text:
    A13A0507.
    A13A0508.
    A13A0509.
    ANDERSON v. JONES et al. NORTON v. ANDERSON. JONES et al. v. ANDERSON.
    (745 SE2d 787)
   ELLINGTON, Presiding Judge.

Ashden Anderson (formerly Norton) filed suit against her father, Scott Norton, and attorney Billy Jones and Jones’ law firm, Jones, Osteen and Jones (collectively “Jones”), alleging that Norton and Jones breached fiduciary duties owed to her and that Jones committed legal malpractice. Norton and Jones filed motions for summary judgment, which the trial court granted. Anderson appeals from that ruling. For reasons that follow, we affirm the trial court’s grant of summary judgment in Case No. A13A0507.

Viewed favorably to Anderson, the evidence shows that, on December 20, 1995, five-year-old Anderson and her family were involved in a serious motor vehicle accident with a truck driven by an employee of Del Monte Fresh Produce N.A., Inc. (“Del Monte”). Anderson’s injuries included a severed left hand, which was reattached, and a fractured skull. Norton sustained a ruptured spleen, broken ribs, a broken sternum, and a broken foot. Anderson’s mother, Lisa Cantey (formerly Norton), sustained broken ribs and a scalp laceration. Anderson’s younger brother, Jared Norton, was not injured.

Norton and Cantey retained Jones’ law firm to represent the family in their personal injury actions. Under the Retainer Agreements, Jones would be paid 33 1/3 percent of all sums recovered without the filing of a lawsuit, or 40 percent of all sums recovered if suit were filed, plus out-of-pocket expenses. After investigating the case, Jones filed two lawsuits in connection with the accident: one on behalf of Norton and Cantey, as Anderson’s parents and natural guardians, for Anderson’s injuries and one on behalf of Norton for his own injuries. The parties’ attorneys quickly began discussing settlement; an attorney for Del Monte’s insurers agreed that the “real issue” was the extent of Anderson’s damages. Norton and Jones testified that their primary focus in Anderson’s settlement was providing for her long term care by obtaining a life annuity that would provide regular payments totaling more than $6.75 million during her lifetime.

Days before trial was scheduled to begin in Anderson’s suit, Jones obtained written authority from Norton and Cantey to settle all of the family’s claims as follows: $1.75 million for Anderson’s injuries; $2.5 million for Norton’s injuries; and $300,000 for Cantey’s injuries; for a total of $4.5 million. Jones communicated this demand to Del Monte’s insurers as his “rock bottom” to settle all of the family’s claims, including those asserted in the two pending lawsuits. Jones testified that he had evaluated each family member’s case separately, discussed those values with Norton and Cantey, and then negotiated four separate settlements with Del Monte’s insurers. On February 28, 1997, the defendants accepted, and Jones asked for written confirmation. According to Jones, the insurer’s attorney said, “I’ll send you a letter. If it’s okay with you, I’ll just put the total in here. I won’t outline each case separately[.]” The insurer’s attorney’s letter referenced “a total payment to [Jones’] clients in the amount of 4.5 million dollars,” which Jones testified the attorney reached by adding the four separate figures.

Norton and Cantey petitioned the Superior Court of Liberty County to approve the $1.75 million settlement for Anderson’s injuries. They requested that the settlement be disbursed as follows: $750,000 to purchase an annuity with specified provisions; approximately $200,000 to providers for outstanding medical bills; $54,000 to Norton and Cantey for medical expenses they had paid; $577,500 (33 1/3 percent) in attorney fees; and the balance to Norton and Cantey as Anderson’s natural guardians to be used with court approval for Anderson’s benefit, support, and maintenance. From the annuity, Norton and Cantey would receive specified lump sum payments, as well as monthly payments, for Anderson’s support until she turned 18. In addition, Anderson would receive specified lump sum payments from the annuity from age 18 to age 50, as well as monthly payments, for life, beginning at age 23, for a total of at least $6.75 million over her lifetime. After a hearing, the court determined that the facts set out in the petition were true, that the $1.75 million settlement was fair, reasonable, just, and made in good faith, and that the proposed settlement was in Anderson’s best interest. Accordingly, the court approved the settlement. Norton and Cantey then petitioned to be, and the Probate Court of Liberty County appointed them to be, guardians of Anderson’s property, specifically the $1.75 million settlement.

On March 31,1997, Norton and Cantey, for themselves individually and as the parents of Anderson and of Jared Norton, executed a “Release of All Claims” arising from the accident, in favor of Del Monte, its employee, and its insurers, and they acknowledged the receipt of “the gross settlement sum” of $4.5 million. The “Release of All Claims” named Del Monte, its employee, and its two insurers as the entities being released and provided that the payment was in full settlement of the two pending lawsuits. Norton and Cantey also executed a “Settlement Agreement and Release” which specified that the $1.75 million settlement for their claims for Anderson’s injuries would be paid as follows: $1 million cash to them as Anderson’s parents and guardians of her property, and $750,000 for the annuity as provided in the probate court’s approval order. This “Settlement Agreement and Release” also named Del Monte, its employee, and its insurers as the entities being released.

A few months after the settlement, Norton filed for divorce from Cantey; he was awarded custody of Anderson. While the divorce was pending, the probate court appointed Thomas Ratcliffe as a guardian ad litem for Anderson. Ratcliffe petitioned for an accounting of the funds from her settlement. In August 2008, the parties reached a settlement to close the accounting proceeding, with Norton and Cantey each agreeing to pay Anderson $3,200. The parties, including Anderson, who had turned 18 on April 8, 2008, executed a document entitled “Consent Order Regarding the Obligations of Lisa Cantey,... Scott M. Norton and Thomas J. Ratcliffe, Guardian Ad Litem.” In that consent order, entered August 5, 2008, Anderson agreed, inter alia, that “Norton and . . . Cantey never knowingly or wrongfully obtained any money from [Anderson’s] annuity[.]” In addition, she agreed that Norton’s “total monetary obligation” to her was $3,200 and that, upon tender of that amount, all of Norton’s financial obligation to her as a result of the accounting proceeding would be fully satisfied.

In April 2012, Anderson filed the instant action, alleging that Norton breached his fiduciary duty as guardian of her interests. In addition, she alleged that Jones breached his fiduciary duty to her and committed legal malpractice in his representation of her. She attached the affidavit of an expert who opined that, once the family’s personal injury claims were settled for a lump sum of $4.5 million, Jones had a conflict of interest in representing her, Norton, and Cantey in apportioning the settlement. The trial court granted summary judgment in favor of Norton and Jones.

Case No. A13A0507

1. Anderson contends that the trial court erred in granting summary judgment on her legal malpractice claim against Jones.

In a legal malpractice action, the plaintiff must establish three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. . . . [W]ith respect to the “ordinary care, skill and diligence” element, the law imposes upon persons performing professional services the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.

(Citation and punctuation omitted.) Leibel v. Johnson, 291 Ga. 180, 181 (728 SE2d 554) (2012).

(a) Anderson’s malpractice claim is premised, in part, on her contention that Jones negotiated a $4.5 million global settlement with Del Monte’s insurers and then, in concert with Norton, divided the proceeds among the four family members, with Anderson receiving an unfairly small portion, considering her severe and permanent injuries. Anderson contends that Jones had a conflict of interest in representing all four plaintiffs (or potential plaintiffs) in apportioning the settlement, because the family members were then effectively competing against each other for a share of a finite amount of money.

There is no competent evidence in the record, however, to support Anderson’s position that Jones negotiated a lump sum settlement and then allocated the proceeds among the four family members. It is undisputed that Jones negotiated the settlements with attorneys for Del Monte’s insurers. Jones is the only person who participated in those negotiations who provided sworn testimony in this case. As noted earlier, he testified that he had evaluated each family member’s case separately, discussed those values with Norton and Cantey, and negotiated four separate settlements with Del Monte’s insurers.

Although Cantey testified that Jones allowed Norton to take most of the settlement, she lacked personal knowledge of the negotiations between Jones and the opposing attorneys. In addition, evidence from the attorneys for Del Monte’s insurers appears only in the form of a few letters from them to Jones. Even assuming that statements in those letters may properly be considered in the context of Jones’ motion for summary judgment, none of the letters contains any direct statements that the insurers offered a global settlement and that apportionment among the family members was left to Jones and/or Norton. Speculation from a reference in one of those letters to “a total payout to [Jones’] clients in the amount of 4.5 million dollars” meant that the family members’ claims were not considered and valued separately cannot stand in opposition to direct, testimony based on personal knowledge. Thus, on this record it is undisputed that Jones did not negotiate a lump sum settlement and then participate in an apportionment among the family members. Further, we note that $4.5 million was just a fraction of the total available insurance coverage. We conclude that Anderson has not identified any evidence that Jones had a conflict of interest.

Even assuming that Jones breached his fiduciary duty in his manner of settling Anderson’s claims, Anderson is unable to recover for legal malpractice because she is unable to show that she was damaged by such breach. There is no evidence that a $1.75 million settlement, including the life annuity, was inadequate or that Anderson would likely have obtained a greater settlement if she and her parents had been represented by separate legal counsel. A legal malpractice claim cannot be based upon speculation and conjecture. See Szurovy v. Olderman, 243 Ga. App. 449, 452-453 (530 SE2d 783) (2000).

(b) In addition, Anderson contends that, because parents are legally obligated to pay for their children’s medical treatment, Jones breached his professional duty to her by not structuring the settlement so that her medical expenses were paid out of Norton’s settlement instead of hers.

