Methodist Episcopal Church, South v. The City of Atlanta, 76Ga. 181, [191] (1886).The Court does not find merit in Appellant’s argument that the Property is not entitled to tax exempt status because the Property is leased to another entity. [OCGA] § 48-5-41 (d) (1) provides that otherwise tax exempt property may become subject to taxation if it is rented, leased or otherwise used ‘for the primary purpose of securing an income thereon....’ The record reflects that no profit is realized from the lease to Kingdom Fellowship____This is not a case of a for-profit landlord leasing space to a church organization for profit. Rather, the uncontested facts show a religious non-profit corporation leasing the Property to another religious non-profit corporation at approximately 20% of the market rental rate without realizing a profit; thus, the Court concludes the ‘primary purpose’ of the lease is not to secure an income on the property.

Decided March 12, 2013.

Mark A. Thompson, for appellant.

Wilson, Morton & Downs, Stephen G. Quinn, Debra A. Golymbieski, for appellee.

“Having decided that the Property is tax exempt under [OCGA] § 48-5-41 (a) (2.1) (A) and Pickens, the Court need not address Appellee’s alternative theory of tax exemption under [OCGA §] 48-5-41 (a) (2.1) (B).

“Appellant’s Motion for Summary Judgment is hereby DENIED. Appellee’s [C] ross Motion for Summary Judgment is hereby GRANTED. [Trial court order ends.]”

Judgment affirmed.

Doyle, P. J., and Andrews, P. J., concur.

       As it did below, the Board erroneously relies upon cases construing OCGA § 48-5-41 (a) (4), pertaining to “institutions of purely public charity.” This case involves OCGA § 48-5-41 (a) (2.1) (A), “all places of religious worship,” and the trial court correctly applied the relevant law.

       See Kordares v. Gwinnett County, 220 Ga. App. 848 (470 SE2d 479) (1996).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A13A1044.
    CHARTER HR, INC. et al. v. PERRY.
    (739 SE2d 770)
   Ellington, Chief Judge.

The parties filed a consent motion, moving this Court to remand the instant case to the State Board of Workers’ Compensation so that the parties may seek the Board’s approval of a settlement agreement, pursuant to OCGA § 34-9-15.

The parties having agreed upon a compromise of the pending cause [of action], and to carry it out, it being necessary to have the judgment of the superior court affirming the award of the State Board of Workers’ Compensation reversed and the case remanded to the State Board of Workers’ Compensation for the purpose of effecting the settlement agreed on, and the parties having consented to this act by agreement filed, this [C]ourt, without looking into the record, will reverse the judgment of the court below so as to carry out the compromise. It is so ordered. The trial court is directed to remand this case to the State Board of Workers’ Compensation for the purpose of perfecting the settlement.

Decided March 12, 2013.

Speed, Seta & Waters, Eric L. Trivett, Anthony A. Adkins, for appellants.

Larry N. Hollington, for appellee.

(Citation and punctuation omitted.) Rakestraw v. Arkansas Best Corp., 171 Ga. App. 364 (320 SE2d 639) (1984).

Judgment reversed.

Phipps, P. J., and Branch, J., concur.


author: Miller, Judge.

text:
    A10A1850.
    GREENE COUNTY SCHOOL DISTRICT v. CIRCLE Y CONSTRUCTION, INC.
    (739 SE2d 801)
    Decided March 13, 2013.

      Harben, Hartley & Hawkins, J. Stanley Hawkins, Reagan G. Sauls, for appellant.

      Brenda H. Trammell, for appellee.
   Miller, Judge.

In Greene County School Dist. v. Circle Y Constr., 291 Ga. 111 (728 SE2d 184) (2012), the Supreme Court of Georgia vacated Division 1 of this Court’s opinion in Greene County School Dist. v. Circle Y Constr., 308 Ga. App. 837 (708 SE2d 692) (2011), that construed OCGA § 20-2-506. Therefore, we adopt the opinion of the Supreme Court as our own and vacate that portion of Division 1 of our earlier opinion that construed OCGA § 20-2-506.

Judgment affirmed in part and vacated in part.

Phipps, P. J., and McFadden, J., concur.


author: BARNES, Presiding Judge.

text:
    A12A1674.
    CONSIDINE v. MURPHY et al.
    (739 SE2d 777)
   BARNES, Presiding Judge.

Cecily Considine filed suit against George W. Murphy and Murphy & Mclnvale, PC. (collectively, “Murphy”), alleging that Murphy committed malpractice while serving as the receiver of a business partly owned by Considine. Along with his answer, Murphy filed a motion to dismiss, arguing that he was a court-appointed receiver and was therefore immune from suit. Two days later, the trial court signed an order granting the motion to dismiss, finding that “because Defendants were acting in their capacity as a court appointed receiver, they are entitled to official immunity.” The order was filed with the clerk of court six days after that. Considine appeals, arguing among other things that the trial court violated due process by dismissing the action without giving her notice and an opportunity to respond. We agree that the trial court erred in ruling on the motion to dismiss without giving Considine an opportunity to respond, and therefore reverse and remand for further proceedings consistent with this opinion.

We review de novo a trial court’s order dismissing a complaint. Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009).

When the sufficiency of a complaint is questioned, the allegations in the complaint must be construed in the light most favorable to the plaintiff and with all doubts resolved in the plaintiff’s favor. Unless the allegations when so viewed disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts, the motion to dismiss should not be granted.

(Citation and punctuation omitted.) Vautrot v. West, 272 Ga. App. 715, 720 (3) (613 SE2d 19) (2005). “If, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied.” Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

Here, Considine alleged that Murphy breached his contract of engagement and his fiduciary duty to the business for which he served as the receiver, acted with gross negligence, and committed wilful and wanton misconduct. Murphy moved to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction under OCGA § 9-11-12 (b) (1) and that Considine failed to plead fraud with particularity under OCGA § 9-11-9 (b). The trial court found that Murphy was entitled to official immunity from suit as a court-appointed receiver, citing Cameron v. Lang, 274 Ga. 122 (549 SE2d 341) (2001), and dismissed the complaint.

Considine contends on appeal that the trial court violated her right to due process by ruling on the motion to dismiss before 30 days passed and without giving her a chance to respond. A trial court generally should allow a party 30 days to respond to a motion and to any evidence submitted in support thereof. See Uniform Superior Court Rule (USCR) 6.2. “Where evidence is not required, a court has the discretion to rule on a motion to dismiss before the 30 days required by USCR 6.2 expires. Phillips v. McCroskey, 234 Ga. App. 87, 88 (2) (506 SE2d 388) (1998).” Dearing v. State of Ga., 243 Ga. App. 198, 203 (3) (532 SE2d 751) (2000). Atrial court has the discretion to rule before 30 days after the motion was filed; however, it must still afford the plaintiff notice and an opportunity to be heard first. In Kidd v. Unger, 207 Ga. App. 109, 110-111 (2) (427 SE2d 82) (1993), for example, we found no error in the trial court’s ruling on the defendant’s motion to dismiss without waiting 30 days after the motion was filed, because the court did not consider matters outside the pleadings but ruled “solely on the issue of subject matter jurisdiction, a matter contained wholly within the purview of the pleadings.” In that case, however, the trial court held a hearing before dismissing the complaint, and the appeal does not address any issues of notice or evidence. See id.

Murphy argues that the trial court was authorized to dismiss the complaint without giving Considine an opportunity to respond because in Considine’s first complaint against him, the trial court held a hearing on the issue of whether he was a court-appointed receiver entitled to immunity, but Considine dismissed that complaint before the trial court ruled. Thus, Murphy argues, even if Considine had been given an opportunity to respond to the motion to dismiss in this case, “it would not have changed the state of the record or the disposition of dismissal.” Further, he asserts, the trial court in this case was the trial court that appointed Murphy to be the receiver in the underlying case, and therefore, even if she had been given notice and an opportunity to respond, nothing she could say would have changed the outcome.

The record in this case, however, contains only documents related to the case that was dismissed. “Because this court cannot consider factual allegations in a brief which are not supported by the record, we cannot consider [Murphy’s] claims.” D.P.S. Indus. v. Safeco Ins. Co. of America, 210 Ga. App. 289, 290 (1) (435 SE2d 762) (1993). The facts established by the appellate record before us are that Considine filed a complaint, Murphy answered and moved to dismiss the complaint, and the trial court granted the motion without giving Considine notice or an opportunity to respond. Given the record in this case, the trial court erred in ruling on the motion to dismiss less than 30 days after it was filed without giving Considine notice and an opportunity to be heard.

Decided March 13, 2013.

Jeffrey M. Barnes, for appellant.

Carlock, Copeland & Stair, Brian S. Spitler, for appellees.

Accordingly, we reverse the trial court’s grant of the motion to dismiss and remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

McFadden and McMillian, JJ., concur.

       We note that the parties sought to amend the appellate record with documents from the previous case that Considine dismissed, but we denied the motions because those documents were not part of the trial court record in this case.


author: Branch, Judge.

text:
    A12A1732.
    PARKER v. THE STATE.
    (741 SE2d 159)
   Branch, Judge.

Cedric B. Parker was tried by jury and convicted of burglary, aggravated battery, aggravated assault, robbery by intimidation, and robbery by force. Following the denial of his motion for new trial, Parker appeals. He challenges the sufficiency of the evidence of identification, and he contends the trial court erred with regard to awarding restitution. We affirm his conviction but vacate the restitution order and remand for a hearing on that issue.

