author: Mikell, Judge.

text:
    A11A1302.
    RILEY v. THE STATE.
    (715 SE2d 835)
   Mikell, Judge.

Following a jury trial, Tracey Riley was convicted of armed robbery, aggravated assault and possession of a firearm during the commission of a crime arising from the armed robbery of a pizza delivery woman. He appeals following the trial court’s denial of his motion for new trial. Finding no error, we affirm.

Viewed in the proper light, the evidence shows that on July 10, 2007, while Tina Rainwater was delivering a Domino’s pizza in an apartment complex in Douglas County, Ezeikiel Clay confronted her and directed her down a stairway within the building. As Rainwater descended, she “realized that there [were] people under the stairwell.” Christopher Ray then jumped in front of her, placed a gun near her face and ordered her to hand over the food and her money. As Ray gave orders, Kevin Charles took the food and money from Rainwater. Riley stood behind Rainwater during the robbery, touched her on her back, making her feel like someone was going to rape her. Once the robbery was completed, Rainwater was told she could leave, and the assailants escaped behind the building.

Law enforcement officers arrived at the scene of the robbery and followed a path of wet footprints leading from the scene to an apartment in the complex. Charles answered the door when the officers knocked and consented to the officers entering the apartment to look around. Officers located several occupants in the apartment, including Riley, who was pretending to be asleep with his cousin in the back bedroom. A search warrant was obtained and executed during which the gun used during the robbery was found stuffed inside a pillow near an empty Domino’s chicken wing box bearing the address Rainwater was supposed to deliver to. An empty Domino’s pizza box bearing the same address was located behind the dresser in the same bedroom.

Riley’s sole enumeration of error is that the trial court erred in allowing the state to reopen the evidence in order to tender a photo of a “thug life” tattoo on Riley’s upper right arm.

At trial, Riley put forth the defense of coercion. He argues that he had been hanging out and playing video games when he was intimidated into taking part in the armed robbery by Ray, who was holding a gun. On cross-examination, Riley was asked to identify State’s Exhibit 41, a photograph of Ray taken on the day of the robbery. In the photograph, Ray is wearing a shirt with the words “Thug Life” printed on it. Riley was asked “[w]hat does thug life mean to you?” Riley replied that it was “[j]ust a plain, old shirt to me,” and when pressed by counsel he stated that “I don’t know what thug life means.” For impeachment purposes, Riley was then shown the State’s Exhibit 100, a photograph of a tattoo on his upper left arm that said “Thug Life.” Riley again stated that he did not know what the term “Thug Life” meant and that had he had gotten the tattoo when he was young without knowing its meaning.

At the close of evidence and during the charge conference, the state’s attorney pointed out to the trial court it had inadvertently rested its case without tendering State’s Exhibit 100, the photograph of Riley’s tattoo, into evidence. The Court reopened the evidence to allow the state to tender the photograph into evidence. Defense counsel objected because he had not seen the photograph until the state presented it, and because the evidence “has been closed for a good 40 minutes.” Defense counsel did not object that the photos were unfairly prejudicial.

“Whether to reopen the evidence rests within the sound discretion of the trial court, and a trial court’s ruling in this regard will only be reversed, if in the totality of the circumstances, the record on appeal demonstrates that the court abused its discretion.” The Supreme Court of Georgia has granted trial courts “very broad discretion in permitting parties to offer additional evidence at any stage of the trial. It has been noted that leniency in this area is very unlikely to constitute an abuse of discretion.” This is because “appellate courts are guided by OCGA § 24-1-2, which provides that ‘the object of all legal investigation is the discovery of truth.’ ”

Decided August 17, 2011.

Mary Erickson, for appellant.

David McDade, District Attorney, Nedal S. Shawkat, Assistant District Attorney, for appellee.

Under the circumstances of this case, we find no abuse of discretion. The record shows that the state had laid the foundation for the photo, authenticated it, and shown it to the jury. Although defense counsel was not shown the photograph of the tattoo prior to the trial, the trial court ruled that defendant had notice of tattoos upon his own body. Riley’s ability to present a defense was not prejudiced by the court’s action. Accordingly, we find that the trial court did not abuse its discretion by reopening the evidence.

Judgment affirmed.

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

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

       (Citation omitted.) Overton v. State, 270 Ga. App. 285, 291 (4) (606 SE2d 306) (2004).

       (Punctuation and footnote omitted.) Sirmans v. State, 301 Ga. App. 756, 758 (2) (688 SE2d 669) (2009), quoting Taylor v. State, 282 Ga. 502, 504 (3) (651 SE2d 715) (2007).

       (Punctuation and footnote omitted.) Id.

        Peeples v. State, 234 Ga. App. 454, 458 (5) (507 SE2d 197) (1998) (court did not abuse its discretion, in prosecution for possession of cocaine, in reopening evidence after motion for directed verdict to allow state to introduce additional testimony from a forensic chemist as to the results of a test regarding the contents of a pipe introduced during trial). Compare Smith v. State, 156 Ga. App. 563, 564 (1) (275 SE2d 140) (1980) (reopening evidence to allow testimony where witness had previously made an out-of-court statement to trial judge concerning his testimony, contents of which were not revealed to either defendants or attorneys, was reversible error).


source: Caselaw Access Project

author: MlKELL, Judge.

license: Public Domain

text:
    A11A0783.
    BIZIMANA v. THE STATE.
    (715 SE2d 754)
   MlKELL, Judge.

Antoine Ibrahim Bizimana, convicted by a DeKalb County jury of rape, appeals from the trial court’s denial of his motion for new trial, contending that the state failed to prove venue. We disagree and affirm.

The Georgia Constitution requires that “all criminal cases shall be tried in the county where the crime was committed.” “[VJenue is a jurisdictional element of every crime that the State must prove beyond a reasonable doubt.”

When a defendant challenges the sufficiency of the evidence on appeal, this Court must view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. An appellate court determines evidence sufficiency rather than weighing the evidence or determining witness credibility. The standard is whether, based on the evidence presented, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The review of the sufficiency of the evidence to support venue is no different because venue is an essential element that must be proven beyond a reasonable doubt in every criminal trial.

So viewed, the evidence was that A. M. N., who was in her early twenties, had come to the United States as a refugee from Burundi in 2007. Leana Rubenstein, with Refugee Resettlement and Immigration Services of Atlanta, helped A. M. N. get resettled in the Valley Brook Apartments with her child, her brother, and her sister and her child. Other Burundian refugees lived at the apartment complex and A. M. N. became aware that Antoine Bizimana would drive other refugees on errands and to job interviews. A. M. N. had ridden previously with four men in Bizimana’s van to a chicken company to apply for a job.

On December 8, 2007, A. M. N. attended a seminar for Burundian refugees on HIV/AIDS prevention, given by Doris Mukangu of the African Women Health, Education, and Employment Center. Following that, A. M. N. walked to a Publix in order to get a money order to pay her electric bill. Upon arriving there, however, she discovered that she did not have enough money. As A. M. N. was returning home, she saw Bizimana with some other people outside. Bizimana asked what she was doing and then told her he would take her back to the Publix with the other people who were going to do their shopping. A. M. N. rode in the back of the van and Bizimana, another man, and his wife were in the front seat of the van on the way to the store. After getting her money order, A. M. N. rode in the front seat on the way home. Bizimana let the man and his wife out of the van because they lived in “the apartment before hers.” Bizimana then told A. M. N. that he liked her, but A. M. N. responded that she did not like him the way he liked her because she respected him and he was as old as her father.

A. M. N. testified that:

I am already home. She told him, stop so that I can get out of the car. He kept on insisting so that she would agree [to go with him around America]. She told him to stop, she does not like him. And he kept on moving. He kept on driving. He did not stop. He kept on driving. He kept on driving. She kept on telling him to stop, and he kept on driving.
Q. At some point, did he stop his van? . . .
A. They got to the trash area. He went and parked around the trash can area and parked the car. And he locked the car doors.

Bizimana then fondled A. M. N. and forced her into the rear seat of the van where he ‘ ‘took his private parts and put it in her private parts.” A. M. N. was wearing a skirt, which Bizimana pulled up. A. M. N. returned to her apartment and called Ms. Mukangu, who spoke Swahili. According to Ms. Mukangu, A. M. N. was crying, said someone had forced himself on her, and she was afraid that she might have caught something. Ms. Mukangu assisted A. M. N. in contacting Ms. Rubenstein, who went to A. M. N.’s apartment and took her to DeKalb Medical Center, where police were called. A. M. N. did not call 911 because she does not speak English.

Nurse Keena Curtis saw A. M. N. in the emergency room around 11:15 p.m., and A. M. N. told her she was assaulted “in an apartment complex.” Then, Physician’s Assistant Shannon Smith examined A. M. N., describing her as upset, under distress, and very distraught over what had taken place. A rape kit was completed and forwarded to the Georgia Bureau of Investigation, where it was determined that the vaginal and cervical swabs taken from A. M. N. contained the DNA of Bizimana.

DeKalb County Police Officer Branan Garside was dispatched to the hospital and took an initial report from A. M. N., in which she repeated that Bizimana pulled up her dress and forced himself on her. Officer Garside contacted Detective Batina Rozier of the DeKalb County Police Force and turned the case over to her in the early hours of the next day. Detective Rozier spoke with Ms. Rubenstien who asked that, because they had been at the hospital so long and A. M. N. was tired, Detective Rozier speak with A. M. N. the next day. Because of the language barrier, Detective Rozier had some difficulty getting in touch with A. M. N., but, with a translator, did meet with A. M. N. on December 30, 2007. A. M. N. told Detective Rozier that, following the seminar, she came back home; needed to get a money order from the store; “which there is a Publix right across the street from her apartment complex”; encountered Bizimana and the others; went to the store and returned to the apartment complex, where Bizimana “dropped them off and he took her up to the front part of the complex. There is a parking lot off to the right, and he went and parked over there.” A. M. N. then told Detective Rozier that Bizimana forced himself on her.