As Anderson contends, parents are responsible for medical expenses incurred in the treatment of their minor children. Wilson v. Obstetrics & Gynecology of Atlanta, 304 Ga. App. 300, 308 (3) (696 SE2d 339) (2010); In re Ray, 248 Ga. App. 45, 48 (3) (545 SE2d 617) (2001); Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386, 387 (491 SE2d 843) (1997). “Because parents have this responsibility, the right to recover damages for medical expenses incurred in such treatment is vested exclusively in a minor child’s parents.” (Citation and punctuation omitted.) Wilson v. Obstetrics & Gynecology of Atlanta, 304 Ga. App. at 308 (3). The right to recover damages for pain and suffering, on the other hand, is vested in the child, not in the parents. In re Ray, 248 Ga. App. at 48 (3). It follows that, generally, any amount recovered for a minor child’s medical expenses will be the parents’ property; any amount recovered for the child’s pain and suffering will be the child’s property.

Frequently, as in this case, the parents bring a single action to recover their own damages arising from their child’s injuries (e. g., the child’s medical expenses) and, as the child’s next friends, the child’s damages from the same occurrence (e.g., the child’s pain and suffering). Thus, the settlement of the action Norton and Cantey brought as Anderson’s parents for her injuries properly encompassed both Anderson’s medical expenses and her pain and suffering.

In addition, there is no expert opinion evidence that Jones breached a professional duty to Anderson by structuring the settlement so that her medical expenses were paid out of the $1.75 million settlement. See Leibel v. Johnson, 291 Ga. at 181 (Except in clear and palpable cases, expert testimony is necessary to establish the parameters of acceptable professional conduct for an attorney and the manner in which the defendant’s representation significantly deviated from those standards.). Indeed, Georgia law expressly factors a child’s medical expenses when providing for the approval of the settlement of a minor’s claim. Again, Anderson has not shown any breach of Jones’ duty to her.

Based on the foregoing, we conclude that the trial court properly granted Jones summary judgment on Anderson’s legal malpractice claim.

2. Anderson contends that the trial court erred in granting summary judgment on her claim against Jones for breach of fiduciary duty. The record shows that the claim duplicated her legal malpractice claim: the duties arose from the same source (that is, the attorney-client relationship), were allegedly breached by the same conduct, and allegedly caused the same damages. We conclude that Jones is entitled to summary judgment for the reasons explained in Division 1, supra. Oehlerich v. Llewellyn, 285 Ga. App. 738, 740-741 (2) (647 SE2d 399) (2007) (affirming summary judgment as to the plaintiff’s claim for breach of fiduciary duty, which called into question the degree of professional skill exercised by the defendant attorney and therefore merely duplicated the plaintiff’s unsupported claim for legal malpractice).

3. Anderson contends that her claim that Norton breached his fiduciary duty to her in the manner in which he apportioned the settlement with Del Monte’s insurers is not barred on the basis that the superior court approved the settlement. We disagree.

At the time Norton and Cantey agreed to settle Anderson’s claims, Georgia law provided for the protection of minors through judicial oversight of settlements under former OCGA § 29-2-16 (1997). Grange Mutual Cas. Co. v. Kay, 264 Ga. App. 139, 142 (1) (589 SE2d 711) (2003); Bacon v. Smith, 222 Ga. App. 542, 544 (3) (474 SE2d 728) (1996). The statute provided that “[a]ny settlement entered consistent with the provisions of this Code section shall be final and binding upon all parties, including the minor child.” (Emphasis supplied.) Former OCGA § 29-2-16 (j) (1997). Under the plain language of this statute, the settlement agreement is binding on Anderson as against any party to the agreement, including Norton. See Zepp v. Toporek, 211 Ga. App. 169 (438 SE2d 636) (1993). Consequently, the trial court did not err in granting Norton’s motion for summary judgment on Anderson’s claim that Norton breached his fiduciary duty to her in settling her claims.

Anderson argues that our decision in Zepp v. Toporek authorizes a claim for breach of fiduciary duty against her father, despite former OCGA § 29-2-16 (j). In that case, however, we held that an attorney could not assert the court-approved settlement of the minor plaintiff’s claim as a bar to the plaintiff’s malpractice claim because the attorney was not a party to the judgment approving the settlement, and because the judgment did not approve a settlement between the plaintiff and the attorney. 211 Ga. App. at 171-172 (1) (d). In this case, however, Norton was a party to the superior court’s judgment, and Zepp v. Toporek does not require a different result.

4. Anderson contends that, even though the petition to compel Norton and Cantey to account for funds from her $1.75 million settlement was resolved when the superior court approved the consent order, the doctrine of collateral estoppel does not bar her claim that Norton breached his fiduciary duty to her in the manner in which he applied those funds.

In Georgia, the collateral estoppel doctrine precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.

Decided July 1, 2013

Reconsideration denied July 17, 2013

Tony Center, for Anderson.

McKenna, Long & Aldridge, J. Randolph Evans, Oliver Maner, Patrick T. O’Connor, Timothy D. Roberts, for Jones et al.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, for Norton.

(Citations and punctuation omitted.) Shields v. BellSouth Advertising & Publishing Corp., 273 Ga. 774, 777 (II) (545 SE2d 898) (2001).

The final adjudication of the petition for an accounting bars Anderson’s claim against Norton. As noted above, Anderson, as an adult, consented to an order that settled the accounting proceeding and the claim that Norton improperly applied her settlement funds. Based upon the identity of parties and issues, collateral estoppel bars Anderson from relitigating this issue in the guise of a breach of fiduciary duty claim. Shields, 273 Ga. at 777-778 (II); Playnation Play Systems v. Hammer, 277 Ga. App. 675, 676-677 (627 SE2d 415) (2006).

5. Because the trial court did not err in granting the motions for summary judgment filed by Norton and Jones, their cross-appeals, Case Nos. A13A0508 and A13A0509, are dismissed as moot.

Judgment affirmed in Case No. A13A0507. Appeals dismissed as moot in Case Nos. A13A0S08 and A13A0509.

Phipps, C. J., and Branch, J., concur.

       Norton and Jones also filed motions to dismiss, which the trial court denied. Norton and Jones filed cross-appeals from the denial of their motions to dismiss, Case Nos. A13A0508 and A13A0509, respectively. Because the trial court’s grant of summary judgment was correct, as explained in Divisions 1-4, infra, the cross-appeals in Case Nos. A13A0508 and A13A0509 are moot. See Division 5, infra.

       “[T]° prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law[.]” (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010); OCGA § 9-11-56 (c). The trial court “must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. at 624 (1) (a). “[0]n appeal from the denial or grant of summary judgment^] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). Further, a grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond. City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369) (2002); La Quinta Inns, Inc. v. Leech, 289 Ga. App. 812, 819 (2) (658 SE2d 637) (2008). “It is the grant itself that is to he reviewed for error, and not the analysis employed.” (Citation and punctuation omitted.) La Quinta Inns, Inc. v. Leech, 289 Ga. App. at 819 (2).

       Del Monte’s applicable insurance policies had combined policy limits of $37 million.

       The final settlement amounts were as follows: $1.75 million for Anderson’s claims; $2,448 million for Norton’s claims; $300,000 for Cantey’s claims; and $2,000 for Jared Norton’s claim; for a total of $4.5 million.

       See Division 3, infra.

       See Jackson v. Cavalry Portfolio Svcs., 314 Ga. App. 175, 176-177 (723 SE2d 475) (2012) (“Hearsay, opinions, and conclusions in affidavits are inadmissible on summary judgment.” Where it appears that “any portion of [an] affidavit was not made upon the affiant’s personal knowledge, or if it does not affirmatively appear that it was so made, that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.”) (punctuation andfootnote omitted); Holcomb v. Norfolk Southern R. Co., 295 Ga. App. 821, 822 (673 SE2d 268) (2009) (“Rules as to the admissibility of evidence are applicable in summary judgment proceedings, since the statute provides that all affidavits, depositions, etc. ‘shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’OCGA § 9-11-56 (e).”) (citation and punctuation omitted); Kaylor v. Atwell, 251 Ga. App. 270, 273 (2) (b) (553 SE2d 868) (2001) (“It is well-established that all hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.”) (punctuation and footnote omitted).

        Jackson v. Cavalry Portfolio Svcs., 314 Ga. App. at 176-177 (Because the creditor’s employee’s affidavit showed that the statement regarding the debtor’s outstanding balance was hearsay not subject to an exception and not made upon personal knowledge, the trial court erred in considering that statement in ruling on the creditor’s motion for summary judgment.); Kaylor v. Atwell, 251 Ga.App. at 273 (2) (b) (Because the affidavit of a witness showed that the witness’s statement that a supervisor had a conversation with a former employee’s prospective employer and gave the employee a negative review was hearsay and was an unsupported conclusion not made upon personal knowledge, the witness’s statement lacked probative value and could not rebut the supervisor’s sworn statement that he did not have such a conversation or give the former employee a negative review.).

       Anderson’s expert testified that, based solely on the merits of Anderson’s case, it would not he his opinion that $1.75 million was not a fair settlement and that he “would have no basis to say that Mr. Jones committed a legal malpractice in obtaining that settlement,” considering Anderson’s case alone.

       See Charles R. Adams, Ga. Law of Torts § 30:1 (2012-2013 ed.); John Bourdeau, 13 Ga. Jur. Personal Injury & Torts § 6:5 (updated June 2013).

       Lacking the capacity to sue, an unemancipated minor must he represented by a representative, such as a guardian ad litem or next friend. See OCGA § 9-11-17 (c) (“Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may bring or defend an action on behalf of the infant or incompetent person.”); Jackson v. Sanders, 199 Ga. 222, 226 (2) (33 SE2d 711) (1945) (The regular form of pleading is for a minor to sue by next friend, but for the next friend to sue as next friend for the minor is the same in substance.); In the Interest of W. L. H., 314 Ga. App. 185, 186-187 (723 SE2d 478) (2012) (A minor may only prosecute a civil action by way of a representative, such as a guardian ad litem or next friend. “The purpose of a guardian ad litem or next friend is to furnish a person sui juris to carry on the litigation for the minor’s benefit.” Thus, although a minor is a party, the guardian ad litem or next friend acts for the minor in the litigation.) (citation, punctuation and footnote omitted); Charles R. Adams, Ga. Law of Torts § 30:2 (2012-2013 ed.) (When an unemancipated minor brings an action, it must be by a next friend. The action is brought in the name of the minor by his or her next friend.).