1. When the appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence” or resolve conflicts in the testimony; instead they defer “to the jury’s assessment of the weight and credibility of the evidence.” (Citation omitted.) Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010). See also Glaze v. State, 317 Ga. App. 679, 680-681 (1) (732 SE2d 771) (2012). Appellate courts determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

Construed in favor of the convictions, the evidence shows that Parker knocked on 85-year-old Esther Eckstein’s door and asked for something to eat and drink. Eckstein had seen Parker twice before, when he previously asked her for money and had a conversation. Eckstein took Parker some food outside, but when she went to the kitchen to get water, Parker appeared in the living room and refused Eckstein’s protests to get out of the house. Eckstein retreated to her bedroom in an attempt to get away, but Parker followed her. When Eckstein sat on the bed, Parker pulled off Eckstein’s diamond rings from her fingers so hard that her arm became bruised in the process; Eckstein testified that the rings were valued at $10,000. Parker demanded money and threatened to rape Eckstein if she failed to comply. Parker took some costume jewelry from Eckstein’s dresser and $20 from Eckstein’s purse against her will. At some point, Parker grabbed Eckstein by the neck from behind and pushed her down; Eckstein collapsed to the floor, breaking her hip. Either at the same time or at another point, Parker choked Eckstein, bruising her throat and leaving her with pain that continued through the time of trial. Eckstein eventually fainted and was found by a family member who called for an ambulance.

Eckstein had at least 30 minutes to observe Parker during the crimes. She testified that Parker was wearing a cap and had the sides of his head shaved. She also described a distinctive jacket that Parker was wearing. Eckstein identified Parker in court as the perpetrator. The State introduced a jacket that Parker admitted was his, and Eckstein identified it as the jacket Parker was wearing on the day of the crimes. Eckstein’s neighbor identified Parker as the person to whom he saw Eckstein talking that morning. Parker testified and admitted that at the time of the incident he wore his hair “skinned” or cut short all the way around the sides and that he kept a cap on.

Parker challenges the sufficiency of the evidence of identification and contends the State failed to exclude a reasonable theory of innocence — that another suspect committed the crime. Among other things, he points to evidence that Eckstein failed to pick him out of a photographic lineup. But the issue of identification was fully presented to the jury including the possibility of misidentification. In addition to the evidence set forth above, the jury was given evidence that Eckstein’s neighbor initially identified another suspect but eventually identified Parker as the suspect and that the investigation failed to produce any useful fingerprint evidence. Parker also was allowed to present the testimony of a police officer that he initially investigated a different suspect who appeared to match Eckstein’s description. The jury was able to compare Eckstein’s description of the perpetrator with both Parker and a picture of the other suspect.

In sum, sufficient evidence was presented to identify Parker as the assailant: the victim and a neighbor identified Parker, the victim identified Parker’s jacket, and the victim’s description of Parker’s hair and hat matched Parker’s own description. And the jury was presented all other evidence concerning Parker’s possible misidentification. Arguments about discrepancies in the victim’s testimony and credibility and other factual issues “relate entirely to matters within the exclusive province of a jury.” (Citation and punctuation omitted.) Smith v. State, 216 Ga. App. 415, 416 (1) (454 SE2d 615) (1995). “Determining the credibility of witnesses and resolving conflicts goes to the weight of the evidence and is for the jury’s consideration.” (Citation and punctuation omitted.) Id. Our conclusion also resolves Parker’s argument that the State failed to exclude the possibility that the other suspect committed the crime.

Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Citation and punctuation omitted.) Wilson v. State, 275 Ga. 53, 56 (1) (562 SE2d 164) (2002).

2. Following Parker’s conviction, the court sentenced him to a total of twenty-seven years, with seventeen to serve followed by ten years on probation. Immediately after announcing the sentence and without input from the prosecutor or Parker, the court added the following: “Although it may not be collectable, the testimony is she lost ten thousand dollars worth of personal property. Restitution is ordered in that amount.” The court did not conduct a hearing or take any evidence on the matter of restitution. The judgment shows that Parker was ordered to pay the restitution as a condition of his probation. On appeal, Parker argues that the trial court erred (1) by failing to hold a hearing to consider the factors required by OCGA § 17-14-10 and (2) because the evidence was insufficient to establish fair market value. The State argues that Parker waived any objection to the amount of restitution ordered by failing to object when the restitution order was announced.

Under the current law of restitution, Parker was not required to take any affirmative action to trigger a hearing on restitution. Given that restitution was ordered as a part of Parker’s probation, both OCGA §§ 42-8-35 (a) (7) and 17-14-7 (b) are applicable to this case. The first of these Code sections provides that the restitution amount must be adjudicated if the amount of damage or loss caused by the probationer “is in dispute”:

Unless otherwise provided by law, no reparation or restitution to any aggrieved person for the damage or loss caused by the probationer’s offense shall be made if the amount is in dispute unless the same has been adjudicated[.]

OCGA § 42-8-35 (a) (7). This Court has interpreted this clause to mean that, “as a prerequisite to [a restitution] adjudication, the defendant must dispute the amount of restitution ordered by the trial court.” (Emphasis supplied.) Williams v. State, 180 Ga. App. 854, 856 (3) (a) (350 SE2d 837) (1986). The second of these Code sections — OCGA § 17-14-7 (b) — which was enacted in 2005, however, provides that “[i]f the parties have not agreed on the amount of restitution prior to sentencing,” the ordering authority must hold a hearing on the matter. Under the plain language of this Code section, the trigger for a hearing is the absence of a showing that the parties have agreed on the amount of restitution, and the determination is to be made “prior to sentencing,” not after restitution is ordered by the trial court. There is, therefore, a conflict between the two statutes regarding the trigger for a hearing on restitution.

Although appellate courts should attempt to construe newer statutes “in connection and in harmony with the existing law,” Lamad Ministries v. Dougherty County Bd. of Tax Assessors, 268 Ga. App. 798, 801 (1) (602 SE2d 845) (2004), where an actual conflict exists, “the most recent legislative expression prevails.” (Punctuation omitted.) Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19, 20 (2) (608 SE2d 639) (2005). See also Gunn v. Balkcom, 228 Ga. 802, 804 (188 SE2d 500) (1972) (“the latest expression of the legislative intent”).

Accordingly, in the absence of a showing that the parties have “agreed on the amount of restitution prior to sentencing,” a hearing to determine restitution is required. See also McCart v. State, 289 Ga. App. 830, 832 (1) (658 SE2d 465) (2008) (“[A] hearing on the issue of restitution is . . . required if the parties cannot agree on an amount prior to sentencing.”) (citing OCGA § 17-14-7 (b)). Decisions of this Court that require the defendant to dispute the amount of restitution — either before or after the court orders restitution — to trigger a hearing on restitution have been superseded by a change in the law and are therefore distinguishable. See, e.g., Woods v. State, 205 Ga. App. 500, 501 (422 SE2d 670) (1992) (because appellant did not request a hearing on the amount of restitution or contest the State’s evidence of damages appellant may not challenge restitution amount); Patrick v. State, 184 Ga. App. 260, 261 (2) (361 SE2d 251) (1987) (court did not err in failing to adjudicate restitution amount since defendant did not dispute the sentence at the time it was imposed); Williams, 180 Ga. App. at 855-856 (3) (a) (“as a prerequisite to such an adjudication, the defendant must dispute the amount of restitution ordered by the trial court”); Johnston v. State, 165 Ga. App. 792, 793 (2) (302 SE2d 708) (1983) (defendant entitled to adjudication of amount of restitution only when amount is in dispute); Cobb v. State, 162 Ga. App. 314, 316 (4) (291 SE2d 390) (1982) (restitution properly imposed without adjudication given defendant failed to dispute or contest amount ordered by trial court); Johnson v. State, 156 Ga. App. 511 (274 SE2d 669) (1980) (“Pursuant to this statute, a defendant who does not agree to the amount of restitution ordered by the trial court is normally required to contest the issue at the time the condition is imposed.”).

In this case, there is no indication that the parties agreed on the amount of restitution prior to sentencing. The court simply announced the restitution order during sentencing without a hearing or any discussion whatsoever, and without any input from the defendant. Compare Ezebuiro v. State, 308 Ga. App. 282, 285 (2) (a) (707 SE2d 182) (2011) (waiver where defendant was allowed to offer argument on restitution and did not object with proceeding to decide restitution at that time); Futch v. State, 314 Ga. App. 294 (723 SE2d 714) (2012) (following Ezebuiro)] Cameron v. State, 295 Ga. App. 670, 671 (2) (673 SE2d 59) (2009) (after colloquy on restitution and consultation with counsel, defendant acquiesced in restitution order by agreeing to proceed without a hearing to secure a more lenient sentence). We therefore vacate the order of restitution and remand for a hearing on the matter in accordance with OCGA § 17-14-1 et seq.

Decided March 13, 2013.

Robb G. Hunter, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Miller, P. J., and Ray, J., concur.

       This other suspect, who also lived in the neighborhood, had been seen by officers who canvassed the neighborhood after the crimes, and one officer took the other suspect’s picture. The jury learned that when the police initially questioned Eckstein’s neighbor about whom he had seen talking to Eckstein that morning, the neighbor looked at the picture of the other suspect and said, that’s him. The jury learned that officers questioned this other suspect but that they did not search his house. And Parker introduced a picture of the other suspect into evidence.