Detective Rozier was then asked:

Q. Through your investigation, were you able to determine the incident location, where this took place?
A. Yes. It was on the property of Valley Brook Apartments, where she lives.
Q. Do you know where that is located?
A. That is off Valley Brook Place, which is off — near — oh, goodness, North Druid Hills and Lawrenceville Highway.
Q. What county is that in?
A. That is in DeKalb County.

Detective Rozier was asked during cross-examination at trial if she had made it to the scene of the alleged crime, and she answered affirmatively. She noted that there were people “walking around the complex[,]” while she was there. Also, on cross-examination, Detective Rozier was asked if A. M. N. told her how she got home from where the van was, where the intercourse took place. She responded that A. M. N. “walked home, . . . because, again, it is all in the same complex.”

At the motion for new trial hearing, Detective Rozier was called by defense counsel and asked what the investigation was that led her to determine the incident location. She responded: “[t]he victim’s statement. The victim’s statement, she stated where she was raped. I was familiar with the area so I knew what she was talking about.”

Detective Rozier interviewed Bizimana twice, once while accompanied by his attorney. Bizimana denied having sexual relations with A. M. N. and did not know why she was accusing him of this.

We find that the evidence was sufficient to enable a rational trier of fact to find Bizimana guilty beyond a reasonable doubt of the charged crime. Despite his argument to the contrary, venue was sufficiently established by Detective Rozier’s testimony that the apartment complex where the crime occurred was in DeKalb County.

Decided August 1, 2011

Reconsideration denied August 18, 2011

Gerard B. Kleinrock, for appellant.

R. Javoyne Hicks White, District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Even accepting Bizimana’s argument that the evidence only supported the conclusion that the victim might have been driven into another county before the rape occurred, this would not preclude a jury’s conclusion that venue could be proper in DeKalb County. In Leftwich v. State, a victim abducted from Lenox Mall in Fulton County was then driven around wearing blacked out sunglasses for about 20 minutes and raped at an unknown location. Because the most definite testimony regarding the location of the crimes related to Lenox Mall, located in Fulton County, “the jury was authorized to find beyond a reasonable doubt that the rape might have occurred in Fulton County.”

There was no error in the denial of Bizimana’s motion for new trial based on failure to prove venue.

Judgment affirmed.

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

       Ga. Const, of 1983, Art. VI, Sec. II, Par. VI.

       (Citation and punctuation omitted.) Thompson v. Brown, 288 Ga. 855 (708 SE2d 270) (2011).

       (Citation omitted.) Melton v. State, 282 Ga. App. 685-686 (639 SE2d 411) (2006).

       A. M. N. testified in Swahili, which was translated into English. The translator used the third person for A. M. N.

       (Emphasis supplied.)

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Rosser v. State, 284 Ga. 335, 336 (1) (667 SE2d 62) (2008) (Detective’s testimony that the apartment complex was in the “south end of the county” and the victim’s testimony that her apartment was in Cherokee County were sufficient to prove venue in Cherokee County.); accord Chapman v. State, 275 Ga. 314, 317-318 (4) (565 SE2d 442) (2002) (Police officer’s statement that he was employed on the date in question as a “City of Atlanta police officer, Fulton County, Georgia” and the fact that the Fulton County Medical Examiner did the autopsies on the body was sufficient to prove venue in Fulton County.).

       299 Ga. App. 392, 398-399 (4) (682 SE2d 614) (2009).

       Id. at 399 (4), citing Hendrix v. State, 242 Ga. App. 678, 680 (1) (530 SE2d 804) (2000) (reviewing sufficiency of venue determination under OCGA § 17-2-2 (e) and (h) when crime committed in a vehicle); Drake v. State, 238 Ga. App. 584, 587-588 (2) (519 SE2d 692) (1999) (holding evidence adequate to show venue because defendant had access to the victim in DeKalb County and might have had intercourse with her there). Accord Short v. State, 276 Ga. App. 340, 343 (1) (a) (623 SE2d 195) (2005) (sexual assaults could have been committed in a moving vehicle in either Douglas County or Fulton County, rendering venue proper in Douglas County).


text:
    A11A0841.
    GOVINDASAMY v. WELLS FARGO BANK, N.A.
    (715 SE2d 737)
   Mikell, Judge.

Proceeding pro se, Elamurughu Govindasamy (“Govindasamy”) appeals from the trial court’s grant of summary judgment to Wells Fargo Bank, N.A., holder of his home equity line of credit. He argues that the trial court’s consideration of summary judgment was premature due to pending discovery and that the grant of summary judgment was in error. We affirm.

Wells Fargo claimed that Govindasamy defaulted in making payments pursuant to the express terms of a home equity agreement executed on March 2, 2007. Govindasamy was served with process, Summons and Complaint on May 20, 2010. On June 15, 2010, Govindasamy filed a pleading entitled “Motion to Dismiss for Failure to State a Cause of Action” asserting that the complaint failed to state facts sufficient to create a cause of action upon which relief could be granted.

On July 19, 2010, Wells Fargo filed a motion for summary judgment which was supported by affidavits with exhibits attached.

A hearing was held in State Court on August 9, 2010, regarding Govindasamy’s Motion to Dismiss and, after a review of the pleadings and consideration of oral argument from both parties, the State Court entered an order on the same date denying the motion and allowing the case to proceed.

On August 13, 2010, Govindasamy filed an “Answer to Complaint” which set forth several affirmative defenses. On August 17, 2010, Govindasamy filed a pleading captioned “Motion to Dismiss Plaintiffs Motion for Summary Judgment” asserting that Wells Fargo’s motion was insufficient as a matter of law. In that pleading, Govindasamy requested an extension of time to conduct discovery. Govindasamy however, did not file or otherwise offer an affidavit in opposition to Wells Fargo’s motion for summary judgment nor did he properly present any evidence in rebuttal.

Govindasamy claims that he served a Request for Admissions on opposing counsel and filed it with the Court on October 13, 2010. However, that request is not contained in the record before us.

A hearing was held in the state court on October 18, 2010, regarding Wells Fargo’s motion for summary judgment at which both parties were present and offered oral arguments. There is no transcript of this hearing in the record before us. After consideration of the record, the evidence and oral arguments presented, the court entered an order on October 26, 2010, granting the motion. Again proceeding pro se, Govindasamy appeals.

1. As a threshold matter, we address the deficiencies of Govin-dasamy’s brief. So far as we are able to determine, Govindasamy’s brief contains two enumerations of error and short arguments supporting each enumeration. But the remainder of his brief, captioned “Additional Arguments” does not follow the form or sequences required by Court of Appeals Rule 25 (c) (1). We caution that this Court’s rules “are designed to facilitate the consideration of enumerated errors and compliance with such rules is not optional.” Govindasamy’s failure to adhere to our rules has hampered our ability to ensure that all his arguments not addressed by enumerations of error are addressed. Accordingly, Govindasamy is wholly responsible for any allegation of error that we are unable to fully address.

Govindasamy’s brief appears to assert the following enumerations of error: that the grant of summary judgment was premature because there was a pending discovery request; and that the trial court erred in granting summary judgment without requiring plaintiff to address defendant’s affirmative defenses. We address Govin-dasamy’s contentions in this order.

2. Govindasamy contends that the trial court’s grant of summary judgment was premature because Wells Fargo had not yet responded to his discovery requests. Govindasamy contends that he served a Request for Admissions upon Wells Fargo on October 13, 2010, almost three months after being served with the motion for summary judgment and only five days before the scheduled hearing. He also notes that in a pleading he captioned “Motion to Dismiss Plaintiffs Motion for Summary Judgment” and filed on August 17, 2010, he requested an extension of time to conduct discovery. He argues that the trial court’s ruling was premature and should have been withheld until the Request for Admissions had been responded to. Because the appellate record contains neither the Request for Admissions nor a ruling by the trial court addressing the request for an extension of time to conduct discovery, “[w]e cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court.”

The trial court was not required to wait until the end of the discovery period prescribed by USCR Rule 5 before ruling on summary judgment. A plaintiff may move for summary judgment “at any time, after the expiration of 30 days from the commencement of the action.” If a hearing is desired, at least 30 days from service of the motion must elapse before a hearing can be held, to give respondent time to file opposing evidence. Both of these requirements were met in this case. If a respondent requires further discovery to properly respond to a motion, possible responses may include filing a motion to extend time to respond to the motion, a motion to compel, if the responses are overdue, or an affidavit pursuant to OCGA § 9-11-56 (f) setting forth why the respondent is unable to proceed without further discovery. Govindasamy did not avail himself to any of these methods and did not provide any evidence in his response brief to Wells Fargo’s motion for summary judgment. The record does not reveal any effort on the part of the appellant to secure a ruling from the trial court on his request for a continuance, nor does the record indicate that the appellant objected to the trial court hearing the motion for summary judgment prior to obtaining the responses to his Requests for Admissions, and thus he has not preserved this enumeration of error for our review. “The burden is on the party alleging error to show it affirmatively by the record and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.”

3. Govindasamy next contends that the trial court erred in granting summary judgment to Wells Fargo because it did not address the affirmative defenses raised in Govindasamy’s answer before issuing a ruling.