       See OCGA § 9-11-20 (a) (“All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.”).

       See OCGA § 29-3-3 (a) (2013) (The term “gross settlement” means “the present value of all amounts paid or to be paid in settlement of the claim, including cash, medical expenses, expenses of litigation, attorney’s fees, and any amounts paid to purchase an annuity or other similar financial arrangement.”); former OCGA § 29-2-16 (k) (1997) (“The term‘net settlement’ shall mean the gross settlement less attorneys’ fees, expenses of litigation, and medical expenses for the ward which will be paid from the settlement proceeds.”).

       Former OCGA § 29-2-16 (1997) provided, in pertinent part, as follows:
      (a) A guardian is authorized to compromise all contested or doubtful claims for or against the ward he represents and may submit such matters to arbitration. A debtor may be released by the guardian if the release is in the interest of the ward. Furthermore, the guardian may appoint an attorney in fact in the matter, for whose acts the guardian shall be responsible.
      (b) If an order of approval is obtained from the judge of the probate court based upon the best interest of the ward, the guardian is authorized to compromise any contested or doubtful claim in favor of the ward he represents without receiving the consideration for such compromise as a lump sum. Without limiting the foregoing, such compromise may be in exchange for an arrangement which defers receipt of part or all of the consideration for the compromise until after the ward reaches majority and may involve a structured settlement or creation of a trust on such terms as the court approves.. . .
      (g) If legal action has been initiated through a natural guardian as next friend and a settlement has been proposed under subsection (f) of this Code section and the net settlement amount is $10,000.00 or greater, or where the trial judge otherwise requires a legally qualified guardian, the natural guardian shall apply to become the legally qualified guardian and shall file with the judge of the probate court an initial bond payable to the probate court in an amount set by the trial judge prior to compromising or terminating such claim or receiving any sums paid pursuant to a compromise or judgment.. ..
      (i) If legal action has been instituted and the guardian and the defendant in such action have agreed upon a settlement, the settlement must be approved by the judge of the court before whom the action is pending. The guardian shall not be permitted to dismiss the action and present the settlement to the probate court for approval without the approval of the trial judge before whom the action is pending.
      (j) Any settlement entered consistent with the provisions of this Code section shall be final and binding upon all parties, including the minor child.
      (k) The term “net settlement” shall mean the gross settlement less attorneys’ fees, expenses of litigation, and medical expenses for the ward which will be paid from the settlement proceeds. For purposes of determining whether a settlement must be submitted to a court for approval, the “gross settlement” shall include the present value of amounts received after majority, but for purposes of whether a guardian of the property is necessary, “gross settlement” and “net settlement” shall not include amounts to be received after maj ority. In determining the present value for purposes of this Code section, the present value of any payments to be received in the future by or on behalf of the minor shall be deemed to be the cost paid by or on behalf of the alleged tortfeasor to purchase any annuity or other financial arrangement; and if the alleged tortfeasor or his or her insurer undertakes to make such future payments without purchasing an annuity or other financial arrangement, the present value shall be deemed to be the value in current dollars as calculated in good faith by the alleged tortfeasor or his or her insurer.
      See Ga. L. 1995, p. 1171, § 2 (adding subsections (c) through (k), effective July 1, 1995); Ga. L. 2004, p. 161, § 1 (repealing former OCGA § 29-2-16).

        City of Atlanta v. City of College Park, 292 Ga. 741 (741 SE2d 147) (2013) (Under the fundamental rules of statutory construction, an appellate court is required “to construe [a] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.”) (citation and punctuation omitted); Judicial Council of Ga. v. Brown & Gallo, 288 Ga. 294,297 (702 SE2d 894) (2010) (“[T]he ‘golden rule’of statutory construction requires [courts] to follow the literal language of [a] statute unless it produces contradiction, absurdity, or such an inconvenience as to insure that the legislature meant something else.”) (citation and punctuation omitted); Carolina Tobacco Co. v. Baker, 295 Ga. App. 115, 119 (1) (670 SE2d 811) (2008) (When a statute is “plain and susceptible of but one natural and reasonable construction,” a court must simply follow the literal language of the statute, unless doing so would “lead[ ] to absurd or wholly impracticable consequences [.]”) (punctuation and footnote omitted).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A0793.
    HANNA v. FIRST CITIZENS BANK & TRUST COMPANY, INC.
    (744 SE2d 894)
   DOYLE, Presiding Judge.

First Citizens Bank & Trust Company, Inc. (“the Bank”), filed a complaint for failure to pay on a promissory note and personal guarantees against Southern Gentry Developments, LLC (“Southern Gentry”), Robert B. Donner, and David Hanna, alleging that the parties defaulted on a note for which Hanna had personally guaranteed $12,231,000. After the parties filed cross-motions for summary judgment, the trial court determined that Hanna had personally guaranteed the note and was liable for the debt. Hanna now appeals, arguing that the trial court erred by finding that he had personally guaranteed the 2007 note. For the reasons that follow, we affirm the judgment as to liability, but reverse the award of damages and remand for further proceedings consistent with this opinion.

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

September 29, 2006 Note and Guaranties

Viewed in this light, the record shows that on September 29, 2006, Southern Gentry executed a promissory note (“2006 Note”) in the amount of $12,231,000 with a maturity date of September 5, 2007, in favor of the Bank. The note stated that it was secured with a deed to secure debt, and Donner deposed that it was for the purchase and development of the Country Hills subdivision. After the 2006 Note was executed, the Bank disbursed the $12,231,000 to Donner, who used the proceeds to acquire land for the subdivision and develop and install infrastructure.

It is undisputed that Hanna and Donner executed unconditional personal guaranties of the 2006 Note, which personal guaranties stated that the guarantors promised to repay the 2006 Note “principal amount of . . . $12,231,000.00, together with any renewals, modifications, consolidations, and extensions thereof.” Paragraph 1 of Hanna’s 2006 Guaranty stated that

Guarantor hereby consents and agrees that Lender may at any time, and from time to time, without notice to ... or further consent from Guarantor... substitute for any collateral so held by it or by such person, firm, trustee or corporation, other collateral of like kind, or of any kind; modify the terms of the Note or any of the other Loan Documents; extend or renew the Note for any of the other Loan Documents, and to any persons or entities now or hereafter liable, whether directly or indirectly, jointly, severally, ... or take or fail to take any action of any type whatsoever with respect to the Premises or with respect to the Loan Documents which the Lender deems, in its sole discretion, is in its best interest under the circumstances then present. No such action which Lender shall take or fail to take in connection with the Note or any of the other Loan Documents or any security for the payment of the indebtedness of Borrower to Lender or for the performance of any obligations or undertakings of Borrower, and no course of dealings with Borrower or any other person, shall release the Guarantor’s obligations hereunder, affect this Guaranty in any way or afford the Guarantor any recourse against Lender. The provisions of this Guaranty shall extend and be applicable to all renewals, amendments, extensions, consolidations and modifications of the Note and the other Loan Documents, or any of them, and any and all references herein to the Note or to any of the other Loan Documents shall be deemed to include any such renewals, extensions, amendments, consolidations or modifications thereof. . . ,

Paragraph 3 of Hanna’s 2006 Guaranty stated that

Guarantor hereby waives and agrees not to assert or take advantage of (a) the defense of the statute of limitations ...; (b) any defense that may arise by reason of incapacity, lack of authority, death or disability...; (c) any defense based on the failure of Lender to give notice of the existence, creation, or incurring of any new or additional indebtedness or obligation or the failure of Lender to give notice of any action or non-action on the part of any other person whomsoever, in connection with any obligation hereby guaranteed; (d) any defense based upon election of remedies by Lender which destroys or otherwise impairs any subrogation rights of the Guarantor to proceed against Borrower for reimbursement, or both; (e) any defense based upon failure of Lender to commence an action against Borrower; (f) any duty on the part of Lender to disclose to the Guarantor any facts it may now or hereinafter know regarding Borrower; (g) acceptance or notice of acceptance of this Guaranty by Lender; (h) notice of presentment and demand for payment of any of the indebtedness or performance of any of the obligations hereby guaranteed except as otherwise required in this Guaranty; (i) protest and notice of dishonor or of default to the Guarantor or to any other party with respect to the indebtedness or performance of obligations hereby guaranteed; (j) except as otherwise provided herein, any and all other notices whatsoever to which the Guarantor might otherwise be entitled; (k) any defense based on lack of due diligence by Lender in collection, protection or realization upon any collatéral securing the indebtedness evidenced by the Note or any of the other Loan Documents;. . . (m) the provisions of [OCGA §] 10-7-24...; and (n) any other legal or equitable defenses whatsoever to which Guarantor might otherwise be entitled, to the extent permitted by law.

Paragraph 5 stated that

[t]his Guaranty shall be an absolute, irrevocable and continuing guaranty. Guarantor acknowledges that it is responsible for all sums and obligations represented by the Note and the Loan Documents, notwithstanding the Borrower’s liability therefor may be diminished or eliminated by operations of bankruptcy or creditor’s rights or otherwise.... It is the intention of Guarantor that Guarantor’s obligations hereunder shall not be discharged except by Borrower’s or Guarantor’s performance, or the performance by any other guarantor of the obligations of Borrower, whether given simultaneously herewith or at a later date, and then only to the extent of such performance.

Paragraph 13 of Hanna’s 2006 Guaranty stated that

[t]his Guaranty may not be changed orally, and no obligation of the Guarantor can be released or waived by Lender or any officer or agent of Lender except by a writing signed by a duly authorized officer of Lender. This Guaranty shall be irrevocable by Guarantor until all indebtedness guaranteed hereby has been completely repaid and all obligations and undertakings of Borrower under, by reason of, or pursuant to the Note and other Loan Documents have been completely performed.