       See OCGA §§ 17-14-3 (a) (courts required to order restitution under Chapter 14 of Title 17); 17-14-3 (b) (if offender placed on probation under Chapter 8 of Title 42, “restitution ordered under this Code section shall be a condition of that probation, sentence, or order”); 17-14-19 (restitution under Article 1 of Chapter 14 of Title 17 “shall not be construed to limit or abrogate any power of any court... to place other conditions... on any relief in the nature of suspension of sentence, probation, parole, pardon, or restoration of rights”). Compare OCGA § 17-14-3 (restitution may be ordered “in addition to any other penalty imposed by law”); Callaham v. State, 317 Ga. App. 513, 519 (2) (b) (732 SE2d 88) (2012).

       The Crime Victims Restitution Act of 2005 became effective on July 1 of that year, and OCGA § 17-14-7 (b) was added at that time. Ga. L. 2005, p. 88, §§ 1, 8. Compare Ga. L. 1980, p. 1382, § 1.

       At any such hearing, the court is required to consider the factors set forth in OCGA § 17-14-10.


author: MILLER, Presiding Judge.

text:
    A12A1817.
    DeMARCO et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION.
    (739 SE2d 779)
   MILLER, Presiding Judge.

Philip and Patricia DeMarco filed suit against the Georgia Department of Transportation (“GDOT”) for personal injuries that Mr. DeMarco sustained in a car accident. The DeMarcos alleged that GDOT negligently designed and maintained the roadway where the accident occurred by failing to provide adequate drainage, and that the accident was caused by water that had accumulated on the road. GDOT moved for summary judgment, arguing that there was no evidence that the roadway was negligently designed or maintained, and that there was no evidence of causation since there was no evidence of pooling or standing water. The trial court granted GDOT’s motion. On appeal, the DeMarcos contend that the trial court erred in granting summary judgment to GDOT since the evidence presented genuine issues of material fact as to GDOT’s negligent design and maintenance. The DeMarcos also contend that factual issues remain regarding proximate causation. For the following reasons, we affirm.

“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. On appeal from a trial court’s grant of summary judgment, we review the evidence de novo and in a light most favorable to the nonmoving party.” (Footnotes omitted.) Stevens v. Dept. of Transp., 256 Ga. App. 656 (572 SE2d 1) (2002).

So viewed, the evidence shows that the subject accident occurred on July 29, 2007, at the intersection of Georgia Highway 38 (“SR 38”) and Ben Couch Road. SR 38 had five lanes comprised of two eastbound lanes, one center lane, and two westbound lanes. Mr. DeMarco was sitting in his vehicle in the center lane waiting for traffic to clear so that he could make a left-hand turn. Mr. DeMarco stated that it had been raining heavily earlier in the day and was raining a fair amount at the time he was driving his vehicle.

At the same time that Mr. DeMarco was waiting to make his turn, Jesus Esparza-Castillo was traveling in the opposite direction in a westbound lane. As Esparza-Castillo traveled along the slight curve of the roadway, he lost control of his vehicle and struck Mr. DeMarco’s vehicle. The impact of the collision sent Mr. DeMarco’s vehicle into the eastbound traffic, where he was struck by another vehicle. As a result of these collisions, Mr. DeMarco suffered severe injuries.

Thereafter, the DeMarcos filed suit against GDOT, alleging that GDOT negligently designed and maintained the roadway by failing to provide adequate cross-slope and proper super-elevation to allow rainwater to safely drain from the road’s surface. In support of their claims, the DeMarcos submitted affidavits from two experts, who both opined that the design of the roadway allowed water to pool on the roadway in amounts unsafe for driving conditions. GDOT denied liability, and moved for summary judgment on the grounds that the DeMarcos failed to present evidence showing that its design or maintenance of SR 38 violated the applicable standards, and no evidence showed that standing water was the proximate cause of the accident. Following a hearing, the trial court granted GDOT’s motion for summary judgment.

Pretermitting the DeMarcos’ contentions as to whether GDOT negligently designed or maintained the roadway, there is no evidence showing that any alleged defect was the proximate cause for the accident.

To prevail on a motion for summary judgment, a defendant “must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim.” (Footnote omitted.) Jones v. Bd. of Regents of the Univ. System of Ga., 262 Ga. App. 75, 76 (585 SE2d 138) (2003). Evidence of causation is an essential element of a negligence claim. See Johnson v. Dept. of Transp., 245 Ga. App. 839 (538 SE2d 879) (2000). (Citations and punctuation omitted.) Lay field v. Dept. of Transp., 280 Ga. 848, 849 (1) (632 SE2d 135) (2006). “While the issue of proximate cause is generally a question of fact for the jury, it may be decided as a matter of law where the evidence is clear and leads to only one reasonable conclusion — that defendants] acts were not the proximate cause of the plaintiffs’ injury.” (Citation and punctuation omitted.) Watson v. Marshall, 212 Ga. App. 206, 208 (2) (441 SE2d 427) (1994).

Whether proximate cause exists in a given case is a mixed question of law and fact. It requires both factfinding in the “what happened” sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are most appropriately made by a jury upon appropriate instructions from the judge.

In this case, GDOT presented evidence showing the absence of standing water at the time of the accident. Notably, photographs taken at the scene of the accident show no standing water on the roadway. The accident photographs were direct evidence that no standing water was present on the roadway. See former OCGA § 24-1-1 (3) (2011) (direct evidence means evidence which immediately points to the question at issue); see also Karwacki v. Ga. Dept. of Transp., 276 Ga. App. 628, 630 (624 SE2d 171) (2005) (officer’s testimony as to road condition on the day of the collision constituted direct evidence).

Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

(Footnote omitted.) Karwacki, supra, 276 Ga. App. at 630.

The DeMarcos failed to present evidence contradicting the photographs. There is no testimony from any witness stating that there was standing or pooling water on the roadway. While Mr. DeMarco testified that the road was very wet due to heavy raining throughout the day, he did not remember seeing any standing water on the roadway at the time of the accident. The DeMarcos otherwise point to no direct evidence refuting the evidence depicted in the photographs, and the circumstantial evidence in this case is consistent with the photographs. While both of the DeMarcos’ experts opined that EsparzaCastillo lost control of his vehicle because he hydroplaned, neither expert indicated that Esparza-Castillo hydroplaned because of the presence of standing water caused by defects in the roadway. Indeed, both experts admitted that they had no knowledge of the amount of water on the roadway at the time of the accident. Moreover, EsparzaCastillo was cited for driving too fast under the conditions. The fact that Esparza-Castillo hydroplaned is consistent with the fact that it was raining heavily, and that he was driving too fast for those conditions. Evidence that Esparza-Castillo hydroplaned during a heayyrain, however, is not inconsistent with GDOT’s direct evidence that there was no standing water on the roadway at that time. See Rosales v. Davis, 260 Ga. App. 709, 712 (580 SE2d 662) (2003) (“Circumstantial evidence has no probative value to establish a fact where it is consistent with direct, unimpeached evidence showing the nonexistence of such fact.”) (citation omitted). Since the record before this Court shows that there was no standing water on the road when Esparza-Castillo lost control of his vehicle, the jury could not draw an inference that the proximate cause of the accident was due to standing water. See Johnson, supra, 245 Ga. App. at 840 (ruling that GDOT was entitled to summary judgment where plaintiffs failed to present evidence supporting their claim that a vehicle lost control because of hydroplaning due to standing water). Accordingly, the trial court did not err in granting summary judgment to GDOT.

Decided March 13, 2013

Savage, Turner, Pinson & Karsman, Brent J. Savage, for appellants.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Claude M. Sitton, Assistant Attorney General, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Mrs. DeMarco sought damages for loss of consortium.

       It is worth noting that pictures taken by one of the DeMarcos’ experts during a subsequent rainstorm also do not show the presence of standing water in the lane that Esparza-Castillo was traveling in before he struck Mr. DeMarco’s vehicle.


text:
    A12A1820.
    NORTON v. THE STATE.
    (739 SE2d 782)
   Branch, Judge.

Frank Edwin Norton was tried by a Cherokee County jury and convicted of trafficking in methamphetamine, possession of methamphetamine both on his person and in his urine, and possession of a drug related object. He now appeals from the denial of his motion for a new trial, asserting that the trial court erred in admitting similar transaction evidence obtained during an illegal search of his person and during a police interview conducted in violation of his Miranda rights. Norton further contends that he received ineffective assistance of trial counsel. We find no error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence, and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that in May 2009, Norton was brought into the emergency room of a local hospital in a semi-conscious state. Emergency room personnel followed the hospital’s standard procedure for cases such as Norton’s, which included undressing the patient, searching his clothing for property, and inventorying any property found. When hospital employees followed this protocol with respect to Norton, they discovered a pipe used for smoking methamphetamine, a small bag containing 1.03 grams of methamphetamine, and a larger bag containing 47.6 grams of methamphetamine. Hospital personnel then contacted law enforcement, and Michael Parker, a narcotics agent with the Cherokee County Sheriff’s office, responded to the scene.

At the hospital, Parker interviewed Norton’s girlfriend, who stated that Norton used methamphetamine and that he ingested the drug by smoking it in a pipe. Based on this information, and given the items found on Norton’s person, Parker obtained a search warrant for Norton’s blood and urine. Tests run on Norton’s urine were positive for methamphetamine. Following his release from the hospital, Norton was arrested and charged with the crimes at issue.