Upon reviewing the record, we conclude that Govindasamy has failed to present evidence sufficient to create a triable issue of fact as to Wells Fargo’s claims against him. Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

OCGA § 9-11-56 (e) provides:

. . . When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Wells Fargo’s motion for summary judgment was supported by the affidavit of one of its authorized representatives and set forth facts supported by exhibits, which, when considered as a whole, conclusively established the debt owed by Govindasamy. Although Govin-dasamy filed a response in his “Motion to Dismiss Plaintiffs Motion for Summary Judgment,” he failed to comply with the requirements set forth in OCGA § 9-11-56 (e). Govindasamy did not provide an affidavit or other evidence rebutting Wells Fargo’s claims, but instead rested on conclusory statements contained in his pleadings. If a plaintiff on a motion for summary judgment introduces evidence showing that there is no genuine issue of material fact and that the plaintiff is entitled to prevail on the undisputed facts, and the defendant merely rests on the pleadings without offering any evidence to suggest any remaining factual issue, the trial court’s grant of summary judgment is correct. We find that the trial court did not err in granting summary judgment when Govindasamy failed to provide any evidence supporting his affirmative defenses in support of his opposition to summary judgment.

Judgment affirmed.

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

Decided July 22, 2011

Reconsideration denied August 18, 2011

Elamurughu Govindasamy, pro se.

Charles T. Day III, for appellee.

       (Punctuation and footnote omitted.) Wright v. AFLAC, Inc., 283 Ga. App. 890, 891-892 (1) (643 SE2d 233) (2007).

       Id., citing Burt & Burt &c. v. Dougherty County Tax Assessors, 256 Ga. App. 648 (1) (569 SE2d 557) (2002). See also Salazar v. State, 256 Ga. App. 50, 53 (4) (567 SE2d 706) (2002) (holding that a pro se defendant is not held to a different or more lenient standard merely because he elected to proceed pro se; one who knowingly elects to represent himself assumes full responsibility for complying with the substantive and procedural requirements of the law).

       As cited above, the appellate record does not contain a copy of the October 13, 2010 Request for Admissions.

       (Citation and punctuation omitted.) Lawal v. Stanley Bostitch Co., 209 Ga. App. 439, 441 (433 SE2d 706) (1993).

       Rule 5 of the USCR “does not conflict so as to prevent ruling on a motion for summary judgment until six months have passed, if the case is otherwise ripe for summary judgment.” Thurmond v. Richmond County Bd. of Ed., 207 Ga. App. 437, 439 (1) (428 SE2d 392) (1993). See also Gray v. Whisenaut, 258 Ga. 242 (368 SE2d 115) (1988) (noting that although USCR Rule 5 establishes a maximum six-month discovery period, the court may change the time allowed “in its discretion”).

       OCGA § 9-11-56 (a).

       OCGA § 9-11-56 (c).

        Summers v. Deutsche Seereederei Rostok Grnbh, 220 Ga. App. 125, 126-127 (2) (469 SE2d 289) (1996).

       There is no transcript of the oral argument in the appellate record, and thus Govindasamy has failed to preserve the issue on appeal. Bryant v. Wal-Mart Stores, 203 Ga. App. 770, 773 (4) (417 SE2d 688) (1992) (holding that trial court did not err in ruling on appellee’s motion for summary judgment before appellees complied with appellant’s discovery request when the record reflected that appellant filed a motion to compel three days before the hearing and the record did not reveal any effort on the part of appellant to secure a ruling from the trial court on its motion to compel or object at the trial court hearing the motion for summary judgment prior to ruling on the motion to compel).

       (Punctuation and footnote omitted.) Capital Land USA v. Mitsubishi Motors Credit of America, 308 Ga. App. 71, 72-73 (1) (706 SE2d 590) (2011).

       OCGA § 9-11-56 (c).

        IH Riverdale, LLC v. McChesney Capital Partners, LLC, 280 Ga. App. 9 (633 SE2d 382) (2006); Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

        Cox v. Frost, 147 Ga. App. 429, 429 (249 SE2d 145) (1978); see also Capital Land USA, supra (“[Alppellants may not rest on general allegations to [appellee’s] motion for summary judgment, but must come forward with specific facts to show there is a genuine issue for trial.”) (punctuation and footnote omitted).


text:
    A11A1455.
    ROSEBOROUGH v. THE STATE.
    (716 SE2d 530)
   Mikell, Judge.

Brandon Roseborough appeals from the trial court’s order finding that his plea counsel rendered effective assistance. Rosebor-ough pled guilty to child molestation, but now contends that his plea was not knowingly and voluntarily entered, he did not receive effective assistance of counsel, and the trial court erred in denying his motion to transfer his case to juvenile court.

On March 15, 2004, Roseborough, who was then 16 years and nine months old, was indicted by the Clay County Grand Jury for rape, aggravated child molestation, and child molestation. On February 7, 2005, represented by counsel, Roseborough pled guilty to the child molestation count and, by agreement with the district attorney, the other two counts were nolle prossed. There was no sentence recommendation or agreement and Roseborough was advised that sentencing was at the judge’s discretion. On February 17, 2005, Roseborough filed a motion to transfer the case to juvenile court on the ground that the superior court no longer had jurisdiction or, alternatively, that the superior court should exercise its discretion to transfer the matter to juvenile court. Following a sentencing hearing and hearing on the motion to transfer on February 22, 2005, the superior court denied the motion to transfer and sentenced Rosebor-ough on March 4, 2005, to 20 years, to serve 15. On March 21, 2005, plea counsel filed a notice of appeal. After the case was docketed in this court, new counsel was appointed, and he filed a motion to remand for an evidentiary hearing on whether plea counsel had rendered ineffective assistance. This court remanded the case for an evidentiary hearing on the issue of effective assistance of counsel and ordered that “[i]f ... the trial court finds that Roseborough did ha[ve] effective assistance, Roseborough shall have 30 days in which to appeal the trial court’s ruling on that issue.” (Emphasis supplied.)

On December 16, 2010, following a hearing on June 9, 2006, the trial court found that plea counsel rendered effective assistance of counsel.

1. We first consider the procedural posture of this case and the scope of our review.

Roseborough filed no motion to withdraw his plea of guilty with the trial court during the term in which it was entered. While a timely notice of appeal was filed, as set out above, the case was remanded to the trial court only for consideration of the issue of effective assistance of counsel.

Although appellate counsel filed a motion for new trial alleging ineffective assistance of counsel, as well as other grounds, during the hearing on June 9, 2006, the state objected to it, and the trial judge held that he was “here to hear only argument and evidence supporting the claim of ineffective assistance of counsel.”

A motion for new trial can not be made upon a plea of guilty, for the reason (if for no other) that there is no verdict where there is a plea of guilty, and the only object of the motion for new trial is to set aside a verdict which has been rendered, so that upon another trial a different verdict may be obtained. The purpose of [a] motion for a new trial is to obtain another trial. Where a plea of guilty is filed the judgment does not rest upon the results of a trial, but upon the plea, which is nothing more than a confession in judicio. The verdict is the point of attack to which a motion for a new trial and everything it contains is directed. If there is no verdict a motion has no raison d’etre.

In addition to being improper following the entry of a guilty plea, the motion for new trial was untimely, having been filed more than a year after entry of judgment, and is therefore void and of no effect.

2. In light of our holding in Division 1, pursuant to this court’s order remanding the case for a hearing, we will address only Roseborough’s second enumeration of error asserting ineffective assistance of counsel.

Even a defendant who waives his right to trial and enters a

guilty plea is entitled to effective legal assistance. In order to show a constitutional violation of this Sixth Amendment right, however, the defendant must make a two-prong showing. He must demonstrate that his counsel erred and also establish the reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. With regard to the performance prong, the question is whether the attorney’s advice falls within the range of competence of attorneys in criminal cases.

Roseborough contends that his plea counsel rendered ineffective assistance by incorrectly agreeing with the trial court’s statement during the plea hearing that the minimum sentence he faced was one year when, in fact, it was five years.

Although Roseborough challenges the information he was provided regarding the minimum possible sentence, “a defendant’s otherwise voluntary guilty plea is not invalidated merely because the range of punishment on the plea was never recited to him, when he makes no claim that he was disadvantaged by the omission or even that he was in fact unaware of the possible sentence which could be imposed.”

During the hearing on his ineffective assistance claim, Rosebor-ough testified as follows:

A. Well, I heard 1 to 20. . . .
Q. What did the judge say?
THE COURT: The record would reflect that he said — apparently, the transcript said I said 1 to 20. . . .
Q. What did the Judge tell you it was?
A. At that time, I didn’t remember what he told me. What the Judge told me on the paper, it said 1 to 20.
Q. On what paper?
A. On the background paper.
Q. On the background paper, that’s after you got sentenced?
A. After I got sentenced.

Decided August 19, 2011.

Robert R. McLendon TV, for appellant.

Q. So at the time that you were entering your plea, whether it was 5 to 20 or 1 to 20, it didn’t affect you one way or the other, did it?
A. Yes, it did affect me.
Q. How did it affect you?
A. Because 5 to 20, I wouldn’t take nare [sic] one of them because of what I know on my case. So I know I wasn’t guilty, know what I’m saying? So what, I’m going to take 5 years? 5 years for — (unintelligible) wanting to take that much.
Q. But you were wanting to take how much?
A. I wasn’t wanting to take nothing.
Q. So the 5 or 1, neither one affected you?
A. (Unintelligible).
Q. But you did?
A. Because I was tricked into it.
Q. How?
A. By the lawyer. I don’t know anything about the law or anything. I had to go by what he tell me.
Q. Okay. But as far as whether it was 1 to 20 or 5 to 20, that didn’t matter because you didn’t want none of it; right?
A. No, I didn’t want none of it.

(Emphasis supplied.)

Although plea counsel acknowledged that he had affirmed the trial court’s incorrect statement of the minimum possible sentence during the plea hearing, he also testified that it was his normal practice, before a plea hearing, to go over the range of the sentence possibilities with his clients.