Hanna’s guaranty also expressly limited his total liability to $12,231,000.

September 5, 2007 Document

On September 5, 2007, Southern Gentry and the Bank executed a document entitled “promissory note,” naming the same outstanding principal amount of $12,231,000 and a maturity date of September 10,2008. This document listed as security “Land Lot 68,17th District, Being 20.044 acres in Fulton County” as well as the personal guaranties of Donner and Hanna. The document also referenced the 2006 Note as the “prior note,” and it stated that all principal sums had been advanced to Southern Gentry, with account number 11921 and loan number 100950600. The parties do not dispute that this document is a renewal or extension of the 2006 Note.

November 21, 2007Document

On November 21, 2007, Southern Gentry executed a promissory note (“November 2007 Note”) in the amount of $12,541,000. This document had a maturity date of September 10, 2008, and it stated that it was secured with a Deed to Secure Debt issued the same date as the November 2007 Note for an interest in real property in Fulton County. On November 21,2007, Donner also executed a new personal guarantee at that time, and it is undisputed that Hanna did not.

September 10, 2008 Document

On September 10, 2008, Southern Gentry executed a promissory note for a principal amount of $10,471,000 with a maturity date of March 10, 2009. The September 2008 document referenced the November 2007 document and personal guaranties of Hanna and Donner as the “prior note,” and it listed account number 11921, loan number 100950600, and listed collateral as “Land Lot 68, 17th District, Being 20.044 acres in Fulton County.” The document noted that all conditions for future advances were listed “in the A&D Loan Agreement dated September 29, 2006.”

March 10, 2009 Document

On March 10, 2009, Southern Gentry executed a document entitled “promissory note,” which stated that “[t]his Promissory Note is separately secured by Deed to Secure Debt dated September 29, 2006[,] and Personal Guaranty(s) of Robert Donner and David Hanna, dated March 10, 2009.” It is undisputed that Hanna did not sign a personal guaranty on March 10,2009. The document listed collateral as “Land Lot 68,17th District, Being 20.044 acres off Glenridge Road in Fulton County,” listed the prior note as being dated September 10, 2008, listed account number 11921, listed loan number 100950600, and stated that conditions for future advances were stated in the A&D loan agreement dated September 19,2006. Hanna deposed that Donner asked him to execute another guaranty, but Hanna refused to do so. It is undisputed that the Bank did not release Hanna’s 2006 Guaranty in writing.

Thereafter, when Southern Gentry failed to repay its obligations, the Bank sued Southern Gentry, Donner, and Hanna on the March 10, 2009 Note, Donner’s 2009 and 2006 personal guaranties, and Hanna’s September 2006 personal guaranty. The Bank and Hanna filed cross-motions for summary judgment, and after a hearing on the motions, in a July 30, 2012 order, the trial court found that the 2007 Note was a renewal of the 2006 Note because the increased amount of debt was “merely a reflection of the capitalized interest at the time of renewal[, and n] either party [presented evidence] that any new payout was issued by [First Citizen] in conjunction with the November 2007 note.” The trial court further determined that because Hanna had not established that his 2006 Guaranty had been discharged in writing by the Bank or by payment of the loan, the Bank had established that it was entitled to summary judgment against Hanna.

1. Hanna contends that the Bank failed to establish a prima facie case that he was liable to the Bank for the debt owed under the November 2007 document and subsequent renewals because that document was not guaranteed by his September 2006 Guaranty. Hanna contends that the November 2007 document was a new loan and not a renewal, modification, or extension of the September 2006 Note.

The record establishes without question that Hanna provided a personal guaranty for the September 2006 Note. Although the November 2007 document did not reference the September 2006 Note or September 2007 renewal as the prior notes, the document also did not purport to release Hanna from his liability under the September 2006 Guaranty or to discharge the $12,231,000 debt owed under the September 2006 Note. It is undisputed that the debt on the September 2006 Note has not been repaid. The Bank presented prima facie evidence of the 2006 Note, the 2009 renewal, and Hanna’s 2006 Guaranty, which Hanna has failed to rebut. Accordingly, the trial court did not err by granting summary judgment in favor of the Bank because it established that Hanna was liable under the 2006 Guaranty.

2. Hanna also contends that the trial court erred by granting summary judgment to the Bank and by denying summary judgment to him because the Bank increased his risk of harm by issuing the 2009 document, which he contended was a novation.

As an initial matter, Hanna’s own guaranty capped his monetary risk at $12,231,000, and so the 2009 document did not increase his bottom line monetary risk. And even assuming that an additional draw of $310,000 increased Hanna’s risk because it exposed Southern Gentry to a greater chance of defaulting on the loan, his argument still fails. In paragraph 3 of the Guaranty, Hanna agreed to waive “any other legal or equitable defenses whatsoever to which Guarantor might otherwise be entitled, to the extent permitted by law.”

Although a surety can be discharged by an increase of risk or a novation, OCGA §§ 10-7-21 and 10-7-22, a party may consent in advance to the conduct of future transactions and will not be heard to claim his own discharge upon the occurrence of that conduct. Given the language of the guaranty in this case, no issue of fact existed as to whether [Hanna] was discharged by any increased risk or any purported novation because he agreed in advance to the risk that the [B]ank would take such actions.

“Such waivers are enforceable.” “[I]n this case, the construction of the guaranty was a matter of law for the court [, and] the language employed by the parties in the guaranty is plain, unambiguous, and capable of only one reasonable interpretation.” OCGA § 10-7-22 clearly is a “legal defense,” which the plain language of Hanna’s 2006 Guaranty served to waive. Hanna, an educated, successful businessperson was free to so contract.

3. To the extent that Hanna contends that the trial court improperly weighed evidence in derogation of the summary judgment standard, his argument is a misreading of the trial court’s order, which found undisputed evidence that Hanna’s 2006 Guaranty had not been discharged, Southern Gentry had not fully repaid the $12,231,000 debt, and any arguments presented by Hanna were not sufficient to meet the summary judgment standard to create a material question of fact.

4. Finally, Hanna contends that the trial court erred by granting summary judgment in favor of the Bank because the Bank had provided insufficient proof of damages. We agree.

In support of damages, the Bank submitted the affidavit of its senior vice president, Richard Spink, the custodian of the Bank’s business records related to claims and loans at issue, who averred that he was personally familiar with the Bank’s routine practice for maintaining those business records and calculating amounts owed; that the loan documents and records were made and kept in the ordinary course of business; and that it was the Bank’s routine practice to record payments and changes in amounts owed at or near the time the relevant events occurred. His affidavit was accompanied by a “payment history,” which appears to be a printout of a screen-capture listing the current balance, accrued interest, late charges, loan fees, and last payment. He testified that the printouts are bank records reflecting current amounts owed. Hanna contends that this is insufficient to support the trial court’s finding of damages because the business records underlying the screen-capture summary do not appear in the record.

As this Court previously explained in Capital City Developers, LLC v. Bank of North Ga.,

[a]lthough a summary prepared in support of a demand for payment may not qualify as a business record under OCGA § 24-3-14, summarized statements of what records show are admissible if the records themselves are accessible to the court and the parties. Here, the Bank’s summaries were accompanied by some business records, but a search of the record reveals that crucial underlying business records related to fees and interest were not available to this Court or to Appellants.

Decided June 27, 2013

Reconsideration denied July 17, 2013

Schreeder, Wheeler & Flint, John A. Christy, Andrew J. Lavoie, for appellant.

Busch, Slipakoff & Schuh, Bryan E. Busch, Shane P. Stogner, Tawana B. Johnson, Morris, Manning & Martin, Donald S. Nation, Michael P. Bain, for appellee.

Accordingly, we find that the trial court abused its discretion by considering these summaries in its determination of the amounts awarded. Therefore, we affirm judgment as to liability, but reverse the award of damages and remand for further proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

McFadden and Boggs, JJ., concur.

       Defendants Southern Gentry and Donner are not parties to this appeal.

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

       The Note was originally executed in favor of Georgian Bank, which later failed, and the Federal Deposit Insurance Corporation (“the FDIC”) took control of Georgian after the failure. Thereafter, First Citizen obtained the notes and personal guaranties via an asset purchase and assumption agreement with the FDIC.

       Hanna’s guaranty was executed on September 25, 2006.

       (Emphasis supplied.)

       (Emphasis supplied.)

        Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 795 (1) (b) (709 SE2d 336) (2011) (“A plaintiff seeking to enforce a promissory note establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.”) (punctuation omitted).

       Compare with Upshaw v. First State Bank, 244 Ga. 433, 434 (260 SE2d 483) (1979) (The new “note represented a new indebtedness, which was a novation in the amount owed by the principal. This novation discharges the sureties.”).

       (Citations and punctuation omitted.) Fielbon Dev. Co. v. Colony Bank of Houston County, 290 Ga. App. 847, 854 (2) (b) (660 SE2d 801) (2008).

        Hampton Island, LLC v. Asset Holding Co. 5, LLC, 320 Ga. App. 880 (3) (c) (740 SE2d 859) (2013), citing Core LaVista, LLC, 308 Ga. App. at 795(1) (b), 796-797 (1) (d) (ii); FielbonDev. Co., 290 Ga. App. at 854 (2) (b).

       (Citations omitted.) Brookside Communities, LLC v. Lake Dow North Corp., 268 Ga. App. 785, 786 (1) (603 SE2d 31) (2004).

       316 Ga. App. 624 (730 SE2d 99) (2012).

       (Punctuation and footnote omitted.) Id. at 627 (1).


author: Miller, Judge.

text:
    A13A1413.
    ASHMORE v. THE STATE.
    (746 SE2d 927)
   Miller, Judge.