During trial, the State was allowed to introduce similar transaction evidence involving charges against Norton resulting from an earlier, April 2009 execution of a search warrant at his girlfriend’s home. When police went to the residence to execute the warrant, they knocked on the front door, and Norton answered. After the lead officer, Agent Mayfield, identified himself as law enforcement and presented Norton with the search warrant, Norton responded by attempting to close the door. Mayfield stuck his foot in the door to prevent its closing and asked Norton, who appeared to be deliberately concealing the left side of his body, to show his hands. Norton refused, so Mayfield drew his weapon, ordered Norton to back away from the door, and he and the other officers present forced their way into the home. Once the officers entered the house, Deputy Pope “took control of” Norton. Pope testified that she ordered Norton several times to show his hands, but that he ignored these orders and kept moving his hands “like he was going for his pockets.” She therefore handcuffed Norton and performed a patdown of his person because she believed he was attempting either to access a weapon or to access and destroy evidence. As a result of the patdown, Pope discovered a methamphetamine pipe in Norton’s back left pocket. Norton was subsequently interviewed at the scene by Mayfield. During that interview, Norton admitted he used methamphetamine and agreed to provide officers with a urine sample, which tested positive for methamphetamine.

Following his conviction on the charges arising from his May 2009 arrest, Norton filed a motion for a new trial, which was denied. This appeal followed.

1. Norton contends that the trial court erred in denying his pre-trial motion to exclude the similar transaction evidence. We disagree.

Norton’s motion to exclude this evidence was based on a defect in the search warrant, which Norton alleges rendered the search of his girlfriend’s home, and the resulting search and seizure of Norton, illegal. At the hearing on his motion, Norton introduced evidence showing that the application for the warrant specified that law enforcement was looking for, among other things, methamphetamine. The warrant itself, however, authorized a search for marijuana, rather than methamphetamine. Norton claims that this defect in the warrant rendered it invalid and the execution of it illegal. We disagree.

Under Georgia law, “[n]o search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.” OCGA § 17-5-31. The only evidence as to the discrepancy between the warrant application and the warrant itself came from Mayfield, who prepared both documents. Mayfield explained that this discrepancy resulted from a typographical error on his part. Mayfield also testified that he knew the purpose of the warrant was to search for methamphetamine and related materials, as opposed to marijuana, and that the officers executing the warrant went to the premises looking specifically for methamphetamine.

The trial court obviously found this testimony credible and as a reviewing court we must accept that determination, absent any showing that it was clearly erroneous. Carlton v. State, 251 Ga. App. 339, 340 (1) (554 SE2d 318) (2001). No such showing has been made, and the evidence of record supports the trial court’s conclusion that the single-word discrepancy between the warrant application and the warrant itself resulted from a typographical error and was “not so material as to destroy the integrity of the [application] or the validity of the warrant.” (Punctuation and footnote omitted.) Carson v. State, 314 Ga. App. 515, 516 (1) (a) (724 SE2d 821) (2012) (warrant not invalid where affidavit in support thereof identified someone other than defendant as the suspected shooter; the error was typographical, occurred only once in the six-page affidavit, and the remainder of the affidavit correctly identified defendant as the suspected shooter). See also Lester v. State, 278 Ga. App. 247, 249 (1) (628 SE2d 674) (2006) (typographical error in officer’s warrant affidavit which resulted in the wrong address being given for the premises to be searched did not invalidate warrant; “other elements of description [were] sufficiently particular to identify the premises to be searched”) (citation omitted).

2. During trial, Norton again attempted to exclude evidence concerning the statements he made to police following their search of his girlfriend’s house, arguing that the interview at which he made these statements violated his Miranda rights. The trial court held a Jackson-Denno hearing on this motion, at which time an audio recording of Norton’s interview was played for the judge. The recording reflects that at the beginning of the interview, Mayfield read Norton the waiver of rights form, which included a recitation of each of Norton’s Miranda rights. After reading Norton each of his rights, Mayfield paused and asked Norton if he understood that right, and each time Norton responded affirmatively. The officer then asked Norton to read the last paragraph of the form aloud, and Norton did so, stating:

I understand my rights. Having these rights in mind, I am willing now to talk about matters which I have knowledge of which relate to possible violations of Georgia law. I discuss these matters freely. I have not been threatened. I have not been promised anything. I have not been forced in any way to answer any questions or make any statements.

Mayfield then asked Norton if he understood the form, and Norton responded, “Yes, I think it gives me the right not to say anything if I don’t want to.” The officer indicated that Norton’s understanding was correct, and then asked Norton to sign the waiver form. Before he signed, however, Norton stated, “the part [of the form] that bothers me is it says 1 am now willing to talk’... that don’t [sic] disavow everything else I said [does it]?” Mayfield responded that the sentence did not mean that Norton was refuting anything else he had said. The officer also told Norton that if he did not feel comfortable discussing any of the agent’s questions, he should just refuse to answer rather than lie to law enforcement. Norton executed the waiver form, and the interview proceeded.

Norton’s motion to suppress was based on his question to May-field as to whether the statement on the waiver of rights form, that he was “now willing” to speak with law enforcement meant he was refuting anything he had “said before.” Specifically, Norton contends that this question shows that he had previously spoken with an officer and had indicated that he did not want to speak with police. By questioning him a second time, therefore, police violated his Miranda rights and the trial court erred in admitting the evidence obtained during that interview. We find no such error.

The question as to whether a defendant’s custodial statement is admissible requires the trial court to examine the totality of the circumstances and determine whether the State has shown, by a preponderance of the evidence, that the statement was voluntary. Clark v. State, 309 Ga. App. 749, 751 (3) (711 SE2d 339) (2011). In other words, the statement will be admissible only if it was made following the defendant’s knowing and voluntary waiver of his Miranda rights. Salinas-Gomez v. State, 287 Ga. App. 384, 386 (1) (651 SE2d 501) (2007). Additionally, once a suspect is in custody, if he indicates to the police “in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (Punctuation and footnote omitted.) Screws v. State, 245 Ga. App. 664, 665 (2) (538 SE2d 547) (2000). Any assertion of the right to remain silent, however, must be clear and unequivocal. “[I]f a defendant equivocates in asserting the right, a police officer is under no obligation to clarify [the defendant’s wishes] or to stop questioning.” (Citation omitted.) Ridley v. State, 290 Ga. 798, 802 (4) (725 SE2d 223) (2012). “The obligation to cease [or refrain from] questioning a suspect arises only when the suspect unambiguously invokes the right to remain silent.” (Citation omitted.) Perez v. State, 283 Ga. 196, 201 (657 SE2d 846) (2008).

The record in this case shows that Norton understood his Miranda rights, including his right to remain silent. Indeed, Norton himself stated to police that he understood the waiver of rights form as giving him “the right not to say anything if I don’t want to.” Moreover, the record contains no evidence that Norton ever asserted his right to remain silent, either equivocally or otherwise. Pope testified at the pre-trial evidentiary hearing that she neither interviewed nor attempted to interview Norton after handcuffing and frisking him at the scene. The only witness who testified at the Jackson-Denno hearing, May-field, stated that he did not attempt to speak with Norton before the recorded interview — i.e., before advising him of his rights and obtaining a waiver of the same. And when asked if Norton could have told some other officer at the scene that he did not wish to speak with law enforcement, Mayfield stated that any such information would have been provided to him as a matter of protocol, given that he was the case agent. Furthermore, Norton did not testify at either the pre-trial hearing or the Jackson-Denno hearing and assert that he informed any law enforcement officer present at the execution of the search warrant that he intended to remain silent. See Perez, supra, 283 Ga. at 201. Nor did he call any other officer present at the scene to testify that Norton had spoken with the officer and indicated his wish not to speak with police.

The trial court’s ruling on this issue shows that it credited the testimony of the officers, and reached the factual conclusion that Norton never informed anyone at the scene that he wished to remain silent. “We are obligated to accept these factual and credibility determinations unless they are clearly erroneous,” (citation omitted), Huskins v. State, 294 Ga. App. 653, 655 (2) (a) (669 SE2d 680) (2008), and we can discern no such error here. Accordingly, we affirm the trial court’s finding that Norton’s custodial statement was made following a knowing and voluntary waiver of his rights.

3. Norton also contends that he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance, Norton bears the burden of proving both that the performance of his lawyer was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). If Norton cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). Here, we find that Norton failed to establish that his lawyer’s performance was deficient.

In his brief, Norton raises several grounds for his ineffective assistance claim. Only one of these grounds, however, was raised and argued below. Where specific grounds for an ineffective assistance claim are not raised and ruled on in the trial court, they are waived and cannot be considered on appeal. Bell v. State, 306 Ga. App. 853, 860 (3) (703 SE2d 680) (2010) (“Such claims unasserted at the trial level are procedurally barred, and once a claim is procedurally barred, there is nothing for this Court to review.”) (citation, punctuation and footnote omitted).

The sole ground for his ineffective assistance claim argued by Norton below was that trial counsel failed to defend the charges of possession of methamphetamine and possession of a drug related object and instead focused on defending the trafficking charge. As trial counsel explained at the motion for new trial hearing, however, this decision was a strategic one, based on the fact that the evidence on the possession charges was substantial. Thus, he decided that the best line of defense was to argue that Norton was, at worst, a casual user of methamphetamine, and that he was not a drug trafficker. And because the large bag of methamphetamine was found on Norton while he was semi-conscious, trial counsel attempted to show that the drugs had been planted on him by a third party.