Pretermitting the issue of whether Roseborough has established the performance prong of ineffective assistance by plea counsel, we find, based on his own testimony, that Roseborough has not established the reasonable possibility that, but for his counsel’s errors, he would have proceeded to trial rather than enter a guilty plea.

Judgment affirmed.

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

T. Craig Earnest, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

       We note that
      [a] criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. An appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.
      (Citations and punctuation omitted.) Barlow v. State, 282 Ga. 232, 233 (647 SE2d 46) (2007).

        Bearden v. State, 13 Ga. App. 264, 265-266 (79 SE 79) (1913). Accord, e.g., Wofford v. State, 141 Ga. App. 207 (233 SE2d 53) (1977); Welch v. State, 63 Ga. App. 277, 279 (11 SE2d 42) (1940).

       OCGA § 5-5-40 (a); Peters v. State, 237 Ga. App. 625 (516 SE2d 331) (1999).

        Peters, supra.

       (Citations and punctuation omitted.) Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999).

       OCGA § 16-6-4 (b) (1) provides that “[e]xcept as provided in paragraph (2) of this subsection, a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years.”

        Hill v. Hopper, 233 Ga. 633, 634 (212 SE2d 810) (1975).

       Cf. id.; Hubbard v. State, 301 Ga. App. 388, 390 (687 SE2d 589) (2009).


author: Andrews, Judge.

text:
    A11A1273.
    CAMPBELL v. SAVANNAH MOTORS, INC.
    (716 SE2d 534)
   Andrews, Judge.

George Campbell sued Savannah Motors, Inc. to recover for injuries he allegedly suffered while working as an independent contractor on the Savannah Motors premises. After a tank containing helium gas fell over and struck Campbell, he claimed that Savannah Motors was liable for his injuries because it negligently failed to keep its premises safe for invitees in violation of OCGA § 51-3-1, and because it was vicariously liable on the basis that one of its employees negligently knocked over the tank. OCGA §§ 51-2-1 (a); 51-2-2. Campbell appeals from the trial court’s grant of summary judgment in favor of Savannah Motors on both claims. We affirm the grant of summary judgment on the premises liability claim under OCGA § 51-3-1, and reverse the grant of summary judgment on the vicarious liability claim.

To obtain summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmov-ing party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in the light most favorable to Campbell, the relevant facts are as follows. Campbell was working on the Savannah Motors premises as an independent contractor for National Marketing Associates, Inc., a company contracted by Savannah Motors to conduct a week-long car sales event. Campbell participated along with National Marketing and Savannah Motors employees in “ballooning up the lot,” for the sale using helium to fill promotional balloons to attach to the cars. About eight helium tanks were stored in an office space which was used by Savannah Motors during the sale to provide a buffet-style lunch to Savannah Motors and National Marketing employees. Campbell was allegedly injured while waiting in line for lunch when someone accidentally bumped into a helium tank and knocked it over and onto him. A Savannah Motors employee testified that he saw a National Marketing employee accidentally bump into and knock the tank over causing it to hit Campbell. Although Campbell testified that he did not see who knocked the tank over, he said that, immediately after the tank hit him, he saw a Savannah Motors manager “scolding” a Savannah Motors employee for knocking over the tank.

There is no evidence that the helium tanks were unstable, easy to knock over, or otherwise constituted a hazard because they were likely to fall over and injure someone. To the contrary, evidence showed that the tanks were in a clearly visible location and had stable bases about two feet wide. Similar helium tanks were commonly used by Savannah Motors and other car dealerships around the country during sales events, but there was no evidence that a tank at Savannah Motors or anywhere else had previously been knocked over or had fallen on anyone. Although there was evidence that the office was crowded with people for lunch, there was no evidence that the office was so small or crowded that people exercising ordinary care could not avoid contact with the clearly visible tanks. Campbell, who had worked with helium tanks at many sales around the country, testified that he had never previously heard of a tank falling on anyone and characterized the present event as a “freak accident.”

1. Savannah Motors had a duty under OCGA § 51-3-1 to exercise ordinary care to keep its premises safe for invitees. “The duty imposed under OCGA § 51-3-1 does not make a premises owner an insurer of an invitee’s safety, but requires the exercise of ordinary care to protect the invitee from unreasonable risks of harm of which the premises owner has superior knowledge.” Ferguson v. Premier Homes, Inc., 303 Ga. App. 614, 616 (695 SE2d 56) (2010); Robinson v. Kroger Co., 268 Ga. 735, 740 (493 SE2d 403) (1997).

The owner/occupier is not required [under OCGA § 51-3-1] to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. This includes . . . taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.

Id. (citations and punctuation omitted). On the present record, we find as a matter of law that the possibility of the helium tank being accidentally knocked over onto Campbell was not a foreseeable danger or an unreasonable risk of harm under OCGA § 51-3-1. Accordingly, Savannah Motors’ failure to protect Campbell from being struck by the tank was not a breach of its duty under OCGA § 51-3-1 to exercise ordinary care. The trial court correctly granted summary judgment in favor of Savannah Motors on this claim.

2. Campbell sought to impose vicarious liability on Savannah Motors on the basis that one of its employees negligently knocked over the tank and caused it to hit him. OCGA §§ 51-2-1 (a); 51-2-2. The trial court granted summary judgment in favor of Savannah Motors on this claim by holding that the record showed without dispute that the person who knocked over the tank was not an employee of Savannah Motors. But Campbell testified that, immediately after the accident, he saw a Savannah Motors manager scold one of his employees for accidentally knocking over the tank. This was evidence of an admission by the manager that a Savannah Motors employee knocked over the tank. Campbell’s testimony as to the manager’s admission was properly part of the record to be considered on summary judgment as an exception to the hearsay rule because it was made within the res gestae of the underlying event. OCGA § 24-3-3; Barrett v. J. H. Harvey Co., 240 Ga. App. 508, 509 (523 SE2d 912) (1999); Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 426 (504 SE2d 245) (1998). Because a disputed issue of fact exists as to whether a Savannah Motors employee negligently knocked over the tank, the trial court erred in granting summary judgment to Savannah Motors on this claim.

Decided August 23, 2011.

Savage, Turner, Pinson & Karsman, Brent J. Savage, Kathryn H. Pinckney, David S. Eichholz, for appellant.

Brennan & Wasden, Joseph P. Brennan, Gregory G. Sewell, for appellee.

Judgment affirmed in part and reversed in part.

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


text:
    A11A1319.
    129 ACRES, INC. et al. v. ATLANTA BUSINESS BANK.
    (716 SE2d 536)
   Andrews, Judge.

Atlanta Business Bank held a promissory note and a deed to secure debt given by 129 Acres, Inc. and guaranteed by Greg Shoops and R. Chris Belans (collectively, “defendants”). After defendants defaulted, the bank exercised the power granted in the deed to conduct a foreclosure sale of the real property, and thereafter filed an action to confirm the foreclosure in the Paulding County Superior Court pursuant to OCGA § 44-14-161. The trial court confirmed the sale, holding that defendants were properly served with notice, that the foreclosure sale was lawfully conducted, and that the property sold for at least its fair market value. On appeal from the confirmation order, defendants argue the trial court should have dismissed the confirmation action because the bank did not properly report the sale to the court in that Shoops and Belans were not listed personally in the initial report filed with the court. We disagree and affirm.

The record shows that the bank loaned defendants $4,922,000 on security of roughly 129 acres of subject property on November 29, 2006. The bank initiated foreclosure proceedings after defendants defaulted. The property was sold to Atlanta Business Bank for $2,850,000. The bank then filed an application for confirmation of sale under power pursuant to OCGA § 44-14-161, reporting the foreclosure sale to the court and naming 129 Acres as the only respondent. The bank later moved to add Shoops and Belans as parties to the confirmation proceedings, which motion was granted. Following court-authorized service by publication on Shoops and Belans and service on the Secretary of State for 129 Acres, the court confirmed the foreclosure sale as to all three defendants.

The relevant part of Georgia’s confirmation statute provides:

When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

OCGA § 44-14-161 (a) (emphasis supplied). “[OCGA § 44-14-161] is in derogation of common law and must be strictly construed.” Bentley v. North Ga. Production Credit Assn., 170 Ga. App. 361 (317 SE2d 339) (1984).

Given that we must construe the confirmation statute strictly, we cannot infer any requirement that debtors must be personally named in the report of sale given to the superior court judge of the county in which the land is located. We have not held that subsection (a) of the confirmation statute imposes a requirement that all guarantors must be named personally in the foreclosure report filed with the superior court. The requirements of subsection (a) are intended to give notice to the court, rather than the debtors. Bridges v. CB&T Bank of Middle Ga., 306 Ga. App. 277, 278 (701 SE2d 898) (2010) (“The thirty-day report to the judge is not intended to give notice to the debtor.”). Additionally, courts have not traditionally been strict when considering subsection (a) reporting requirements. See Hernandez v. Resolution Trust Corp., 210 Ga. App. 538 (1) (436 SE2d 534) (1993) (foreclosure report was properly made to superior court judge, though not to specific judge to whom case assigned); Flat Shoals Land Holding, LLC v. Decatur First Bank, 307 Ga. App. 536, 538 (705 SE2d 311) (2011) (bank’s delivery of file-stamped copy of petition seeking confirmation of nonjudicial sale of property to reception desk on floor where judge’s office was located complied with the statutory reporting requirement, even though it was not presented to the judge personally, where the petition was presented in a manner authorized by the judge).

Decided August 23, 2011.

Schreeder, Wheeler & Flint, John A. Christy, King & Spalding, Philip R. Green, for appellants.