Following a jury trial, Rodriguez Lamont Ashmore was convicted of aggravated sexual battery (OCGA § 16-6-22.2), three counts of child molestation (OCGA § 16-6-4 (a)), attempted child molestation (OCGA §§ 16-4-1 and 16-6-4 (a)), attempted aggravated child molestation (OCGA §§ 16-4-1 and 16-6-4 (c)), and statutory rape (OCGA § 16-6-3). Ashmore filed a motion for new trial and a motion in arrest of judgment, which the trial court denied. Ashmore appeals, contending that the trial court (1) applied an incorrect standard in ruling on the admissibility of a statement he made to police officers and (2) erred in denying his motion in arrest of judgment with regard to the attempted aggravated child molestation charge. We discern no error and affirm.

Viewed in the light most favorable to the jury’s verdict, the trial evidence shows that Ashmore was the boyfriend of the victim’s Aunt Hometta, and the victim considered him to be her uncle. In June of 2010, the then 14-year-old victim spent the night in Hometta and Ashmore’s home in Barrow County while she was in Georgia visiting her father and his family. This was the first time the victim had spent the night in the home. That night, Hometta, who was an on-call nurse, went to work around 11:00 p.m.

Ashmore and the victim dropped Hometta off at work, and on the return ride home, Ashmore started asking the victim adult-like questions about her boyfriend and whether they were having sex. Upon returning to the house, the victim went upstairs to Hometta and Ashmore’s bedroom, which was across the hall from the room where Hometta’s three children and Ashmore’s daughter slept. The victim sat on the bed with Ashmore and they watched the news. At some point, the victim went into the connecting bathroom to wrap her hair. Ashmore followed the victim into the bathroom, turned off the light, put her on the counter near the sink and tried to grope her.

Ashmore went downstairs, and the victim returned to the bedroom. When Ashmore returned, the victim was lying down on the bed under the covers with a pillow covering her. Ashmore reached his hand underneath the pillow and put his hand inside the victim’s shorts and underwear. Ashmore then fondled the victim’s clitoris and put his finger inside her private area without her permission. Ash-more also asked the victim if he could play with or suck on her breasts.

The victim went downstairs to ask her Aunt Raven, who was staying at the home that night, if she could upload some music from the computer to her MP3 player, but she was afraid to tell Raven what had happened. After the victim got off the computer she returned to Hometta’s room, and laid down on the bed on her stomach while listening to her MP3 player.

Sometime thereafter, Ashmore started rubbing the back of the victim’s thigh close to her buttocks. Ashmore then rolled the victim over and moved her until her hips were hanging off the bed, removed her shorts, began to penetrate her vagina with his penis, and ejaculated on her stomach. The victim tried not to make too much noise because Ashmore had told her that someone would kill her if she said anything. Afterward, Ashmore asked the victim if she was thinking about her boyfriend while he was penetrating her. The victim went to the bathroom to clean up, and when she returned to the bedroom, she and Ashmore went to sleep.

At approximately 5:00 to 6:00 a.m. the next morning, Ashmore woke up the victim, put her in the same position she was in the first time, and asked the victim if she “sucked — which means oral sex.” When the victim did not respond to his question, Ashmore again removed her shorts, had sex with her and ejaculated on her stomach. The victim never agreed to have sex with Ashmore nor gave him any indication that she was willing to do so.

Later that day, the victim told her stepmother that Ashmore had raped her. The victim’s stepmother called the victim’s dad, who came home from work and helped the victim bag up the clothes she had slept in the previous night. The victim then went to the police station with her dad and stepmother.

That night, the victim was examined by a sexual assault nurse, who took pictures and hair samples, collected evidence with a sexual assault kit, including vaginal and abdominal swabs, and gave the victim medicine. The exam revealed that the victim had bruising on her cervix that was consistent with vaginal penetration. Subsequent testing showed that the DNA found on the vaginal and abdominal swabs and other evidence contained in the sexual assault kit matched Ashmore’s DNA.

At trial, the State also presented similar transaction evidence showing that in 2007, Ashmore had asked a 15-year-old girl, who often went to Ashmore and Hometta’s house, to “come have sex with me” and “let me show you my dick.” Ashmore later asked the 15-year-old girl to “let me show you my bedroom and my dick” while he was holding his private area. These incidents were subsequently reported to the police.

1. Ashmore contends that the trial court applied an incorrect standard in ruling on the admissibility of a statement he made to police officers. We do not agree.

“After a trial court makes the determination that a defendant’s statement is freely and voluntarily given in compliance with Jackson v. Denno,[ ] the trial court may properly allow the statement into evidence.” (Citation omitted.) Wright v. State, 285 Ga. 428, 431-432 (2) (677 SE2d 82) (2009).

The trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances. On appeal, we accept the trial court’s findings on disputed facts and credibility of witnesses unless clearly erroneous, but independently apply the legal principles to the facts.

(Citation omitted.) Thomas v. State, 292 Ga. 429, 433 (3) (738 SE2d 571) (2013).

Here, the record of Ashmore’s Jackson v. Denno hearing shows that he gave a statement to police after the interviewing officer advised him of his Miranda rights, and he voluntarily waived his rights in writing. Although Ashmore was in custody in the Barrow County jail on an unrelated charge at the time of the interview, he did not invoke his right to counsel, he was not threatened, and the interviewing officer did not promise him anything in exchange for his statement. Considering the totality of the circumstances, the trial court did not clearly err in admitting Ashmore’s statement. See Thomas, supra, 292 Ga. at 432-433 (3).

2. Ashmore contends that the trial court erred in denying his motion in arrest of judgment with regard to the attempted aggravated child molestation charge. We disagree.

A motion in arrest of judgment is an appropriate remedy, [only] when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law, and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict.

(Citation and punctuation omitted.) Jones v. State, 240 Ga. App. 484, 485 (2) (523 SE2d 73) (1999). “[An] indictment is not void if it is sufficient to place the defendant on notice of the charges against [him] and enable [him] to prepare an intelligent defense.” (Citation omitted.) Robles v. State, 277 Ga. 415, 421 (10) (589 SE2d 566) (2003). “In attacking an indictment after the verdict, every presumption and inference is in favor of the verdict. By failing to file a demurrer before trial, [Ashmore] waived his right to a perfect indictment.” (Citation and punctuation omitted.) Bowman v. State, 227 Ga. App. 598, 599 (1) (490 SE2d 163) (1997). Moreover, where an indictment alleges an offense, alleges that the act was unlawfully committed and contrary to the laws of the State, and employs language from which it must necessarily be inferred that criminal intent existed, the indictment is not void for failing to expressly allege the requisite criminal intent. Id. at 600-601 (1).

Decided July 19, 2013.

Steven A. Miller, for appellant.

Rosemary M. Greene, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Here, the indictment charged Ashmore with attempted aggravated child molestation based on his act of asking the victim “if she sucked.” The indictment referred to OCGA §§ 16-4-1 and 16-6-4 (c), and specifically alleged that the victim was under the age of sixteen, the act was unlawful and contrary to the laws of this State, Ashmore had the intent to commit the crime of aggravated child molestation and the act constituted a substantial step toward the commission of that crime. In the context of aggravated child molestation, the words “if she sucked” would alert a defendant that he was being charged with attempting to commit an immoral or indecent act involving an act of oral sodomy. See OCGA § 16-6-2 (a) (1). The indictment was sufficient to place Ashmore on notice of the charges against him and enable him to prepare an intelligent defense. See Robles, supra, 277 Ga. at 421 (10); Clark v. State, 302 Ga. App. 156, 157 (1) (b) (690 SE2d 466) (2010). Accordingly, the trial court did not err in denying Ashmore’s motion in arrest of judgment.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

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

         Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       Contrary to Ashmore’s contention, the United States Supreme Court’s decision in Howes v. Fields, _ U. S. _ (132 SCt 1181, 182 LE2d 17) (2012), does not require a different result because that case involved the questioning of an incarcerated defendant who was not given his Miranda warnings.

       “Aperson commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1.

       “Aperson commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c).


author: BARNES, Presiding Judge.

text:
    A13A0108.
    DILLARD v. THE STATE.
    (744 SE2d 863)
   BARNES, Presiding Judge.

A jury convicted Leroy Dillard of burglary and criminal attempt to commit burglary, and the trial court sentenced him to 20 years in confinement followed by 10 years on probation. He appeals, contending that the evidence was insufficient; that his trial counsel was ineffective for failing to request a charge on criminal trespass; and that the trial court erred in excluding his expert witness, who would have testified about the difference between passing out and blacking out from drinking. For the reasons that follow, we affirm.

When evaluating the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

(Citations omitted.) Benbow v. State, 288 Ga. 192, 192-193 (702 SE2d 180) (2010).

So viewed, the first victim testified that she woke from a loud noise and found Dillard standing in her living room. He was standing in front of her 42-inch plasma TV, which was on the floor and had been disconnected from the DVD player, satellite dish, and PlayStation. She yelled at him and woke her adult son. Dillard ran toward the back bedrooms, and the son began grappling with him. The son testified that Dillard punched him in the face during the struggle, but he ultimately forced Dillard out of the house and saw him jog away.

The second victim, who lived nearby, heard loud banging outside his house and turned on his floodlights, which revealed Dillard at the back door. Dillard ran away, and the victim discovered that the screen in his garage window had been removed and his gate had been opened.

At trial, Dillard testified that he had not drunk alcohol for ten years, but fell off the wagon when he ran into some friends at a mall and went with them to their brother’s house for a birthday cookout. He and the two men stayed overnight in the brother’s basement recreation room, which had no bathroom. The brother advised the men to go outside if they had to relieve themselves. Dillard testified that after he went to sleep, his next recollection was bumping into a television and knocking it over. He tried to put it back but it was too heavy to lift, then heard someone screaming at him to get out and realized he was not at the brother’s house. He could not find his way out and did not know why someone was hitting him. Someone pushed him out the door, and he still did not know where he was and was trying to find the brother’s house when he was arrested. He did not recall trying to get into the second house.