Given the strategic nature of this decision, it “can provide no grounds for reversal unless it was so patently unreasonable that no competent attorney would have chosen it.” (Citation, punctuation and footnote omitted.) Mantooth v. State, 303 Ga. App. 330, 336 (1) (b) (693 SE2d 587) (2010). And it is Norton who bears the burden of rebutting the strong presumption that this strategy was a reasonable one, made in the exercise of reasonable professional judgment. Thornton v. State, 301 Ga. App. 784, 793 (4) (689 SE2d 361) (2009). Norton cannot carry this burden.

Notably, Norton fails to identify what evidence or arguments trial counsel should have presented in defense of the possession charges. See Greene v. State, 295 Ga. App. 803, 806 (1) (673 SE2d 292) (2009) (“It is axiomatic that trial counsel cannot be deemed ineffective for failing to introduce nonexistent evidence.”). Moreover, Norton’s argument fails to acknowledge the significant physical evidence against him with respect to the charge of possession of methamphetamine in his urine — i.e., that his urine tested positive for the drug. Additionally, the evidence that Norton was a regular user of methamphetamine, including the similar transaction evidence and Norton’s admission to police, presented significant obstacles to mounting a credible defense to the charges stemming from his possession of the small bag of methamphetamine and the methamphetamine pipe. Under these circumstances, therefore, trial counsel’s decision not to contest Norton’s guilt on the lesser crimes and focus his defense on the trafficking charge was a reasonable one. See Mantooth, 303 Ga. App. at 336 (1) (b) (“trial counsel’s strategic decision to focus his defense on the most serious offenses with which [defendant] was charged was eminently reasonable,” given the significant evidence against his client) (citation and punctuation omitted); Paul v. State, 257 Ga. App. 86, 87 (570 SE2d 399) (2002) (“considering the overwhelming evidence” that defendant had committed the crime at issue, trial counsel acted reasonably in arguing “that the State could prove robbery, but not armed robber/’). “That this strategy was ultimately unsuccessful in securing a defense verdict on all charges does not show that trial counsel’s” performance was deficient. Farris v. State, 293 Ga. App. 674, 678 (3) (667 SE2d 676) (2008).

Decided March 13, 2013.

Patrick G. Longhi, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Robert G. Morton III, Shannon G. Wallace, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       OCGA § 16-13-31 (e).

       OCGA § 16-13-30 (a).

       OCGA§ 16-13-32.2.

       According to the emergency room nurse who testified at trial, patients such as Norton were undressed to facilitate both a physical examination and the performance of certain medical tests. A patient’s clothing was searched in an attempt to find information or items that could help to explain the patient’s condition, and also to prevent contraband from entering the hospital.

       The State argued that because Norton neither resided in nor had an ownership interest in his girlfriend’s residence, he lacked standing to challenge the validity of the search warrant. The trial court acknowledged this argument, hut also found that Norton had standing to challenge the search and seizure of his person that resulted from the allegedly valid warrant. In addressing the validity of the warrant we assume, without deciding, that Norton has standing to challenge the same.

       This part of the form stated that Norton had heen informed that he had the right to remain silent; that anything he said could be used against him in court; that he had a right to talk to a lawyer and have the lawyer present during questioning; that if he could not afford a lawyer but wanted one, an attorney could be appointed to represent him before police questioned him; and that he could decide at any time to exercise these rights and quit answering questions.

       The transcript of the hearing on Norton’s new trial motion reflects that his current lawyer questioned Norton’s trial counsel about his defense strategy and what he did in investigating and preparing Norton’s defense. Following this testimony, when asked by the court below to identify the exact grounds on which he was basing his ineffective assistance claim, Norton’s current lawyer responded: ‘Your Honor, we’ll leave it for the court. I mean, we had a thorough and sifting examination [regarding] exactly what [trial counsel] did in his performance.... So we’ll submit it to the court, except we do think what’s glaring here is that three out of four charges were not being contested.”


text:
    A12A1866.
    HWA PROPERTIES, INC. et al. v. COMMUNITY & SOUTHERN BANK.
    (739 SE2d 770)
   MILLER, Presiding Judge.

HWAProperties, Inc. and Harry W. Albright (collectively “HWA”) appeal from the trial court’s order approving an application by Community & Southern Bank (“Community Bank”) for confirmation of a nonjudicial foreclosure sale of property. HWA contends that the trial court erred in confirming the sale because its determination of value was based on inadmissible hearsay. For the following reasons, we reverse.

The trial court is the trier of fact in a confirmation proceeding, and an appellate court will not disturb its findings if there is any evidence to support them. Furthermore, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.

(Citation and punctuation omitted.) Greg A. Becker Enterprises, Ltd. v. Summit Investment Mgmt. Acquisitions I, LLC, 314 Ga. App. 721 (725 SE2d 841) (2012).

So viewed, the record shows that in June 2006, HWA executed a security deed to secure repayment of a promissory note in the principal amount of $4,145,401. Pursuant to the security deed, the lender, Appalachian Community Bank, acquired a security interest in HWA’s real property in Fannin County. Albright executed a guaranty covering the promissory note.

Appalachian Community Bank was subsequently closed, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver for the bank. Thereafter, the FDIC assigned its interest in the HWA note, Albright’s guaranty, and the security deed to Community Bank. After HWA defaulted on the loan, Community Bank accelerated the loan, declaring the principal balance due immediately. Community Bank then initiated proceedings to foreclose upon HWA’s real property in accordance with the power of sale authorized in the security deed.

The foreclosure sale occurred in November 2011. There were no other bidders at the foreclosure sale, and the property was knocked down and sold to Community Bank for $1.59 million. Thereafter, Community Bank filed a petition to have the sale confirmed and approved for purposes of pursuing a deficiency judgment.

At the confirmation hearing, Community Bank’s real estate appraiser testified that the property consisted of three separate parcels of undeveloped land: (1) 83.47 acres with highway frontage intended for development (the “Development Tract”); (2) approximately 91.66 acres that the appraiser found to be “effectively inaccessible” and not suited for development (the “First Excess Tract”); and (3) 12.75 acres unconnected to either of the other two tracts that the appraiser also found to be inaccessible and not suited for development (the “Second Excess Tract”). Included in First Excess Tract’s 91.66 acres was a 1.433-acre strip of land that surveys showed connected the First Excess Tract to the Development Tract. The appraiser stated that during her physical inspection of the property, she could not locate the 1.433-acre strip and could not say with certainty whether she traveled from the Development Tract to the First Excess Tract.

The appraiser explained that she applied a 70% discount to the First and Second Excess Tracts since they were “effectively inaccessible.” Applying this discount to the First and Second Excess Tracts, the appraiser determined the value of each tract as follows: $ 1,310,000 for the Development Tract; $247,500 for the First Excess Tract; and $31,500 for the Second Excess Tract. The final adjusted valuation of the entire property was $1.59 million.

The trial court questioned whether the property was landlocked and the appropriateness of the percent discounted for the First and Second Excess Tracts due to inaccessibility. The appraiser stated that she also did not believe that the First Excess tract was actually landlocked, and that she could not confirm whether this was true. The trial court rejected the appraiser’s reasons for using a 70% discount, finding the percentage to be absurd. The trial court nevertheless confirmed the sale because it believed that the “overall valuation” of the property was correct. The trial court’s opinion was “based upon previous confirmations and testimony of others and the Court’s own experience.” Following the hearing, the trial court entered an order confirming the sale, finding that the property sold for at least true market value.

On appeal, HWAcontends that the trial court erred in confirming the foreclosure sale because it expressly based its determination of value on inadmissible hearsay. Specifically, HWA argues that after the trial court rejected the appraiser’s valuation of the property due to questions of inaccessibility and excessive discounting, the trial court erred in confirming the sale based upon previous confirmations and the testimony of others in those cases. We agree.

We must affirm the trial court’s determination that a property sold for at least fair market value if it is supported by any evidence. See Greg A. Becker Enterprises, supra, 314 Ga. App. at 721. “It is settled, however, that hearsay is not competent evidence and is without probative value to establish any fact.” (Citation omitted.) Teal v. Thurmond, 310 Ga. App. 312, 313 (713 SE2d 436) (2011). When the trial court sits as the trier of facts, it is presumed that the court separated admissible evidence from inadmissible evidence and selected only the legal evidence in forming its judgment. See Eayrs v. Wells Fargo Bank, 311 Ga. App. 504, 506 (2) (716 SE2d 561) (2011). However, where the trial judge indicates its intention to consider inadmissible matters, “we can no longer indulge the presumption that the trial judge selected the legal testimony and discounted the effect of the incompetent evidence in molding his judgment.” (Citations and punctuation omitted.) Smith v. Andrews, 139 Ga. App. 380, 381-382 (228 SE2d 320) (1976); see also Ace Technologies v. PMCS, Inc., 274 Ga. App. 785, 787 (618 SE2d 720) (2005) (holding that presumption did not apply where the trial court clearly based its ruling on hearsay).

Decided March 13, 2013.

Troutman Sanders, Matthew R. Brooks, for appellants.