Defendants cite Ameribank, N.A. v. Quattlebaum, 269 Ga. 857 (505 SE2d 476) (1998), in arguing that notice was insufficient here. It is true that the Ameribank court held a confirmation improper because notice was not sufficient under OCGA § 44-14-161 (c) and because a guarantor was not named personally as a party to the confirmation proceeding. Ameribank, 269 Ga. at 860. But the issue in Ameribank was “the necessity to name the debtor in the application for confirmation and the source of notice contemplated by OCGA § 44-14-161 (c)” rather than a party’s reporting requirements to the court under OCGA § 44-14-161 (a). Id. at 859.

These defendants do not argue that they were given improper notice, that they were improperly served, or that they were not named as parties to the confirmation proceeding as required under the confirmation statute and Ameribank. The sales price was declared to be at least fair market value, and Shoops and Belans were made parties to the confirmation proceeding and were properly served with notice of the confirmation hearing more than five days before the hearings were held. Atlanta Business Bank also properly, “within 30 days after the [foreclosure] sale, report[ed] the sale to the judge of the superior court of the county in which the land is located” as required under OCGA § 44-14-161 (a). We therefore affirm the trial court’s confirmation of the sale.

Judgment affirmed.

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

Ana M. Rountree, for appellee.

       See OCGA § 9-11-21 (concerning joinder of parties); Small Business Admin. v. Desai, 193 Ga. App. 852, 853 (1) (389 SE2d 372) (1989) (motion to join proper party should have been granted because the Civil Practice Act applies to confirmation proceedings).


text:
    A11A1380.
    DAHLMAN v. THE STATE.
    (716 SE2d 538)
   Andrews, Judge.

Calvin Harold Dahlman was found guilty by a jury of manufacturing methamphetamine in violation of OCGA § 16-13-30 (b) and possession of substances with the intent to use them to manufacture methamphetamine in violation of OCGA § 16-13-30.5 (a). He claims on appeal that the evidence was insufficient and that the trial court erred by refusing to merge the conviction for possession with intent to manufacture into the conviction for manufacturing. We find that the evidence was sufficient, that the convictions did not merge, and affirm.

1. Pursuant to a warrant, police searched the residence where Dahlman lived and found a clandestine laboratory for the manufacture of methamphetamine (a meth lab). After being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), Dahlman told police that all the evidence recovered from the rear bedroom of the residence belonged to him. Police officers experienced in identifying the components of a meth lab found various items and substances commonly used to manufacture methamphetamine in the rear bedroom and the adjacent bathroom. Dahlman testified and admitted that he used methamphetamine, but he denied that the rear bedroom or the bathroom was being used as a meth lab. Although Dahlman admitted that he owned the various items and substances identified as meth lab components, he claimed that he used them only for work he did around the residence. Evidence showed that some of the substances had been combined in containers, and a forensic chemist from the Georgia Bureau of Investigation Crime Lab testified that a liquid substance found in the residence tested positive for methamphetamine. The evidence was sufficient for the jury to find beyond a reasonable doubt that Dahlman was guilty of manufacturing methamphetamine in a meth lab at the residence, and was guilty of possessing substances with the intent to use them to manufacture methamphetamine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Dahlman contends that manufacturing methamphetamine in violation of OCGA § 16-13-30 (b) necessarily included possession of the substances used in the manufacturing process in violation of OCGA § 16-13-30.5 (a) (1), therefore both offenses arose from the same conduct and merged under the Fifth Amendment double jeopardy clause.

OCGA § 16-13-30 (b) provides that “it is unlawful for any person to manufacture . . . any controlled substance” including methamphetamine. OCGA § 16-13-30.5 (a) (1) provides that “[i]t shall be illegal for a person to possess, whether acquired through theft or other means, any substance with the intent to . . . [u]se such substance in the manufacture of a . . . Schedule II controlled substance” including methamphetamine.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The substantive aspect of the protection afforded under the double jeopardy clause prohibits multiple convictions or punishments arising from the same conduct. Drinkard v. Walker, 281 Ga. 211, 212 (636 SE2d 530) (2006). As to the substantive bar of double jeopardy, OCGA § 16-1-7 (a) provides in relevant part that,

[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if. . . [o]ne crime is included in the other. . . .

Under OCGA § 16-1-6 (1), one crime is “included in” another crime where “ ‘[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of [the other crime].’ ” Drinkard, 281 Ga. at 213. To determine under OCGA § 16-1-6 (1) whether convictions under two criminal provisions merge because one is included in the other, the “required evidence” test is used to determine “whether each provision requires proof of a fact which the other does not.” Id. at 215 (citation and punctuation omitted). As explained in Drinkard,

the important question is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.

Id. at 216.

Even if it is possible for both offenses at issue to be committed by the same conduct, in this case evidence showed that Dahlman committed the charged offenses by separate acts occurring at different times. The search of the residence produced evidence which showed that Dahlman had already completed the manufacture of methamphetamine, and other evidence which showed that, at the time of the search, he possessed substances with the intent to use them to manufacture more methamphetamine in the future. Because the separate offenses for which Dahlman was convicted did not arise from the same conduct, he was not placed in double jeopardy and the convictions did not merge. Waits v. State, 282 Ga. 1, 4 (644 SE2d 127) (2007); Ledford v. State, 289 Ga. 70, 71-72 (709 SE2d 239) (2011).

Decided August 23, 2011.

Teddy L. Henley, for appellant.

Leigh E. Patterson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A11A1473.
    BEURSKEN et al. v. GWINNETT COUNTY et al.
    (716 SE2d 540)
   Andrews, Judge.

Viki Beursken died of a heart attack suffered soon after she refused transport to a hospital by a Gwinnett County ambulance crew. On appeal from the trial court’s grant of summary judgment in this wrongful death action to defendants Gwinnett County and the crew members, Mrs. Beursken’s survivors and heirs argue that the county and its employees are not entitled to immunity under either OCGA § 31-11-8, which exempts persons rendering emergency care from liability concerning it, or the doctrine of sovereign immunity. We disagree and affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the non-movant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

So viewed, the record shows that on the evening of April 5, 2008, Jeff Beursken called 911 and told the operator that he thought his wife was having a heart attack. Mr. Beursken said that his wife, who suffered from high blood pressure, was having difficulty breathing, that she was “clammy,” had a “heavy chest,” and had taken aspirin 20 minutes before. A Gwinnett County Fire and Emergency Services ambulance crew consisting of paramedics Jeremy Austin and Bobby Jones, and assisted by Keri McNaughton, arrived at the Beursken house 11 minutes after receiving the call.

Mrs. Beursken told the paramedics that chest discomfort, “more pressure than pain” and “went to her shoulder,” had awoken her 30 minutes before. Her skin was “cool,” “pale,” “ashen,” and “moist,” but she had no vomiting or breathing difficulties. Mr. Beursken testified that the men told his wife that she was not having a heart attack, although the men testified that they told her that she might be having one. When an electrocardiogram printed out a result reading “normal” but “unconfirmed,” the medics told Mrs. Beur-sken that her heart “appeared to be fine” and that she might be suffering from the flu or sleep apnea, but that “there’s only one way to find out” and that was “to take a ride to the hospital with us.” Based on the paramedics’ statements that she was not having a heart attack, however, the couple decided not to go to the hospital. Mrs. Beursken also appeared and felt better by this time. The paramedics then printed out a refusal of transport form, which Mr. and Mrs. Beursken both signed, acknowledging that Mrs. Beursken had “been informed of the risks in refusing medical care and/or transport” and that she “release[d] Gwinnett County, its officers, agents, and employees from any and all liability and/or responsibility for any injury or illness” that might result from her refusal.

The paramedics left the house at 11:29 p.m. Shortly afterward, Mrs. Beursken suffered a second cardiac event, at which time the same crew returned to the house and transported her to a local hospital. She was pronounced dead at 4:40 the following morning.

In April 2008, Gwinnett County charged a “base transportation rate” and a “mileage rate” for any ambulance transport for the purpose of defraying its administrative costs, and not for the purpose of generating income. In accordance with its procedures, Gwinnett County generated a base rate of $700 and a mileage fee of $180 for a total charge of $880 for its transport of Mrs. Beursken after her second cardiac event. No charge was generated for the crew’s first visit because Mrs. Beursken was not transported to the hospital at that time.

Gwinnett County’s bill for the transport following the second visit to the Beursken home did not issue for some time as the result of errors by the County’s billing contractor. A representative of the contractor eventually called Mr. Beursken, however, who sent a check payable to the County for $425, an amount he estimated as appropriate for both visits. Gwinnett County cashed the check, generated a new statement reflecting this payment for a balance of $455, and mailed the statement to the Beurskens’ address. The bill was never paid, was later referred to collections, and was charged off in December 2009.

The trial court granted defendants’ motion for summary judgment on grounds including that all of them were entitled to immunity under OCGA § 31-11-8.

1. The plaintiffs argue that the defendants are not entitled to immunity under OCGA § 31-11-8. We disagree.

OCGA § 31-11-8 provides in relevant part:

(a) Any person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim.
(c) The immunity provided in this Code section shall apply only to those persons who perform the aforesaid emergency services for no remuneration.

(Emphasis supplied.)

In 1987, six years after the adoption of OCGA § 31-11-8 into law, the Supreme Court of Georgia stated the extent and purpose of the statute as follows:

[The predecessor of OCGA § 31-11-8] was enacted as a part of a comprehensive Act to provide the citizens of this state with efficient, safe and professional ambulance service. [The statute] sets high standards for licensing the providers of ambulance service and provides for enforcement and regulation of those standards through administrative action. Once licensed, the providers of ambulance service are granted immunity from civil liability . . ., provided, however, [that] emergency care is rendered in “good faith. ” The statute is carefully drawn so as to grant immunity to providers of ambulance service only for their acts and omissions “in rendering such emergency care.” The legislature saw fit not to extend immunity to the negligence of an ambulance driver resulting from motor vehicle accidents.