1. Dillard argues that the circumstantial evidence of his intent when he entered the first victim’s house reasonably supported the hypothesis that he wandered into the wrong place while intoxicated. While witnesses testified that the wires to the television had been “disconnected” from several devices, no evidence excluded the possibility that the wires had been pulled out after Dillard knocked over the television, and that therefore the evidence against him on the burglary and attempted burglary charges was insufficient.

Burglary is a specific intent crime — the State must prove that the defendant intended to commit a felony after making an unauthorized entry. Bogan v. State, 177 Ga. App. 614, 617 (2) (340 SE2d 256) (1986). “Generally speaking, in a burglary trial a jury must, of necessity, find intent to commit a felony on the basis of circumstantial evidence.” Jackson v. State, 270 Ga. 494, 496 (1) (512 SE2d 241) (1999). To sustain a conviction based on circumstantial evidence, the facts must be consistent with guilt and exclude every other reasonable hypothesis but guilt, OCGA § 24-14-6.

While voluntary intoxication does not excuse a criminal act, OCGA § 16-3-4 (c), Dillard argues correctly that evidence of intoxication can disprove the hypothesis of specific intent based on circumstantial evidence. See Ely v. State, 159 Ga. App. 693 (285 SE2d 66) (1981) (evidence sufficient for jury to find defendant capable of forming specific intent to commit crimes despite conflicting evidence of intoxication). Whether the evidence disproves the hypothesis of specific intent or not, however, is a jury question, Connor v. State, 268 Ga. 656, 657 (1) (492 SE2d 669) (1997), and this jury decided that in this case evidence of intoxication did not disprove intent. In addition to testimony about the television wires having been disconnected from various devices, one witness testified that the television was sitting upright on the floor, not face-down, despite Dillard’s testimony that he had knocked it off its stand. This evidence was sufficient to enable a rational factfinder to find Dillard guilty of burglary.

As to the attempted burglary, the second victim testified that after he woke and saw Dillard outside, he found the screen to an open window on the hood of his car and a piece of carpet he had left in the window sill for his cat to sit on was in his yard. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. The jury could have found that Dillard removed the screen in an attempt to gain entrance into the house, and thus the evidence was sufficient to sustain the attempted burglary conviction.

2. Dillard contends that his trial counsel was ineffective for failing to request a charge on criminal trespass as a lesser included offense of burglary. Ineffective assistance is a “deficient performance” by counsel resulting in “actual prejudice.” Head v. Hill, 277 Ga. 255, 266 (VI) (587 SE2d 613) (2003). Both, offenses require the State to prove unauthorized entry, but burglary also requires proof that entry was made “with the intent to commit a felony or theft” and criminal trespass requires proof of entry “for an unlawful purpose.” OCGA §§ 16-7-1 (b), 16-7-21 (b) (1).

Criminal trespass may be a lesser included offense of burglary, but it is not necessarily one. Absent evidence that a defendant made an unauthorized entry for an unlawful purpose other than to commit a theft or felony, a charge on criminal trespass is unwarranted. Moore v. State, 280 Ga. App. 894, 898 (6) (c) (635 SE2d 253) (2006) (charge not required where evidence showed defendant was present either for a lawful purpose or with intent to commit theft); Sanders v. State, 293 Ga. App. 534, 536 (2) (a) (667 SE2d 396) (2008) (charge not required where evidence showed defendant was present either to perform electrical repairs or with intent to commit theft or felony).

While this court has stated without reservation that criminal trespass is a lesser included offense of burglary, the facts in those cases would allow a jury to infer that the defendant made an unauthorized entry for some unlawful purpose other than a felony or theft. For example, in Waldrop v. State, 300 Ga. App. 281, 284-285 (3) (684 SE2d 417) (2009), we quoted Hiley v. State, 245 Ga.App. 900 (539 SE2d 530) (2000), for the proposition that “the trial court must give a requested charge on criminal trespass as a lesser included offense of burglary where the testimony of the accused if believed, would negate an element of the crime of burglary (entry with intent to commit a felony or theft).” In both Waldrop and Hiley, however, we further held that the jury could have inferred from the evidence that the defendant entered the house for an unlawful purpose, such as loitering, and that therefore the trial court erred in declining to give a requested charge on trespass. Waldrop, 300 Ga. App. at 285 (3); Hiley, 245 Ga. App. at 901.

Under the facts of this case, however, a charge on criminal trespass would not have been warranted. While Dillard admitted that his entry into the first residence was unauthorized, under his version of events he did not enter for an unlawful purpose, but simply wandered into the wrong house thinking he was staying there. “ [T]he evidence showed that appellant harbored either the unlawful purpose of committing theft or the lawful purpose of [going back to sleep in a friend’s house]. With only these two possibilities raised by the evidence,” a charge on criminal trespass would not have been warranted. Darden v. State, 165 Ga. App. 739, 741 (3) (302 SE2d 425) (1983), disapproved on other grounds in Carter v. State, 238 Ga. App. 632, 634 (2) (519 SE2d 717) (1999). “Where the evidence shows either the commission of the offense charged in the indictment, or the commission of no offense at all, the trial court is not required to charge the jury on a lesser included offense.” (Citation and punctuation omitted.) Anthony v. State, 317 Ga. App. 807, 812 (3) (732 SE2d 845) (2012).

Decided June 19, 2013

Reconsideration denied July 22, 2013.

J. Scott Key, Margaret E. Flynt, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

As the trial court would not have been authorized to charge the jury on criminal trespass as a lesser included offense of burglary, it logically follows that Dillard cannot show that his trial counsel’s failure to request such a charge was ineffective. Boatright v. State, 289 Ga. 597, 602 (8) (713 SE2d 829) (2011).

3. Finally, Dillard contends that the trial court erred in sustaining the State’s objection to testimony from Dillard’s proffered expert witness on relevancy grounds. Dillard sought to call a licensed professional counselor focused on addiction to testify about alcoholic blackouts, “not for the purposes of showing intent or lack of intent, but for the purpose that it would help the jury understand that a person in a blackout condition still maintains their motor functions . . . [and] to educate the jury.”

“The admissibility of expert testimony is a matter within the trial court’s sound discretion. We will not reverse the trial court’s ruling on such evidence absent an abuse of that discretion.” (Citation and punctuation omitted.) Lott v. State, 281 Ga. App. 373, 375 (3) (636 SE2d 102) (2006).

In this case, evidence that Dillard might have been walking around in an alcoholic blackout could only have been relevant to whether he had formed the specific intent to commit a felony or theft when he entered or attempted to enter the victims’ houses. His trial counsel specifically stated that the expert was not being offered to address the issue of intent, however, and therefore the expert’s testimony was not relevant to Dillard’s defense. Bryant v. State, 271 Ga. 99, 101 (3) (515 SE2d 836) (1999). Consequently, the trial court did not err in sustaining the State’s objection to the expert testimony.

Judgment affirmed.

Miller and Ray, JJ., concur.


author: ANDREWS, Presiding Judge.

text:
    A13A0560.
    FERRELL v. YOUNG.
    (746 SE2d 167)
   ANDREWS, Presiding Judge.

Brandon Young filed suit in the Fulton County Superior Court against the Georgia World Congress Center Authority (GWCCA); William Shannon, Chief of the GWCCApolice department; and officer Twyone Ferrell of the GWCCApolice department alleging that, after Ferrell arrested him at the GWCCA for possession of a stolen cell phone, Ferrell fondled his penis and forced him to commit non-consensual sex acts. Young alleged that Ferrell acted within the scope of his employment as a GWCCApolice officer, and sued Ferrell in his individual capacity asserting causes of action under state law and pursuant to 42 USC § 1983 for violation of federal rights.

Ferrell appeals from the Superior Court’s order granting a default judgment against him for failing to file a timely answer, and denying his motion to open the default. As to Young’s claim brought against Ferrell, individually, pursuant to 42 USC § 1983, we find that the Court correctly concluded Ferrell was in default for failing to timely answer. But we vacate the default judgment and the order denying Ferrell’s motion to open default, and remand the case for reconsideration of the motion. As to Young’s claim brought against Ferrell, individually, under state law, we vacate the grant of the default judgment and remand with direction to dismiss the claim — as a police officer employed by the GWCCA, Ferrell was immune from suit on this claim under OCGA § 50-21-25 (a) and (b), and therefore the Court had no subject matter jurisdiction.

1. Young’s complaint included a cause of action against Ferrell in his individual capacity, brought pursuant to 42 USC § 1983, seeking to impose personal liability for damages for violation of federal rights based on alleged actions Ferrell took in his official capacity as a GWCCA police officer. Hafer v. Melo, 502 U. S. 21, 25 (112 SCt 358, 116 LE2d 301) (1991). “Section 1983 provides judicial remedies to a claimant who can prove that a person acting under color of state law committed an act that deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States.” Romano v. Ga. Dept. of Corrections, 303 Ga. App. 347, 351 (693 SE2d 521) (2010) (citation and punctuation omitted). As to this cause of action, the Superior Court correctly concluded that Ferrell was in default because his answer was untimely.

Young filed his complaint in the Superior Court in June 2009, and Ferrell was served on July 23, 2009. After the GWCCA and Shannon were served and filed answers, the case was timely removed to the United States District Court by a notice of removal filed on August 4, 2009. 28 USC § 1446. On August 19, 2009, Ferrell, who did not file an answer before removal, filed an untimely motion to dismiss for failure to state a claim in the District Court. Fed. R. Civ. P. 81 (c) (2). Without ruling on the motion, the District Court sua sponte remanded the case to the Superior Court on May 17, 2011, for lack of subject matter jurisdiction. 28 USC § 1447 (c). On May 19, 2011, the GWCCA and Shannon moved in the District Court for reconsideration of the remand, and on June 21, 2011, the District Court denied the motion for reconsideration. On June 22, 2011, the GWCCA and Shannon appealed the remand to the Eleventh Circuit Court of Appeals, and on February 21, 2012, the Eleventh Circuit dismissed the appeal. On March 13, 2012, the GWCCA and Shannon moved in the Eleventh Circuit for reconsideration of the dismissal, and on June 21, 2012, the Eleventh Circuit denied the motion for reconsideration. On June 29, 2012, Ferrell filed an answer to Young’s complaint in the Superior Court. On July 3, 2012, Young moved in the Superior Court for entry of default judgment against Ferrell pursuant to OCGA § 9-11-55 for failure to timely file an answer. On July 3, 2012, Ferrell filed a motion in the Superior Court asking the Court to open default, if any, but also contending that his answer was timely and that he was not in default. The Superior Court entered an order on August 20, 2012, (1) granting a default judgment against Ferrell pursuant to OCGA § 9-ll-55(a) on the basis that he failed to timely file an answer and was in default for more than 15 days, and (2) denying Ferrell’s motion to open default pursuant to OCGA § 9-11-55 (b).