In this case, HWAhas demonstrated that the trial court considered inadmissible evidence in reaching its decision. Community Bank’s appraiser was the only witness who testified at the confirmation hearing as to the property’s value. After rejecting the appraiser’s methodology and valuation, the trial court clearly expressed its intent to rely upon inadmissible hearsay. See In the Interest of L. H., 242 Ga. App. 659, 660 (2) (530 SE2d 753) (2000) (stating that a trial court’s oral pronouncements may provide appellate insight as to the intent of its subsequent written judgment). Notably, the trial court stated that it was confirming the sale based upon “previous confirmations and [the] testimony of others.” “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons, and is inadmissible unless it falls within a permissible exception to the hearsay rule.” (Punctuation and footnote omitted.) Chancey v. Peachtree Pest Control Co., 288 Ga. App. 767, 769 (1) (655 SE2d 228) (2007); see also former OCGA § 24-3-1 (a) (2011). The information and testimony from other confirmation hearings fall squarely within the hearsay definition, and no showing has been made that any hearsay exception applied.

Although Community Bank argues that the trial court’s confirmation may still be affirmed since the appraiser’s testimony established the true market value of the property, the trial court expressly rejected the appraiser’s methodology and valuation and substituted its own valuation of the property based on inadmissible evidence. As a result, no admissible evidence supported the trial court’s determination that the foreclosure sale brought at least fair market value. See Belans v. Bank of America, 303 Ga. App. 35, 39 (2) (692 SE2d 694) (2010) (after eliminating hearsay reports, there was no evidence to support trial court’s confirmation of foreclosure sale); see also Andrews, supra, 139 Ga. App. at 381-382 (concluding that when the trial court relies upon inadmissible hearsay, we must reverse since we can no longer presume trial court relied upon legal testimony and discounted incompetent evidence). Accordingly, the trial court erred in confirming the foreclosure sale.

Judgment reversed.

Ray and Branch, JJ., concur.

Thompson, O’Brien, Kemp&Nasuti, Bret T. Thrasher, for appellee.


text:
    A12A1908.
    ROOSTER YOUNGBLOOD CONSTRUCTION, INC. et al. v. BANK OF HIAWASSEE.
    (739 SE2d 788)
   Branch, Judge.

A superior court confirmed a nonjudicial foreclosure sale even though it concluded that the sale did not return fair market value of secured property. The debtors appeal, and we reverse.

On review of a confirmation proceeding, we review questions of law de novo. Howser Mill Homes v. Branch Banking and Trust Co., 318 Ga. App. 148, 149 (1) (733 SE2d 441) (2012).

The record shows that following a hearing to confirm the nonjudicial foreclosure sale, the court entered an order in which it made the following relevant findings:

2) The debt secured by [the real property] as of March 1, 2011, was $136,854.11; and
3) The successful bid at the foreclosure sale was $37,609.00, and the real property was sold back to [the bank] for said sum; and
6) The Court having heard evidence, determines the true market value of the real property as of the date of the foreclosure sale was $44,804.50; and
7) [The bank] having agreed to credit the debt the amount of $44,804.50, thereby reducing the potential deficiency; and
8) The Court having heard evidence, determines the sale complied with all legalities of notice, advertisement, and regularity of sale; and therefore, said sale is hereby APPROVED AND CONFIRMED pursuant to the provisions of OCGA§ 44-14-161.

Thus, the superior court attempted to adjust the amount that would be due on the primary debt by seeking and obtaining the bank’s agreement to credit the debtor’s account with the true market value as determined by the superior court.

Decided March 13, 2013.

Bruce W. Phillips, for appellants.

Bank of Hiawassee, pro se.

The confirmation statute provides that the court “shall not confirm the sale” unless the property “brought its true market value”:

The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.

OCGA § 44-14-161 (b). “OCGA § 44-14-161 is in derogation of common law and must be strictly construed.” (Citation and punctuation omitted.) 129 Acres, Inc. v. Atlanta Business Bank, 311 Ga.App. 462, 463 (716 SE2d 536) (2011). This Court has interpreted the statute as being limited to its terms, and a trial court is not allowed to consider and address extraneous issues:

The duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. The statute does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of the debt or side agreements which could have been the basis of an injunction preventing the foreclosure sale.

(Citations and punctuation omitted.) Alexander v. Weems, 157 Ga. App. 507 (1) (277 SE2d 793) (1981), quoting Jones v. Hamilton Mtg. Corp., 140 Ga.App. 490, 491 (231 SE2d 491) (1976). “The legislative intention was to have a speedy determination through a bench trial of the specific items stated in the statute.” Jones, 140 Ga. App. at 491. The statute specifies the court may not confirm the sale when the property has failed to return its fair market value, although it may order a resale: “The court may order a resale of the property for good cause shown.” OCGA § 44-14-161 (c).

Because we find that the remedy created by the superior court is not authorized by the statute, we must reverse.

Judgment reversed.

Miller, P. J., and Ray, J., concur.

       The order also shows that it was “ [r] eviewed as to form” hy the debtors’ counsel, but it does not indicate that the debtors consented to the substance of the order. Moreover, the order itself states that only the bank agreed to the court’s adjustment of the amount due.


text:
    A12A1982.
    DANIELS v. THE STATE.
    (739 SE2d 773)
   Branch, Judge.

Terry Daniels was tried and convicted on five counts of child molestation, four counts of aggravated child molestation, and two counts of incest all involving the same victim; he was acquitted on two counts of statutory rape. On appeal, Daniels does not challenge the sufficiency of the evidence. Rather, he challenges aspects of his sentence and claims ineffective assistance of counsel. The issues arise out of the fact that, with one exception, Daniels was charged in each of six pairs of counts with identical sexual misconduct toward the same victim, with one count alleging misconduct before July 1, 2006, and the other alleging misconduct on or after that date.

In each pair of counts, Daniels was charged with one of various types of sexual misconduct toward the victim. In one count he was alleged to have committed the misconduct in two separate time periods occurring before July 1, 2006; in the other count he was charged with the identical misconduct in two separate time periods occurring on or after July 1, 2006. For example, in Counts 1 and 2, Daniels was charged with child molestation in that he “did touch said child upon her vagina with his hand.” In Count 1, it was alleged that the crime occurred

on or about the periods between January 1, 2005 and September 20, 2005, and the periods between October 7, 2005 and June 30, 2006, the exact dates being unknown.

(Emphasis supplied.) In Count 2, it was alleged that the crime occurred

on or about the periods between July 1,2006 and September 25, 2007, and the periods between March 7, 2008 and May 29, 2008, the exact dates being unknown.

(Emphasis supplied.) The other five matching pairs of counts — Counts 3 and 4, 6 and 7, 8 and 9, 10 and 11, and 12 and 13 — follow this pattern, the only change being the alleged misconduct. The six pairs of counts were charged in this fashion because effective July 1, 2006, the legislature modified and amended the punishment provisions related to these crimes.

On April 13, 2011, following trial, the jury returned a verdict against Daniels, and he was sentenced that day on all 11 counts for which he was convicted. In Counts 6, 8, and 12, Daniels was given the post-July 1, 2006 sentence even though each of these counts alleged conduct occurring before July 1, 2006. Defense counsel did not object to the sentence in open court that day. On May 2, 2011, however, Daniels moved for a new trial, and on November 1, 2011, he amended his motion, to assert, among other things, that the court erred by applying an ex post facto sentence on Counts 6, 8, and 12; that the court should have merged each matching pair of counts for the purpose of sentencing; and that the court should use the lesser sentence in each pair based on the doctrine of lenity. Daniels also raised a claim of ineffective assistance of counsel in connection with the same sentencing issues. In reply, the State agreed that Daniels was sentenced in violation of ex post facto prohibitions on Counts 6, 8, and 12, and it added that Daniels was also improperly sentenced pursuant to OCGA § 17-10-6.2 on Counts 1, 3, 6, 8, and 12 because that statute went into effect on July 1, 2006.

Although the trial court denied the motion for new trial, it agreed with the State that Daniels had been sentenced improperly, and the court announced that Daniels’s sentence would be vacated on Counts 1, 3, 6, 8, and 12 and that he would be resentenced. Thus, on March 22, 2012, nunc pro tunc to April 13, 2011, the trial court resentenced Daniels. Nevertheless, the court did not merge any of the counts. All together, Daniels was sentenced to a total of life plus 45 years to serve. Daniels timely appealed the denial of his motion for new trial, and he amended his notice of appeal to appeal the sentence entered on March 22, 2012.

1. Daniels does not dispute that some evidence was presented to show that he committed each crime both before and on or after July 1, 2006. Accordingly, there was sufficient evidence to support the jury’s verdict.

2. Daniels challenges the trial court’s failure to merge for sentencing one count in each of five pairs of counts in which the crimes alleged are identical but the date range is different. He contends the sentence on one count in each pair is void because it should have merged into the corresponding count for sentencing given that the only difference in the counts in each pair was the alleged range of dates that the crime was committed, yet those dates were not alleged to be material averments of the indictment. Daniels notes that the trial court, in fact, charged the jury that the dates were not material averments:

I charge you the dates alleged in this indictment are not material elements of the charges contained therein, and where the date alleged in the indictment is not a material element of the offense, the State must prove that the offense occurred as of any date within the Statute of Limitations, and the Statute of Limitations with respect to all counts within this particular indictment is seven years.