(Emphasis supplied.) Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 754-755 (251 SE2d 250) (1978). The Anderson court also noted that in providing this form of immunity,

the General Assembly recognized that insurance for civil liability covered by the exemption would be extremely expensive and difficult to obtain. This problem, combined with the virtually unlimited potential civil liability, could be enough to drive many providers of ambulance service out of the business and greatly discourage others from entering. The effect, in many areas of the state, would be to make emergency ambulance service virtually unobtainable. In recognition of this, the legislature chose to grant immunity from civil liability to providers of such emergency services who were licensed under the Act.

Finally, the Anderson court implicitly rejected the position laid out in a dissent, which argued that emergency care providers might act in good faith and be liable for gross negligence nonetheless. Id. at 756-757.

As this Court has held, moreover, “among those ‘persons’ to whom [OCGA § 31-11-8] applies are ‘municipalities’ and ‘counties,’ as they are an ‘organization of any kind, including any governmental agency other than of the United States.’ ” Ramsey v. City of Forest Park, 204 Ga. App. 98, 99 (2) (c) (418 SE2d 432) (1992), quoting OCGA § 31-11-2 (18); Johnson v. Gwinnett County, 215 Ga. App. 79, 80 (449 SE2d 856) (1994) (quoting Ramsey).

(a) We need not decide whether Gwinnett County received “remuneration” for its services because it is undisputed that the County never charged Mr. Beursken for the crew’s first visit to the house — that is, the occasion when the alleged negligence occurred. Nor is there any dispute that these crew members were employed by the County’s state-licensed ambulance service. For both of these reasons, and as a “person” licensed to provide “emergency care,” the County is entitled to immunity for the alleged misconduct of its employees in this case. Ramsey, 204 Ga. App. at 99 (2) (c).

(b) Even construing this record in the light most favorable to Mr. Beursken, and pretermitting whether the crew members were even grossly negligent in the course of their response to the Beurskens’ first call, the record before us provides no evidence to support Mr. Beursken’s suggestion that the crew members acted in bad faith in the course of that response. Thomas v. DeKalb County, 227 Ga. App. 186, 190-191 (2) (489 SE2d 58) (1997) (affirming grant of summary judgment when, “[e]ven if hindsight might show that some things could have been done differently,” the “totality” of paramedics’ actions showed that they acted “in good faith with the intent to save [plaintiffs] life”).

The trial court did not err when it granted summary judgment to all defendants on the ground that they were entitled to immunity under OCGA § 31-11-8.

2. Our disposition of Division 1 moots plaintiffs’ remaining assertion of error concerning sovereign immunity.

Decided August 23, 2011

Conley Griggs, Richard A. Griggs, Mahaffey, Pickens & Tucker, Gerald Davidson, Jr., for appellants.

Williams, Morris & Waymire, Terry E. Williams, for appellees.

Judgment affirmed.

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


author: MCFADDEN, Judge.

text:
    A11A1165, A11A1166.
    AMIRFAZLI v. VATACS GROUP INC.; and vice versa.
    (716 SE2d 523)
   MCFADDEN, Judge.

These appeals arise out of a nonjudicial foreclosure sale under power. Mohammed Amirfazli (“the debtor”) sued VATACS Group, Inc. (“the secured creditor”) to set aside the foreclosure sale, alleging fraud, bad faith, and unjust enrichment. Both parties moved for summary judgment, and the trial court set aside the foreclosure after concluding that, as a matter of law, the sale did not comply with advertising requirements. It then held a bench trial regarding outstanding amounts owed by the debtor on the underlying promissory note. Based on the evidence presented, the trial court entered judgment for the secured creditor in the amount of $63,096.32.

In Case No. A11A1166, the secured creditor appeals from the trial court’s summary judgment order setting aside the foreclosure sale. It argues that the sale was conducted fairly and complied with Georgia law. The debtor appeals in Case No. A11A1165, challenging the money judgment entered following the bench trial. He claims that the trial court erred in refusing to consider his fraud claim, improperly found him liable for property taxes and interest on those taxes, and erred in awarding the secured creditor interest on the promissory note. Because questions of fact remain regarding the fairness of the foreclosure sale, we agree that the trial court erred in setting aside the sale on summary judgment. Accordingly, we reverse the judgment in Case No. A11A1166. Moreover, because the final money judgment in Case No. A11A1165 was entered in reliance on the order setting aside the foreclosure, it must be vacated.

Case No. A11A1166

1. The debtor argues that we should dismiss the secured creditor’s appeal for failure to comply with Court of Appeals Rule 25, which requires an appellant to support its claims of error with record citations. He notes that the secured creditor’s brief contains record references, but that they do not correspond to the record in Case No. A11A1165. In its notice of appeal, however, the secured creditor clearly stated that it would submit a record appendix pursuant to Supreme Court Rule 67 and Court of Appeals Rule 17. The references in the secured creditor’s brief are supported by that record appendix. Dismissal is not warranted.

2. Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmo-vant. See Bassett v. Jasper Banking Co., 278 Ga. App. 698, 699 (629 SE2d 434) (2006).

Viewed in this manner, the record shows that in December 1992, the debtor purchased land in Gwinnett County with financing from First Capital Bank f/k/a Central Gwinnett Bank (“the bank”). As security, the debtor granted the bank a deed to secure debt in the property. The debtor refinanced the loan in February 1997, giving the bank a promissory note secured by the original deed to secure debt. His business partner guaranteed the indebtedness.

The debtor missed payments in March and April 1997, and the bank wrote him and his partner on April 17, 1997, informing them that they needed to pay the past due amounts. Payment, however, was not received. On May 6,1997, the bank again wrote the partners, declaring the loan in default, accelerating the indebtedness, and demanding immediate payment within ten days. The letter included a Notice of Sale Under Power and indicated that absent payment, the property securing the note would be sold at an upcoming foreclosure sale.

The Notice, which identified the bank as the foreclosing party, ran in the Gwinnett Daily Post on May 9, May 16, May 23, and May 30, 1997. On May 19, 1997, in the midst of this advertising period, the bank sold and assigned the indebtedness to VATACS, the secured creditor that is a party to this appeal. An assignment document referencing the secured creditor and the security deed was filed with the clerk of the Gwinnett County Superior Court on May 30, 1997.

The secured creditor conducted the advertised foreclosure sale on June 3, 1997, bid on the property itself, and purchased it for $61,100. A few days later, the debtor sued the secured creditor to set aside the foreclosure, asserting that the sale was not conducted in good faith, was infected by fraud, and resulted in a price significantly lower than the property’s fair market value. Apparently, however, no written order was entered in that case for five years, and the complaint was dismissed by operation of law. See OCGA § 9-2-60 (b). The debtor filed the instant action within the six month renewal period following the dismissal. See OCGA §§ 9-2-60 (c); 9-11-41 (e).

The parties subsequently filed cross-motions for summary judgment. Addressing the foreclosure issue, the trial court determined that the foreclosure proceedings were fatally flawed because the two advertisements published after the assignment to the secured creditor listed the bank — rather than the secured creditor — as the foreclosing party. It thus set aside the foreclosure sale.

It is true that “[i]f a notice or advertisement of a foreclosure sale under power does not substantially meet the legal requirements, the sale should be set aside.” Williams v. South Central Farm Credit, 215 Ga. App. 740, 742 (2) (452 SE2d 148) (1994). To void a sale, however, irregularities or errors in the advertisement must chill the price bid for the property. Id. “Errors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained.” Id.

The trial court found that the sale in this case was chilled as a matter of law because the May 23 and May 30 advertisements inaccurately identified the bank as the foreclosing party. To support this conclusion, it cited Cummings v. Anderson, 173 B. R. 959 (Bankr. N.D. Ga. 1994), aff'd, 112 F3d 1172 (11th Cir. 1997), a bankruptcy court decision from the Northern District of Georgia. But Cummings is distinguishable on its facts, and we therefore decline to follow it. There, a creditor accelerated the indebtedness remaining on a promissory note following default and advertised the property for a foreclosure sale. On the day of the sale, the creditor assigned the indebtedness to a third individual, who conducted the sale and ultimately purchased the property.

The bankruptcy court in Cummings set aside the foreclosure sale, finding numerous problems with the proceedings. Among other things, it determined that the advertising for the sale was inadequate, given the last-minute assignment. As explained by the court, the foreclosure “was conducted by a party and an attorney who did not advertise for foreclosure and gave no notice to anyone prior to foreclosure.” Cummings, supra at 963. The court concluded that these circumstances chilled the bidding process by “effectively preventing] the borrower, plaintiff, or anyone else, from reaching [the party conducting the sale], obtaining information concerning the foreclosure, or attending the foreclosure sale.” Id.

Relying on Cummings, the trial court determined that potential bidders were led to believe that the bank was the foreclosing lender in this case and thus “had no way to either contact [the secured creditor] about the impending foreclosure or appear at the [secured creditor’s] foreclosure sale.” Unlike in Cummings, however, the evidence demonstrates that interested bidders and parties had notice of the secured creditor’s involvement, despite the advertising error. The debtor testified that he and his partner knew about the assignment before the foreclosure sale. Moreover, the assignment document recorded in Gwinnett County on May 30, 1997, informed the public that the bank had transferred the indebtedness to the secured creditor. See, e.g., Leeds Bldg. Products v. Sears Mtg. Corp., 267 Ga. 300, 302 (1) (477 SE2d 565) (1996) (“[I]n the absence of fraud, a deed which, on its face, complies with all statutory requirements is entitled to be recorded, and once accepted and filed with the clerk of court for record, provides constructive notice to the world of its existence.”). Although the filing occurred only four days before the sale, some notice was given.