(a) Ferrell was served with the complaint on July 23,2009, giving him 30 days under OCGA § 9-11-12 (a) to file an answer. When the notice of removal to the District Court was filed on August 4, 2009, the Superior Court lost jurisdiction until the case was remanded by the District Court. 28 USC § 1446; Cotton v. Fed. Land Bank of Columbia, 246 Ga. 188, 189 (269 SE2d 422) (1980). When the case was removed, only a portion of the 30-day period for filing an answer in the Superior Court had expired. Until the Superior Court resumed jurisdiction pursuant to the remand from the District Court, no responsive pleadings could be filed in the Superior Court, and the running of the 30-day period for filing an answer in the Superior Court was suspended. Allen v. Hatchett, 91 Ga. App. 571, 576-577 (86 SE2d 662) (1955). When the District Court remanded the case to the Superior Court on May 17, 2011, “the case stood as it did at the time of removal,” and the remaining portion of the 30-day period for filing an answer in the Superior Court commenced to run. Id. at 577. The trial court correctly found that Ferrell’s answer was untimely and that he was in default under OCGA § 9-11-55 (a) because he filed the answer in the Superior Court on June 29, 2012, over a year after the case was remanded and long after the recommenced 30-day answer period had expired.

(b) Ferrell contends that his motion to dismiss for failure to state a claim, filed in the District Court after removal but never ruled on, prevented the Superior Court from entering the default judgment. Fed. R. Civ. P. 81 (c) (2). “[A] timely answer filed in district court following timely removal of the action is sufficient to prevent a default in a state court if the case is subsequently remanded from district court.” Teamsters Local 515 v. Roadbuilders, Inc. of Tennessee, 249 Ga. 418, 421 (291 SE2d 698) (1982), overruled in part on other grounds, Shields v. Gish, 280 Ga. 556, 557 (629 SE2d 244) (2006). Under Fed. R. Civ. P. 81 (c), where an action has been removed from state court to federal court, and the defendant has not filed an answer prior to removal, the defendant “must answer or present other defenses or objections under these rules within the longest of these periods”: (1) within 21 days after receiving, by service or otherwise, a copy of the initial pleading stating the claim for relief; (2) within 21 days after being served with summons on such initial pleading on file at the time of service; or (3) within 7 days after the notice of removal is filed. After the case was removed, Ferrell failed to file any pleading in District Court within the time required by Fed. R. Civ. P. 81 (c). Even assuming that an undisposed motion to dismiss for failure to state a claim (see Fed. R. Civ. P. 12 (a) (4) (A)), which was timely filed under Fed. R. Civ. P. 81 (c) after removal, could prevent default in state court if the case is subsequently remanded, we find that Ferrell’s untimely motion was not sufficient to prevent default.

(c) Ferrell contends that the remaining portion of the 30-day period for filing an answer in Superior Court commenced to run, not when the District Court remanded the case to the Superior Court on May 17, 2011, but after the conclusion of the post-remand motion asking the District Court to reconsider the remand, and the appeal asking the Eleventh Circuit to reverse the remand. Accordingly, Ferrell contends that, when the Eleventh Circuit denied the motion to reconsider its dismissal of the appeal on June 21, 2012, the remaining portion of the 30-day period for filing an answer in Superior Court commenced to run, and he timely filed the answer on June 29, 2012.

Under 28 USC § 1447 (d), entitled “Procedure after removal generally,” “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” Section 1447 (d), which applies only to remand orders under § 1447 (c) for lack of subject matter jurisdiction, “not only forecloses appellate review, but also bars reconsideration by the district court of its own remand order.” Bender v. Mazda Motor Corp., 657 F3d 1200, 1203 (11th Cir. 2011) (citation and punctuation omitted). “A remand to state court divests a district court of jurisdiction such that it may not take any further action on the case,” even if the remand order was erroneous, and vests jurisdiction in the state court to “thereupon proceed with such case.” Id. at 1203-1204 (citation and punctuation omitted); 28 USC § 1447 (c). Because neither the District Court nor the Eleventh Circuit had jurisdiction to review the May 17, 2011 remand order vesting jurisdiction in the Superior Court, the remaining portion of the 30-day period for filing an answer in Superior Court commenced to run from the date of remand. Penland v. Corlew, 248 Ga. App. 564, 569 (547 SE2d 306) (2001). Ferrell’s answer filed on June 29, 2012 was untimely.

(d) Ferrell contends that the Superior Court erred by denying his motion to open the default on Young’s claim against him, individually, pursuant to 42 USC § 1983. By failing to file an answer before expiration of the 30-day period after service, Ferrell became automatically in default, and thereafter failed to open default as a matter of right by filing defenses within 15 days of the default with payment of costs. OCGA § 9-11-55 (a). Accordingly, Young became entitled to a default judgment, subject to determination of damages, and subject to the Superior Court’s consideration of Ferrell’s motion to open default filed under OCGA § 9-11-55 (b) with payment of costs. Upon payment of costs, a prejudgment default

may be opened [pursuant to OCGA § 9-11-55 (b)] on one of three grounds ¿/four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. This court has previously held that the “showing” required by this Code section to be made “under oath” includes the showing of a “meritorious defense.” Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.

McCombs v. Synthes (U.S.A.), 250 Ga. App. 543, 546-547 (553 SE2d 17) (2001) (citation and punctuation omitted; emphasis in original), rev’d on other grounds, 277 Ga. 252 (587 SE2d 594) (2003).

In denying Ferrell’s motion to open default, the Superior Court ruled that Ferrell failed to comply with two of the four conditions necessary for the Court to exercise its discretion to open default. The Court ruled that Ferrell failed to make a showing of a meritorious defense under oath, and failed to announce ready to proceed with trial. We find that both of these conditions were satisfied. Ferrell’s affidavit, made under oath in support of the motion, denied all of Young’s allegations, set forth defenses, and incorporated the answer he filed setting forth his defenses. Rapid Taxi Co. v. Broughton, 244 Ga. App. 427, 428-429 (535 SE2d 780) (2000). In support of the motion, Ferrell also demanded a jury trial and specifically stated in his affidavit that he was ready to proceed with the trial.

Ferrell’s motion, supported by his affidavit and his attorney’s affidavit, sought to open default on the grounds of excusable neglect and proper case. After erroneously finding that it lacked discretion to open default, the Court’s order nevertheless considered and rejected “proper case” as a ground for opening default, but it did not address the ground of excusable neglect. The Court’s order shows on its face that the Court erroneously found it lacked discretion to consider the asserted grounds for opening default. “[A] statute which confers discretion upon a judge to decide a particular question also imposes a correlative duty to exercise that discretion when the occasion arises.” Rapid Taxi Co. at 429 (citation and punctuation omitted). Although the Court apparently exercised discretion with respect to the “proper case” ground, it is unclear under these circumstances the extent to which the Court erroneously failed to exercise discretion under OCGA § 9-11-55 (b) to fully consider the motion to open default on all asserted grounds. Accordingly, as to Young’s claim against Ferrell, individually, pursuant to 42 USC § 1983, we vacate the Court’s grant of the default judgment and the denial of Ferrell’s motion to open default, and remand the case for the Court to exercise its discretion and consider the merits of all asserted grounds in the motion. Id.

2. Young also sued Ferrell, individually, asserting claims under state law based on allegations that Ferrell sexually assaulted him while acting as a GWCCA police officer. The GWCCA is “a body corporate and politic, which shall be an instrumentality of the State of Georgia and a public corporation.” OCGA § 10-9-2. The officers of the GWCCA Police Department,

[f]or the purposes of exercising the powers and responsibilities of such officers as peace officers under paragraph (8) of Code Section 35-8-2, including their duties and responsibilities with respect to matters occurring within the limits of the facilities of the authority or requests by another law enforcement agency to provide aid and assistance ... shall have the same authority, powers, privileges, and immunities regarding enforcement of laws as law enforcement officers employed by the state.

OCGA § 10-9-4.1 (b).

As a state instrumentality, the GWCCA is entitled to assert sovereign immunity as a defense in this case to the extent such immunity is retained pursuant to provisions of the Georgia Tort Claims Act (GTCA) (OCGA § 50-21-20 et seq.). Kyle v. Ga. Lottery Corp., 290 Ga. 87, 88 (718 SE2d 801) (2011); OCGA § 10-9-2. Likewise, as an officer employed by the GWCCA, Ferrell is immune to the extent provided in the GTCA. The GTCA broadly exempts state officers and employees from liability for any torts committed while acting within the scope of their official duties or employment, including for intentional wrongful conduct or actions taken with malice and intent to injure. Davis v. Standifer, 275 Ga. App. 769, 771 (621 SE2d 852) (2005); Romano, 303 Ga. App. at 350; Ridley v. Johns, 274 Ga. 241 (552 SE2d 853) (2001); OCGA § 50-21-25 (a). Where an action is brought against the state under the GTCA, the action “must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually.” OCGA § 50-21-25 (b). The exemption from tort liability provided by the GTCA applies to actions against state employees in their official and individual capacities — “merely styling a suit against a public officer as one brought against him personally does not deprive him of any immunity to which he might otherwise be entitled for his official acts under the GTCA.” Davis, 275 Ga. App. at 772 (citation and punctuation omitted). What constitutes actions taken within the scope of official duties or employment under the GTCA is also broadly construed. For example, in Davis, supra, we found that an alleged sexual assault by a state trooper during a traffic stop was within the scope of the trooper’s official duties, and that the trooper was immune from suit on these allegations under the GTCA. Id.; accord Massey v. Roth, 290 Ga. App. 496, 497-498 (659 SE2d 872) (2008). Young’s complaint alleged that Ferrell sexually assaulted him while arresting him as a GWCCA police officer. Assuming the truth of these allegations, Ferrell acted within the scope of his official duties or employment for the GWCCA and is immune from the suit brought against him, individually, based on the state law claims.