And, of course, the jury was not aware of the significance of the July 1, 2006 sentencing distinction. Daniels concludes that based on the indictment and on the jury instruction, “the jury could have found Mr. Daniels guilty based on conduct occurring before July 1, 2006, for the offenses that alleged the date range beginning July 1,2006.” Thus, he could have been given the post-July 1, 2006 sentences for actions occurring before July 1, 2006. We agree.

Where two charges are indistinguishable because “all of the averments, including date (which was not made an essential element), victim, and description of defendant’s conduct constituting the offense were identical,” only one sentence may be imposed. (Citation and punctuation omitted.) Hudson v. State, 309 Ga. App. 580, 582 (2) (711 SE2d 95) (2011); see also LaPan v. State, 167 Ga. App. 250, 253-254 (4) (305 SE2d 858) (1983) (“Since all the dates alleged fall within the period of the statute of limitation, only one sentence can be imposed.”) (citation omitted) (physical precedent only); Smith v. State, 160 Ga. App. 26, 29 (4) (285 SE2d 749) (1981) (where “the counts in the accusation are identical except for the dates alleged,” and the dates “were not made essential averments, only one conviction can stand”); Hilliard v. State, 193 Ga. App. 54 (1) (387 SE2d 21) (1989). Compare Williams v. State, 202 Ga. App. 494, 496 (2) (414 SE2d 716) (1992) (“each count of the indictment in the present case does contain a statement to the effect that the alleged commission date constitutes a material averment”) (citation omitted).

Similarly, where a charge alleges a range of dates wherein the crime occurred without alleging that the dates are material averments, the charge “covers any offense of the nature charged within the period of limitation, including the dates alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period.” (Citation and punctuation omitted.) Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987); see also State v. Layman, 279 Ga. 340,341 (613 SE2d 639) (2005) (“the State is not restricted at trial to proving that an offense occurred on the date alleged in the indictment when the indictment does not specifically allege that the date of the offense is material”) (footnote omitted). Accord Alexander v. State, 274 Ga. 787, 789 (1) (b) (561 SE2d 64) (2002). This rule applies in prosecutions for multiple sexual assaults against child victims despite the impracticality of treating the dates specified in indictments as material averments. State v. McCrary, 259 Ga. 830 (2) (b) (388 SE2d 682) (1990). And “the mere fact that a different date is charged in each count” will not “of itself make the indictment into a special one where the averment as to date is not particularized.” Miller v. State, 141 Ga. App. 382, 383 (1) (233 SE2d 460) (1977).

Here, the State charged Daniels with the identical conduct in each pair of counts without identifying specific particularized incidents. The date ranges alleged in each count were not made material allegations of the indictment, and they were described as being “on or about” a certain set of dates with “the exact dates being unknown.” More importantly, the trial court charged the jury that the dates alleged were not material averments. Thus, as instructed, the jury was authorized to find the defendant guilty for actions falling outside of the date ranges given in the indictment, thereby blurring the distinction between the counts alleging crimes before July 1, 2006, and those alleging crimes on or after that date.

The cases upon which the State relies are distinguishable because there is no indication that the trial court in those cases charged the jury that the dates in the indictments were not material averments of the crimes. See, e.g., Salley v. State, 199 Ga. App. 358, 362 (4) (405 SE2d 260) (1991) (“[T]he averments of each count refer to a different period of time hence same is made an essential averment of the transaction, and each count of the indictment is distinguishable”) (citation and punctuation omitted); Hamilton v. State, 167 Ga. App. 370, 371 (306 SE2d 673) (1983) (although offenses charged involved the same conduct, they were for different periods of time).

Accordingly, Daniels may not be convicted on both counts of each pair, and the trial court erred by failing to merge for sentencing Counts 1 and 2, Counts 3 and 4, Counts 6 and 7, Counts 8 and 9, and Counts 12 and 13.

3. With regard to Counts 6 and 7, Counts 8 and 9, and Counts 12 and 13, Daniels contends the rule of lenity dictates that he be sentenced under the pre-July 1, 2006 version of the applicable statutes. We agree.

In each pair of Counts 6 and 7 and Counts 8 and 9, Daniels was charged with and convicted of aggravated child molestation for the identical specified act of sexual misconduct occurring before and after July 1, 2006, respectively. In Counts 12 and 13, Daniels was charged with and convicted of incest for the identical specified act of sexual misconduct occurring before and after July 1, 2006, respectively. As already shown, the legislature increased the punishment for both crimes effective July 1, 2006. Supra, n. 2.

This Court recently stated the rule of lenity as follows:

The rule of lenity applies where two or more statutes prohibit the same conduct while differing only “with respect to their prescribed punishments.” Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004). According to the rule, “[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered.” (Punctuation and footnote omitted.) Brown v. State, 276 Ga. 606, 608-609 (2) (581 SE2d 35) (2003).

(Footnote omitted.) White v. State, 319 Ga. App. 530, 531-532 (2) (737 SE2d 324) (2013). Here, as we have held above, because the jury was instructed that the dates were not material averments, it may have found Daniels guilty on both counts of each pair based on events occurring prior to July 1,2006. Daniels, therefore, cannot be given the higher sentence imposed by the version of the law applicable thereafter.

4. Daniels’s sentence is vacated and the case remanded for resentencing. Because our decision addresses each of Daniels’s arguments regarding sentencing, his claim of ineffective assistance of counsel regarding those same arguments is moot.

Decided March 13, 2013.

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Emily C. Puhala, Meg E. Heap, Assistant District Attorneys, for appellee.

Judgment affirmed and case remanded with direction.

Miller, P. J., and Ray, J., concur.

       Count 5 alleged only actions by Daniels occurring after July 1,2006, and that count does not have a matching count alleging the same misconduct prior to that date.

       Effective that date, the legislature, among other things, (1) increased the sentence range for the crime of child molestation for first offenders to five to twenty years and for multiple offenders to ten to thirty years, OCGA § 16-6-4 (b); (2) increased the sentence range for the crime of aggravated child molestation from ten to thirty years to “imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life,” OCGA § 16-6-4 (d) (1); (3) increased the sentence range for the crime of incest from one to twenty years to “imprisonment for not less than 25 nor more than 50 years” when the victim is less than 14 years of age, OCGA § 16-6-22 (b); and (4) added a new provision for mandatory minimum sentences for persons convicted of a sexual offense, OCGA § 17-10-6.2. Ga. L. 2006, p. 379, §§ 11, 14, 21.

       See, e.g., Ewell v. State, 318 Ga. App. 812, 816 (3) (734 SE2d 792) (2012) (sentences were ex post facto in application where defendant “was sentenced under a later version of the statute than the one in effect when the crimes were committed”).

       OCGA § 17-10-6.2providesforcertainmandatoryminimum sentences for sexual offenses.

       Daniels was resentenced as follows:
      Count 1: Child Molestation - 20 years to serve, consecutive to Count 7;
      Count 2: Child Molestation - 20 years to serve, concurrent to Count 1;
      Count 3: Child Molestation - 20 years to serve, concurrent to Count 1;
      Count 4: Child Molestation - 20 years to serve, concurrent to Count 1;
      Count 5: Child Molestation - 20 years to serve, concurrent to Count 1;

        Count 6: Agg. Child Molestation - 30 years to serve, concurrent to Count 7;
      Count 7: Agg. Child Molestation - life imprisonment;
      Count 8: Agg. Child Molestation - 30 years to serve, concurrent to Count 7;
      Count 9: Agg. Child Molestation - life imprisonment, concurrent to Count 7;
      Count 12: Incest - 20 years to serve, consecutive to Count 1; and
      Count 13: Incest - 25 years to serve, consecutive to Count 1, but concurrent to Count 12.


author: McFADDEN, Judge.

text:
    A12A2048.
    EQUIPCO INTERNATIONAL, LLC v. CERTAIN UNDERWRITERS AT LLOYD’S, LONDON.
    (739 SE2d 797)
   McFADDEN, Judge.

This appeal concerns whether OCGA § 33-4-7 — which imposes upon the issuer of a motor vehicle liability insurance policy affirmative duties related to adjusting, investigating and settling certain losses — applies to the issuer of a cargo liability insurance policy. The trial court held that it did not, and accordingly it granted summary judgment to Certain Underwriters at Lloyd’s, London (“Underwriters”) in a bad faith claim asserted under OCGA § 33-4-7 by Equipco International, LLC (“Equipco”). We agree with the trial court that the cargo liability insurance policy is not a “motor vehicle liability insurance policy” under OCGA § 33-4-7. Consequently, we affirm the grant of summary judgment to Underwriters. For this reason, we need not address Equipco’s claim that it was entitled to partial summary judgment on another ground.

1. Facts and procedural posture.

On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine whether there are any genuine issues of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Inagawa v. Fayette County, 291 Ga. 715 (732 SE2d 421) (2012).

The following facts are not in dispute. Underwriters issued a policy to Steady Rockin Transport, Inc., a motor common carrier. The policy provided coverage for Steady Rockin’s “legal liability for cargo ‘in transit.’ ” It stated, in pertinent part:

Coverage is provided for your legal liability for property of others as a common or contract “carrier” under tariff documents, bills of lading, or shipping receipts issued by you. We will pay for “loss” to Covered Property from any of the Covered Causes of Loss, for which you are legally obligated to pay, up to our limit of liability for this coverage. . . . Covered Property . . . means lawful goods or merchandise, the property of others as described in tariff documents, bills of lading, or shipping receipts issued by you, while in your custody and control.