The dispositive question is whether the secured creditor exercised the power of sale “fairly and in good faith.” Aikens v. Wagner, 231 Ga. App. 178, 180 (2) (498 SE2d 766) (1998). The May 19 and May 30 advertisements contained inaccurate information regarding the foreclosing party. But other evidence shows that interested persons had at least constructive notice of the proper party prior to the sale. So the record does not demonstrate that, as a matter of law, the bidding was chilled or the sale was unfair; and the trial court erred in setting aside the foreclosure sale on summary judgment.

We cannot agree with the secured creditor, however, that it was entitled to summary judgment regarding the validity of the foreclosure sale. As noted above, the secured creditor did not file the assignment document until four days before the sale. Moreover, it has pointed to no evidence conclusively showing that, as a matter of law, the misinformation in the advertisement did not impact the bidding or that the sale was otherwise conducted fairly and in good faith. Simply put, questions of fact remain as to the sale’s validity. Accordingly, we reverse the judgment in Case No. A11A1166 and remand for further proceedings on the foreclosure issue. See Aikens, supra at 181 (factual issues remained as to whether foreclosure sale should be set aside).

Case No. A11A1165

3. In his appeal, the debtor challenges the money judgment entered for the secured creditor on the promissory note. Given our decision in Division 2, we agree that the money judgment cannot stand.

The trial court addressed the issue of taxes and amounts owed under the promissory note solely because it set aside the foreclosure sale, invalidated the foreclosure deed, and reinstated the note. Had it left the foreclosure sale in place, the court would not have addressed these issues. Accordingly, because we reversed the order setting aside the foreclosure sale in Case No. A11A1166, we must vacate the money judgment entered for the secured creditor. In so doing, we express no opinion on the merits of the debtor’s enumerated errors regarding the money judgment. We find only that because factual issues remain as to the validity of the foreclosure sale, the money judgment must be vacated. See Bassett, supra at 702 (2) (vacating ruling that depended on trial court finding that was reversed on appeal).

4. Finally, the debtor argues that the trial court erred in refusing to consider his fraud claim, which the court found to be insufficiently pled. Pretermitting whether any error occurred, we note that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). Absent a pretrial order, the right to amend ends only when trial begins. Nelson v. Zant, 261 Ga. 358, 359 (2) (405 SE2d 250) (1991).

The record shows that the trial court entered a pretrial order in this case. The secured creditor, however, objected to the order, and the trial court sustained the objection after finding that the order “as entered, is inconsistent, unclear and not properly adjusted to the pleadings and/or the Order on Summary Judgment.” At this point, therefore, no pretrial order exists. And although a trial was held, we are vacating the resulting judgment and remanding for new proceedings on the foreclosure and promissory note issues.

Under these circumstances, the debtor has the right to amend his complaint in accordance with OCGA § 9-11-15 (a), and he may cure any deficiencies in his fraud allegations. See Race Investments v. Hull, 278 Ga. App. 477, 482 (1) (a) (629 SE2d 26) (2006) (broad right to amend may not be exercised “after a case has been tried and a judgment rendered therein which has not been set aside or vacated”) (punctuation omitted; emphasis supplied); see also OCGA § 9-11-15 (c) (when a claim asserted through an amended pleading “arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading”); Cochran Mill Assocs. v. Stephens, 286 Ga. App. 241, 248-249 (3) (648 SE2d 764) (2007) (claim added through amendment to renewal complaint relates back to original action).

Judgment vacated in Case No. A11A1165. Judgment reversed in Case No. A11A1166.

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

Decided July 21, 2011

Reconsideration denied August 24, 2011

Amelia T. Phillips, for appellant.

Stevens & Stevens, Ronald S. Stevens, Andrew M. Stevens, for appellee.


author: Dillard, Judge.

text:
    A09A2060.
    THACKSTON v. THE STATE.
    (716 SE2d 571)
    Decided August 24, 2011.

      Steven A. Cook, for appellant.

      David McDade, District Attorney, Thomas E. Kegley, James A. Dooley, Assistant District Attorneys, for appellee.
   Dillard, Judge.

In State v. Thackston, 289 Ga. 412 (716 SE2d 517) (2011), the Supreme Court of Georgia reversed the judgment of this Court in Thackston v. State, 303 Ga. App. 718 (694 SE2d 136) (2010). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Ellington, C. J., Smith, P. J., Barnes, P J., Miller, P. J., Phipps, P J., Andrews, Mikell, Adams, Doyle, Blackwell, and McFadden, JJ., concur.


text:
    A11A0824.
    CAMPBELL v. THE LANDINGS ASSOCIATION, INC.
    (716 SE2d 543)
   Mikell, Judge.

Frederick M. Campbell appeals from the trial court’s grant of summary judgment on all five of his claims against The Landings Association, Inc. (hereafter “TLA”). Finding no error, 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. A defendant moving for summary judgment may put forth evidence to show that there is no issue of fact as to one or more elements of the plaintiffs causes of action or demonstrate that the record lacks sufficient evidence to support one or more of the plaintiffs causes of action. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant.

So viewed, the evidence was that Campbell and his wife moved to the Landings on Skidaway Island near Savannah in 1995. Their lot abutted the marsh and, in 2005, Campbell became interested in purchasing an airboat for his personal use. At that time, Dean Ayers was the office manager of the two marinas at the Landings. Sometime in the spring of that year, Ayers recalled Campbell coming into the marina office, saying that he was getting an airboat and that he wanted to keep it at the Landings. Campbell showed Ayers a letter from the Georgia Department of Natural Resources which Campbell claimed gave him permission to use the airboat in the marshes. Ayers read the letter and told Campbell that, in his opinion, that was not what the letter said.

Ayers advised Campbell that, in order to have a place at the Landings to store his boat, Campbell would have to fill out an application, consisting of three pages to be filled out and returned, with a set of rules and regulations regarding boat storage attached for him to keep. Campbell asked Ayers if he could guarantee that, when his boat, which was then being built, was delivered in the fall, there would be a space available for its storage. Ayers responded that the only way he could guarantee the space was if Campbell began to pay for it. Asked during his deposition if he had ever paid any money for a space at either marina, Campbell responded: “[n]o, I didn’t, because I never got any space. I wanted space. I asked for space. I didn’t get any space and I didn’t pay any money, because they had breached the contract.” Campbell said the breach occurred on or about August 11, 2006, when his airboat was delivered. He acknowledged that he did not pay for storage prior to the delivery.

On May 9, 2005, Campbell sent a fax to Stan Floyd, president of American Airboat Corporation, stating that “we believe that you are the right airboat builder for us and we intend to place an order with you shortly but if it is OK with you we need to now ask a few more questions.” Attached were four pages titled “Airboat Custom Specification Requirements and IMPORTANT QUESTIONS,” including “[n]eed complete Airboat and Engine Cover for year round OUTDOOR BOAT STORAGE at our home.” On May 26, 2005, Campbell traveled to Orange, Texas, and met with Floyd about his boat.

On June 24, 2005, Campbell sent an e-mail to American Airboat Corporation acknowledging receipt of a general boat order form and requesting “a specification sheet before I can sign off on an order.” (Emphasis supplied.)

On July 5, 2005, Campbell wrote a check for $32,000 to American Airboat Corporation. During his deposition on November 2, 2007, two copies of this check were tendered by TLA. Both were identical except for the notation on the memo line. On Exhibit 15, that line read “advance down payment on Purchase Contract.” Something had been scratched out between “on” and “Purchase Contract.” Asked “[d]o you know who might have scratched through it,” Campbell responded “I — I don’t know. I don’t know. I don’t remember.” Later, Exhibit 34 was introduced. The memo line read “advance down payment on For 7/4/05 Purchase Contract.” Asked if that were an accurate reading of the memo line, Campbell answered “That’s — that’s what the check says, but that could be mis — misleading in terms of how that’s interpreted.”

On July 21, 2005, Campbell returned to Walter Jennings of TLA the previously provided 2005 Dockage and Storage Agreement, signed by Campbell. Campbell handwrote on it, in pertinent part, the following: ‘ ‘this a new boat (airboat) being built for delivery between Sept. 15 and October 1st 2005. Walter has guaranteed Rack Space for boat and parking space for Trailer.”

On July 27, 2005, a seven page document containing specifications for a “20x8 Air Ranger 2005 Model” and reflecting a total price of $68,624.94 was signed by Feron Floyd for American Airboat Corporation and by Campbell.

By a fax of June 26, 2006, to American Airboat, Campbell began making arrangements for delivery of the airboat to the marsh adjacent to his home. As he stated, “I have decided because of the risk of the ‘lifts’ involved in dry storage at the Marina that I would be better off keeping the boat on the shore in front of our house.” On July 5, 2006, Campbell made the final payment of $36,043 to American Airboat Corporation. The airboat was delivered on August 11, 2006, and, pursuant to Campbell’s instructions, it was moored in the marsh tidal basin adjacent to his property. Campbell took the airboat out on three occasions. In voice messages left for Ken Durden, an employee of TLA in charge of covenant enforcement, on August 15 and August 21, 2006, Campbell reiterated his feeling that storage at the marina was not a good idea because of concerns with the lift and safety straps.

Shari Haldeman, the general manager of TLA, became aware of the airboat after its delivery when she began to receive complaints from residents about its placement in the marsh and the noise created by it. Ken Durden visited Campbell in August 2006 and told him he was not sure whether the covenants addressed the boat’s presence in the marsh, but he was sure that they did proscribe the parking of his boat trailer in his driveway.