Because the allegations of the complaint establish that Ferrell is entitled to immunity from the suit, the Superior Court lacked subject matter jurisdiction. Dept. of Human Resources v. Nation, 265 Ga. App. 434, 438-439 (594 SE2d 383) (2004); Shelnutt v. Ga. Dept. of Transp., 272 Ga. App. 109, 110 (611 SE2d 762) (2005).

The parties to litigation cannot give to a court jurisdiction of the subject matter of a suit when it has none by law; and when a trial court, in a case over which it has as to subject matter no jurisdiction, renders therein any judgment except one of dismissal, and the case is brought here for review . . . this court will of its own motion reverse the judgment whether exception to it for want of jurisdiction in the court below be taken ... or not.

Ga. R. & Banking Co. v. Redwine, 208 Ga. 261, 262, 266 (66 SE2d 234) (1951) (because record showed trial court had no subject matter jurisdiction, the court’s judgment was a nullity and must be reversed); Cutts v. Scandrett, 108 Ga. 620, 633-634 (34 SE 186) (1899) (because record disclosed judgment was rendered by a court without subject matter jurisdiction, appellate court will reverse the judgment even though the issue was not raised on appeal). Because Ferrell was immune from suit on the claim brought against him under state law, the default judgment entered on that claim was a nullity. When the record discloses that the trial court lacked subject matter jurisdiction, “we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” Steel Co. v. Citizens for a Better Environment, 523 U. S. 83, 95 (118 SCt 1003, 140 LE2d 210) (1998) (citation and punctuation omitted); OCGA § 9-11-12 (h) (3). Accordingly, we vacate the default judgment and remand with direction to dismiss the state law cause of action for lack of subject matter jurisdiction.

Judgment vacated and case remanded.

Dillard, J., concurs. McMillian, J., concurs in Division 2 and in the judgment.

On Motion for Reconsideration.

In his motion for reconsideration, Young attached a copy of an order entered by the trial court on December 18, 2012, after the appeal was docketed in this Court. Young contends that we overlooked the order and that our opinion should be reconsidered in light of the order. The order was not considered because it was not made a part of the appellate record. Moreover, this Court will not consider any document attached to a motion for reconsideration, which has not been certified and transmitted to this Court as part of the appellate record or as a supplement thereto. OCGA § 5-6-41 (f); see Court of Appeals Rule 24 (g).

Decided July 5, 2013

Reconsideration denied July 22, 2013.

Carlock, Copeland & Stair, Adam L. Appel, for appellant.

Michael D. Harper, for appellee.

Motion for reconsideration denied.

       To the extent Young also sued Ferrell in his official capacity as a GWCCA police officer, this constituted a suit against the GWCCA. Hafer v. Melo, 502 U. S. 21, 25 (112 SCt 358, 116 LE2d 301) (1991). This appeal concerns only Young’s claims against Ferrell, individually.

       This cause of action is potentially subject to the defense that a government official performing a discretionary function is entitled to qualified immunity from personal liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (102 SCt 2727, 73 LE2d 396) (1982). Ferrell does not assert the defense of qualified immunity.


text:
    A13A0589.
    PANIK v. DUNES VILLAGE PROPERTIES, LLC.
    (744 SE2d 900)
   ANDREWS, Presiding Judge.

This appeal arises on a complaint for damages filed by Dunes Village Properties, LLC (Dunes Village), against USA Slide, Inc. (USA Slide), its owner now deceased, Richard Andert, and USA Slide employees Keith Panik and Michael Homer. Dunes Village filed its complaint based upon USA Slide’s failure to timely complete the fabrication and installation of four waterslides during the construction of a condominium complex in Myrtle Beach, South Carolina, known as Dunes Village Phase Two (the Project). Dunes Village alleged counts of breach of contract, unjust enrichment, and money had and received, against USA Slide, and counts for fraud, conversion, punitive damages, and attorney fees against each of the individual defendants. By its final judgment, the trial court granted Dunes Village’s motion to enforce a settlement agreement and request for attorney fees against USA Slide in the amount of $125,000, together with prejudgment interest of $6,712.33. The trial court otherwise granted Dunes Village’s motion for summary judgment against Andert, Panik, and Homer on its fraud claims.

On appeal, Panik claims the trial court erred by granting summary judgment in favor of Dunes Village. Panik also asserts that the trial court “erred in imposing liability against [him as] an employee of a corporate defendant in violation of the legal doctrine of respondeat superior.” (emphasis in original). Finding that Panik made no representation proximately resulting in the damages at issue, we conclude that summary judgment for Dunes Village was error and reverse.

In Georgia,

[s]ummary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Ponder v. Brooks, 256 Ga. App. 596, 597 (569 SE2d 267) (2002).

So viewed, the evidence shows that on August 21, 2007, Dunes Village, a South Carolina corporation, entered into a $454,280 contract with USA Slide, a Georgia corporate entity, for the fabrication, supply, delivery, and installation of a four-flume waterslide at the Project, then under construction. Prior to the time the parties entered into the contract, Dunes Village’s principal and its owner operator, George Buchanan, met with USA Slide owner Andert and informed him “that time was of the essence and that the waterslides had to be installed by the time the Project was scheduled to be substantially completed on October 31, 2007.” Buchanan entered into the contract by tendering a deposit by check payable to USA Slide in the amount of $158,998. Performance under the contract commenced on August 23, 2007. On or about November 28, 2007, USA Slide’s failure to provide the waterslides as promised led Buchanan to cancel the contract and demand the return of Dunes Village’s $158,998 deposit. The instant litigation followed.

1. Panik contends that summary judgment for Dunes Village on its claim of fraud against him was error, arguing that jury questions remain under South Carolina law as to “18 statements of fact” which he sets out in his appellate brief. Reviewing the trial court’s grant of summary judgment to Dunes Village de novo as we must, Matjoulis, supra, 226 Ga. App. at 459 (1), we find that reversal is required under South Carolina law for lack of evidence showing any representation made by Panik proximately resulting in the tender of the $158,998 deposit which Dunes Village alleges as damages. Consequently, Panik’s claims of material issues of fact remaining are immaterial.

South Carolina law governs the instant fraud claim because the Project is located in South Carolina. Village Dunes is organized under the laws of South Carolina, and the economic injury resulting from the fraud occurred in South Carolina.

Under the rule of lex loci delictis, tort cases are generally governed by the substantive law of the place where the tort or wrong occurred. In torts of a transitory nature, the place of the wrong is the place where the last event occurred necessary to make an actor liable for the alleged tort.

Intl. Business Machines Corp. v. Kemp, 244 Ga. App. 638, 640 (1) (a) (536 SE2d 303) (2000). Fraud claims are governed by the substantive law of the state where the “ last event’ ” occurred. Id.

The elements which must be shown to prove fraud under South Carolina law are:

(1) a representation; (2) its falsity; (3) its materiality; (4) either knowledge of its falsity or reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on its truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury.

(Citation and punctuation omitted.) Armstrong v. Collins, 366 SC 204, 218 (I) (A) (621 SE2d 368) (2005).

On appeal and in its motion for summary judgment, Dunes Village argues that

[a]s a proximate result of the representations made by [Panik], which supported the representations of Andert, Dunes [Village] suffered damages. . . . Had Dunes [Village] known that the Slides would not be delivered on the dates promised, [its] $158,998.00 deposit would have never been tendered and Dunes [Village] would have retained another contractor.

The record shows that Panik spoke with multiple Dunes Village employees and contractors during the period August through November 2007 and consistently assured them that the waterslide job was progressing on schedule. Dunes Village, however, has come forward with no evidence showing that any such representation occurred before or had a bearing on Buchanan’s decision to accept USA Slide’s proposed contract by tendering its claimed damages, the $158,998 deposit. It is undisputed that Andert met with Buchanan alone in Myrtle Beach on or about August 3,2007 for the purpose of discussing whether USA Slide might fabricate, supply, deliver, and install the waterslides Dunes Village sought on a “not-later-than” October 31 timetable. At some point thereafter, but before the contract was entered into, Andert assured Buchanan that USA Slide would meet that deadline. Although Panik’s contacts with Dunes Village employees and contractors began in August 2007, these did not begin until after the contract had been entered into when Andert made a second trip to Myrtle Beach, and took Panik and two other employees with him to confirm that USA Slide’s water slide design was compatible with existing foundation work on the job site. The record shows that Panik, or a subordinate working for him, prepared one page of the proposed contract which Andert presented to Buchanan. That page, however, was a draftsman’s drawing depicting the waterslides USA Slide proposed to build and install.

Decided June 28, 2013

Reconsideration denied July 22, 2013.

John C. Edwards, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, John E. Menechino, Jr., for appellee.

Because there was no evidence of any Panik representation bearing upon Buchanan’s tender of the $158,998 deposit, summary judgment for Dunes Village and against Panik on Dunes Village’s claim of fraud was error. Id.; see also Lau’s Corp., supra, 261 Ga. at 491.

2. In light of our disposition of Division 1, we do not address Panik’s remaining claim of error.

Judgment reversed.

Dillard and McMillian, JJ., concur.