The policy defined a “carrier” to mean “contract or public truckmen, motor transportation companies, and any connecting public truck-men or motor transportation company of the above.” It defined “covered causes of loss” to mean “risks of direct physical ‘loss’ to Covered Property except those causes of ‘loss’ listed in the Exclusions.” (Emphasis omitted.) And it defined “in transit” as follows:

Covered Property shipped via a “carrier” shall be considered “in transit” from the time the goods are in the exclusive custody and control of the “carrier” and continuously until the transporting vehicle arrives at the destination premises and are transferred to the exclusive custody and control of the consignee, warehousemen, or receiver.

Equipco hired Steady Rockin to transport an industrial forklift owned by Equipco. The forklift was damaged when Steady Rockin’s driver collided with an overpass. Underwriters denied Steady Rock-in’s claim under the policy for the damage to the forklift and notified Steady Rockin that it was rescinding the policy on the ground that Steady Rockin had made material misrepresentations to Underwriters.

Equipco brought an action for damages to the forklift against Steady Rockin and its driver and purported to include Underwriters as “unnamed parties” in a bad faith claim under OCGA § 33-4-7. It obtained a default judgment against Steady Rockin. Underwriters then moved to dismiss the bad faith claim, and Equipco moved for partial summary judgment against Underwriters on the issue of whether Underwriters could rescind the policy. In the order on appeal, the trial court noted the parties’ agreement to treat Underwriters’ motion as one for summary judgment. The trial court granted that motion and, accordingly, did not address Equipco’s cross-motion for partial summary judgment.

2. Underwriters’ motion for summary judgment.

Equipco argues that the trial court erred in granting summary judgment to Underwriters on Equipco’s claim that it was entitled to recovery under OCGA § 33-4-7 because Underwriters acted in bad faith regarding Steady Rockin’s claim under the policy. Generally, “ [b] ad faith claims under the Georgia insurance code... are available only as between insureds and their insurers.” (Citation and punctuation omitted.) J. Smith Lanier & Co. v. Southeastern Forge, 280 Ga. 508, 510 (630 SE2d 404) (2006). But OCGA § 33-4-7 allows third parties to bring bad faith claims directly against insurers in certain limited circumstances. OCGA § 33-4-7 pertinently provides:

In the event of a loss because of injury to or destruction of property covered by a motor vehicle liability insurance policy, the insurer issuing such policy has an affirmative duty to adjust that loss fairly and promptly, to make a reasonable effort to investigate and evaluate the claim, and, where liability is reasonably clear, to make a good faith effort to settle with the claimant potentially entitled to recover against the insured under such policy. . . .

(Emphasis supplied.) OCGA § 33-4-7 (a). It imposes a penalty upon an insurer who breaches this duty, and it allows a third-party claimant, as well as an insured, to seek to recover the penalty against the insurer. OCGA § 33-4-7. See generally Kathryn H. Wade, Actions Against Insurance Companies: Change Provisions Relating to an Insurer’s Liability for Bad Faith Refusal to Pay for Loss Covered by Insurance; Provide for Insurer’s Duties with Respect to Settlement of Motor Vehicle Liability Policy Claims; Provide for a Private Cause of Action for Unfair Claims Settlement Practices in Certain Circumstances, 18 Ga. St. U. L. Rev. 167, 170 (2001) (describing enactment of OCGA § 33-4-7, “which provides a procedure for recovery in a third party motor vehicle property damage claim where the insurer engages in bad faith settlement practices”) (citations omitted).

Equipco’s ability to bring a bad faith claim against Underwriters under OCGA § 33-4-7 turns on whether the term “motor vehicle liability insurance policy,” as used in that Code section, encompasses the cargo liability policy at issue here. In considering this question,

we apply the fundamental rules of statutory construction that require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.

(Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003).

Equipco contends that the ordinary and everyday meaning of the term “motor vehicle liability insurance policy” includes the cargo liability policy because the policy covered liability for damage to cargo carried by a motor vehicle. But, by its terms, the cargo liability policy covered more than simply Steady Rockin’s liability for damage to the cargo while the cargo was being carried by a motor vehicle. The policy also covered Steady Rockin’s liability for damage to cargo occurring at any time after Steady Rockin obtained exclusive custody and control of the cargo and before it transferred the cargo to the exclusive custody and control of another. We are not persuaded that the plain language of the term “motor vehicle liability insurance policy” encompasses a policy that covers liability for damage that occurs to cargo in a motor common carrier’s exclusive custody and control, even if the cargo is not in the process of being carried by a motor vehicle when the damage occurs.

In addition, although OCGA § 33-4-7 does not define the term “motor vehicle liability insurance policy,” the use of that term elsewhere within the insurance code indicates that it does not encompass a cargo liability policy such as the policy at issue here. OCGA § 33-34-3 (a) (1) provides that “[a]ll policies of motor vehicle liability insurance issued in this state must be in accordance with the requirements of this chapter,” and proceeds to set forth various requirements pertaining to, among other things, the minimum liability coverage required in all motor vehicle liability insurance policies. It is undisputed that the policy in this case did not meet those requirements. Equipco argues, however, that the requirements for a motor vehicle liability insurance policy set forth in Chapter 34 are “not instructive” to the determination of whether a policy is a motor vehicle liability insurance policy under OCGA § 33-4-7. We disagree.

“In construing any section of the Code, we must treat it as a single statute forming one homogenous and consistent body of laws, and each Code section is to be considered in explaining and elucidating every other part of the common system to which it belongs.” (Citation and punctuation omitted.) Ga. Mut. Ins. Co. v. Gardner, 205 Ga. App. 458, 460 (422 SE2d 324) (1992). See also State ofGa. v. Davis, 246 Ga. 761, 761-762 (1) (272 SE2d 721) (1980) (the meaning and effect of statutes will be determined with reference to other statutes); Allison v. Domain, 158 Ga. App. 542, 544 (281 SE2d 299) (1981) (“A statute must be construed with, reference to the whole system of which it is a part.”) (citation and punctuation omitted). “[A]ll statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” (Citation omitted.) Northeast Ga. Cancer Care v. Blue Cross & Blue Shield of Ga., 315 Ga. App. 521, 526 (1) (a) (726 SE2d 714) (2012). We have applied this rule of statutory construction to construe together Code sections from two different chapters within the insurance code. See id. at 530 (1) (a).

When the legislature enacted OCGA § 33-4-7 in 2001, a statute was already in place that imposed certain coverage requirements upon “[a] 11 policies of motor vehicle liability insurance issued in this state.” OCGA § 33-34-3 (a) (1). “We presume the General Assembly employed the language it used in [OCGA § 33-4-7] with full knowledge of the existing condition of the law....” Retention Alternatives v. Hayward, 285 Ga. 437, 441 (2) (678 SE2d 877) (2009). This includes the knowledge that motor vehicle liability insurance policies in Georgia were subject to specific coverage requirements. Nothing in OCGA § 33-4-7 indicates that the legislature intended the phrase “motor vehicle liability insurance policy” to have a new and different meaning in that Code section so as to include policies that did not meet the coverage requirements imposed upon all motor vehicle liability insurance policies in Georgia. Cf. Retention Alternatives, 285 Ga. at 440 (2) (holding that if there is nothing in amended legislation indicating that phrases used therein were to have new and different meanings, then they are construed as having the same meanings that were attached to them before amendment).

Nevertheless, Equipco argues that “including cargo insurers within the ambit of OCGA § 33-4-7 comports with the purpose of the statute,” which Equipco asserts is “to impose a duty on insurers who cover property damage resulting from motor vehicle accidents to adjust the loss fairly and promptly and, where liability is reasonably clear, make a good faith effort to settle with the claimant.” The legislature, however, described the statute’s purpose more narrowly: “to provide for insurers’ duties with respect to settlement of motor vehicle liability policy claims.” (Emphasis supplied.) Ga. L. 2001, p. 784. Although Equipco asserts public policy and equitable arguments for why issuers of cargo liability policies should also be subjected to the duties set forth in OCGA § 33-4-7, we must construe the requirements of that Code section narrowly because it imposes a penalty. Mills v. Allstate Ins. Co., 288 Ga. App. 257,258 (653 SE2d 850) (2007). Furthermore, we have rejected the argument that the legislature intended under OCGA § 33-4-7 to extend to third parties the same broad rights to bring bad faith actions against insurers that are afforded insureds under OCGA § 33-4-6. Mills, 288 Ga. App. at 259.

Decided March 13, 2013.

O’Daniel & McDonald, Clay S. O’Daniel, for appellant.

Fields, Howell, Athans & McLaughlin, Kylie Holladay, for appellee.

Because the damage claimed by Equipco was subject to a cargo liability policy that Underwriters had issued to Steady Rockin, and not a motor vehicle liability insurance policy, OCGA § 33-4-7 provides no authority for the imposition of any penalty for Underwriters’ alleged bad faith in connection with the claim. See Mills, 288 Ga. App. at 259. Consequently, the trial court did not err in granting summary judgment to Underwriters on Equipco’s bad faith claim.

3. Equipco’s motion for partial summary judgment.

Equipco argues that the trial court should have granted its motion for partial summary judgment in which it sought a ruling that, as a matter of law, Underwriters was prohibited from rescinding the policy. In light of our conclusion that the trial court properly granted summary judgment to Underwriters, this enumeration of error is moot.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.