Thereafter, Durden contacted the Department of Natural Resources (hereafter “DNR”), Coastal Resources Division, and the Chatham County/Savannah Police Department to report the airboat in the marsh and the noise complaints. In August 2006, Buck Bennett was compliance and enforcement manager for DNR and was responsible for enforcement of the Coastal Marshlands Protection Act. On August 18, 2006, he received a report from Corporal Bill Bryson that there was a vessel anchored in the marsh. Although no action was taken by the police, Bennett and Bryson of DNR did visit Campbell on August 23, 2006, and found that the airboat had caused some damage to the marsh. During that visit, Bennett delivered to Campbell a letter dated August 18, 2006, from Susan Shipman, Director of the Coastal Resources Division of DNR, directing Campbell “to cease operation of your watercraft through and over the jurisdictional marshes of the state of Georgia in such a manner as to cause any further impact to vegetated marshlands.”

Also, as a result of residents’ complaints about the airboat, general manager Haldeman formulated a policy for TLA that air-boats and high performance boats would not be accepted by the TLA marinas, effective August 23, 2006. On August 25, 2006, Campbell and his wife met with Haldeman and other TLA employees, and Campbell submitted his request that he be granted a waiver of the no airboat policy and be allowed to store his boat at one of the marinas. This request was denied.

On October 24, 2006, Campbell filed his complaint in this matter, seeking as damages the full purchase price of the airboat as well as other associated costs.

1. Campbell’s first enumeration is that “the existence of an enforceable storage contract is a question of fact.”

Pretermitting the fact that Campbell’s brief on this issue consists of one page and one line and contains only factual statements with no argument or citation of authority, in violation of Court of Appeals Rule 25 (a) (3), we address the issue of the existence of a contract vel non because it underpins all of his remaining claims.

In his complaint, Campbell alleged in his preliminary paragraphs that “[o]n or about July 21, 2005, [he] executed and sent in the documentation customarily used to secure a storage space.” Count 1 incorporated all the preliminary statements and further alleged that “Plaintiff and the Defendant entered into a contract whereby the Defendant would agree to provide dry storage and trailer space for the Plaintiffs airboat and trailer. Defendant breached this agreement.” In his brief here, Campbell states that he and Walter Jennings, on behalf of the marina, “entered into an oral boat storage agreement.” Mr. Campbell “then went back to Mr. Jennings for written verification of the agreement already in place.”

Whether the contention is that the contract was oral or written, Campbell has failed to show the elements of an enforceable contract. Under OCGA § 13-3-1, a valid contract includes “three elements: subject matter of the contract, consideration, and mutual assent by all parties to all contract terms.”

As far as this Court can discern from the pleadings and briefs submitted below, Campbell contends that, but for the promise by Jennings on behalf of TLA for storage of his airboat and trailer, he would not have purchased the airboat. That contention, however, is belied by the undisputed facts, as set out above. It is clear that, as of July 5, 2005, the date of the check written to American Airboat, if not sooner, Campbell had entered into a contract with American Airboat to purchase his boat. This was prior to his returning the signed 2005 Dockage and Storage Agreement to Jennings. Therefore, this written document could not have been a condition precedent to his agreement to purchase the boat.

Further, the Dockage and Storage Agreement states that it continues “on a month-to-month basis, being annually renewed until its termination by either party” and that the “ [ijnitial rent for the first month or partial month shall be paid upon the signing of this Agreement. Rent thereafter shall be due on the first day of each subsequent month until written notice from the owner.” (Emphasis supplied.) It is not disputed that, even assuming the July 21, 2005 document to be a contract, Campbell did not renew it before delivery of his boat in August 2006, nor did he ever pay rent.

Any oral contract depends upon statements of Jennings, who was not deposed and did not offer any affidavit, and these statements are therefore hearsay proving nothing for the purposes of summary judgment. Additionally, there is no evidence presented by Campbell as to the date of the alleged oral statement made by Jennings regarding storage of the boat and trailer.

Therefore, there was no error in the trial court’s grant of summary judgment to TLA on the breach of contract claim.

2. Campbell’s second enumeration is that his promissory estop-pel claim is a jury issue.

“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

In his promissory estoppel count, Campbell claims as damages the purchase price and other damages arising from the purchase of the boat. In his brief here, Campbell states that “Appellee’s agent promised the Plaintiff that Appellee would store his airboat.” Again, however, Campbell’s claim rests on statements allegedly made to him by Jennings, which are hearsay. Therefore, he has failed to come forward with any evidence creating an issue of fact on his claim for promissory estoppel, and the trial court did not err in granting summary judgment to TLA.

3. Campbell also contends that questions of fact remain on his negligence claim.

Count 3 of his complaint alleges that TLA

owed a duty to [him] to ensure that it was able to provide the services to [him] as promised and ensure the accuracy of statements and representations made to [him] with regard to this contract. The Defendant was negligent and/or reckless in failing to investigate availability and regulations and in making representations confirming its agreement of storage.

Again, this count relies primarily upon the hearsay statements of Jennings, which cannot supply the basis for denying TLA’s motion for summary judgment below.

To the extent that the argument here seeks to expand the claim alleged below to include the negligent passage of the rule banning airboats by Haldeman, that is improper and we will not consider it. “As appellate courts, we are courts for the correction of errors of law made by the trial courts. . . . An error of law has as its basis a specific ruling made by the trial court.” Without a ruling by the trial court on this specific claim of negligence, there is nothing for us to review.

4. Campbell’s fourth enumeration is that “the anti airboat rule created unilaterally by Ms. Halderman [sic] is invalid.”

In Count 4 of his complaint, Campbell alleged that “TLA owed a fiduciary duty to [him] as a resident and landowner at the Landings. Defendant breached the fiduciary duty and is liable to [him] for all damages arising from said breach” including the cost of his boat.

OCGA § 23-2-58 provides:

Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

As argued by TLA below in its motion for summary judgment, the burden is on the party asserting the existence of a fiduciary or confidential relationship to establish its existence. Campbell’s mere reliance upon his status as a resident of the Landings, without more, fails to establish such a relationship.

There was no error in the trial court’s grant of summary judgment to TLA on this claim.

5. Under the circumstances and given the clear state of the law, Campbell’s attorney could not reasonably have believed that this appeal would result in a reversal of the trial court’s decision. Therefore, we grant TLA’s motion to assess damages for a frivolous appeal, and we impose a $1,000 frivolous appeal penalty on Campbell and his attorney pursuant to Court of Appeals Rule 15 (b).

Cross-Appeal

6. In its cross-appeal, TLA argues that the trial court abused its discretion in denying its motion for attorney fees based on OCGA § 9-15-14 (b).

Decided August 24, 2011.

Duffy & Feemster, Matthew M. Bush, for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, William P. Stein-haus, Thornell Williams, Jr., for appellee.

“A prevailing party is not perforce entitled to an award of attorney fees under this statutory subsection” and a trial court need not make findings of fact in denying an award. An award under OCGA § 9-15-14 (b) “is entirely within the discretion of the trial court after considering all the facts and law.”

It is apparent from the record before this court that the proceedings below were hard fought and the feelings of the parties were intense. While another judge may have made a different ruling on the issue of attorney fees, we cannot say that the trial judge abused her discretion in denying TLA’s motion for attorney fees.

Judgment affirmed with direction.

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

       Breach of contract, promissory estoppel, negligence, breach of fiduciary duty, and attorney fees. No argument is made here regarding attorney fees and we do not consider that issue further. Court of Appeals Rule 25 (c) (2).

       Appellee TLA’s motion to strike appellant’s reply brief and reply to cross-appeal is hereby granted because appellant’s brief is in violation of Court of Appeals Rule 24 (f). Appellee’s motion for leave to file supplemental brief is rendered moot by the previous ruling. Appellant’s out-of-time motion to exceed page limit is hereby denied.

       (Citations and punctuation omitted.) Koncul Enterprises v. Fleet Finance, 279 Ga. App. 39 (630 SE2d 567) (2006).

       TLA is the property owners association for the Landings and is run by a general manager under the direction of its Board of Directors.

       OCGA § 12-5-280 et seq.

       Pursuant to Rule 25 (c) (2), we may consider such an enumeration of error abandoned.

       Jennings’ deposition was not taken by Campbell nor is there any affidavit from him in the record.

        Lifestyle Family v. Lawyers Title Ins. Corp., 256 Ga. App. 305, 309 (1), n. 3 (568 SE2d 171) (2002).

        Dasher v. Davis, 274 Ga. App. 788, 789 (618 SE2d 728) (2005); Adams v. Gay, 270 Ga. App. 65, 66 (1) (606 SE2d 26) (2004); Blue Cross &c., Inc. v. Kell, 227 Ga. App. 266, 270-271 (3) (488 SE2d 735) (1997).

       OCGA § 13-3-44 (a).

       (Citation omitted.) Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

        Savu v. SunTrust Bank, 293 Ga. App. 683, 690 (3) (668 SE2d 276) (2008). Accord Canales v. Wilson Southland Ins. Agency, 261 Ga. App. 529, 531 (1) (583 SE2d 203) (2003).

        Savu v. SunTrust Bank, supra at 691 (3); cf. Cox v. Athens Regional Med. Center, 279 Ga. App. 586, 593 (4) (631 SE2d 792) (2006).

       (Citation and punctuation omitted.) Bellah v. Peterson, 259 Ga. App. 182 (1), 183 (2) (576 SE2d 585) (2003) (considering denial of award under OCGA § 9-15-14 (a)).

       (Citation and punctuation omitted.) MARTA v. Doe, 292 Ga. App. 532, 540 (5) (664 SE2d 893) (2008); Doe v. HGI Realty, 254 Ga. App. 181, 184 (561 SE2d 450) (2002).

       Cf. Stewart v. Tricord, LLC, 296 Ga. App. 834, 836 (1) (676 SE2d 229) (2009).