text:
    A14A0695.
    POSTELL et al. v. ALFA INSURANCE CORPORATION et al.
    (757 SE2d 661)
   Phipps, Chief Judge.

Crandall Postell and Sharon Davis filed suit against Alfa Insurance Corporation, Dean P. Bagwell, American Home Shield Corporation, Oxford Heating & Air, Inc., and James E. Calloway d/b/a Calloway Construction. After a jury trial, the trial court entered a “Directed Verdict Order and Final Judgment.” Dissatisfied therewith, Postell and Davis filed a notice of appeal, designating that a trial transcript be included in the record on appeal. The defendants filed a motion to dismiss the notice of appeal, which the trial court granted. In this appeal, Postell and Davis contest that dismissal. Because the trial court failed to make requisite findings, we vacate the dismissal order and remand the case.

In seeking to dismiss Postell’s and Davis’s notice of appeal, the defendants cited OCGA § 5-6-48 (c); they alleged a delay in the filing of the transcript and alleged also a delay in the transmission of the record to the appellate court for reason that Postell and Davis had failed to pay costs. The trial court conducted a hearing, then issued an order that provided only: “The Defendant’s [sic] Joint Motion to Dismiss Appeal is hereby GRANTED.”

OCGA § 5-6-48 (c) states, in pertinent part:

... [A] trial court may, after notice and opportunity for hearing, order that [a party’s] appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party. In like manner, the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court. . . .

Thus,

[i]n order for a trial court to dismiss an appeal for unreasonable delay in the filing of the transcript or in the transmission of the record, OCGA § 5-6-48 (c) “requires the trial court to determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable, and then to exercise discretion in deciding whether to dismiss the appeal.”
Although we review the trial court’s decision for an abuse of discretion, the trial court must make findings on these issues before we may determine whether its discretion was abused. Failure to make these findings mandates that we vacate the order dismissing the appeal and remand the case with the direction that findings of fact be entered on these issues.

Decided April 15, 2014.

Crandall O. Postell, pro se.

Sharon E. Davis, pro se.

John D. Carey, Sherman E. Moody III, Haygood, Lynch, Harris, Melton & Watson, C. Robert Melton, Martin Snow, William H. Larsen, Thomas P. Allen III, for appellees.

Here, the trial court summarily dismissed the notice of appeal. The defendants assert that certain remarks made by the trial court during the hearing indicate that the court engaged in the analysis of the pertinent factors, and claim that the evidence authorized the dismissal. Even if so, “the trial court did not make the findings of fact necessary to vest it with discretion to dismiss the appeal.”* * Because “the trial court had no discretion to dismiss the appeal,” we vacate the dismissal order and remand the case for further action in accord with this opinion.

Judgment vacated and case remanded.

Ellington, P. J., and McMillian, J., concur.

        Gruner v. Thacker, 320 Ga. App. 146, 148 (1) (739 SE2d 440) (2013), quoting Propst v. Morgan, 288 Ga. 862, 863 (708 SE2d 291) (2011) (citation omitted).

        Rogers v. Norris, 262 Ga. App. 857-858 (1) (586 SE2d 747) (2003) (citations and punctuation omitted); see Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990) (setting forth the three criteria for the dismissal of an appeal for failure to timely file a transcript, explaining that the trial “court must find all these conditions before an exercise of discretion is authorized,” and remanding case because trial court failed to make a specific finding); Grant v. Kooby, 310 Ga. App. 483, 484-486 (713 SE2d 685) (2011) (setting forth the three criteria for the dismissal of an appeal for failure to timely pay costs, explaining that the trial court must find all these conditions before exercising its discretion in deciding whether to dismiss the appeal, vacating judgment and remanding case because the trial court’s “summary order” deprived appellate court of ability to engage in meaningful review); Pistacchio v. Frasso,
        309 Ga. App. 583, 584 (711 SE2d 98) (2011) (vacating judgment and remanding case, where the trial court’s order lacked express finding on threshold issue of whether the delay was unreasonable); Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 611 (1) (414 SE2d 915) (1992) (reversing judgment and remanding case, where the trial court failed to make findings of fact and instead ruled, “without elaboration,” on the motion to dismiss the appeal); Ga. Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990) (“The failure to ascertain the reasonableness and excusableness of the delay mandates a reversal of the order and a remand with instruction that findings be made on these issues.”) (citations omitted).

        Dalton v. Vo, 224 Ga. App. 382, 382-383 (480 SE2d 377) (1997) (vacating the dismissal order and remanding the case to the trial court, where the trial court failed to make the requisite findings) (citation omitted); see Gruner, supra (“[A] trial court errs by not engaging in the analysis outlined by the Supreme Court [in Propst, supra] and making the requisite findings of fact when addressing a motion to dismiss an appeal [pursuant to OCGA § 5-6-48 (c)].”) (citations omitted; emphasis supplied); Rogers, supra at 858 (1) (“Even presuming the evidence supported the trial court’s actions, we must first have the required findings of fact for review so that we know that the court considered the correct factors in exercising its discretion.”); Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359) (1994) (remanding case because trial court failed to rule affirmatively as to whether unreasonable delay was excusable and who was the cause of the delay, notwithstanding “a plethora of evidence to support the trial court’s finding that unreasonable delay ha[d] occurred”); Ga. Dept. of Human Resources, supra (reasoning that, despite a party’s “numerous record and legal citations regarding what facts constitute an unreasonable and inexcusable delay, . . . the crucial point is that the trial court must make such findings”; determining that the “order merely granted the motion to dismiss, and the court did not orally state any findings at the conclusion of the hearing” and therefore reversing the judgment and remanding the case for requisite findings).

        Pistacchio, supra; see Crenshaw, supra.


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A13A2373.
    ISLAM v. WELLS FARGO BANK, N.A. et al.
    (757 SE2d 663)
   ELLINGTON, Presiding Judge.

Manira Islam filed suit against Wells Fargo Bank, N.A., and Bank of America Corporation (collectively, “the banks”), asserting a claim for fraud. She appeals from an order of the trial court that purports to grant the banks’ joint motion to dismiss her complaint for failure to state a claim. Islam contends that the court erred by considering matters outside the pleadings without following the procedures required to convert the motion to dismiss into a motion for summary judgment. She also contends that the trial court erred in concluding that her complaint failed to state a fraud claim against the banks. For the reasons explained below, we reverse the order of the trial court and remand the case for proceedings consistent with this opinion.

A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525 (1) (668 SE2d 723) (2008). Such pleadings “include any exhibits attached to and incorporated into the complaint and the answer.” (Citation omitted.) Babalola v. HSBC Bank, USA, 324 Ga. App. 750 (751 SE2d 545) (2013). As an appellate court, “[w]e review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted[.]” (Citation and punctuation omitted.) Id.

In this case, Islam’s complaint contains the following allegations. Bank of America owned Lot 14 in the Eskimo Heights subdivision in DeKalb County; the address of the property was “636 Warren Avenue, Scottdale.” Branch Banking and Trust Company (“BB&T”) owned an adjacent lot in the subdivision, Lot 15; the address of that lot was “632 Warren Avenue, Scottdale.” The lots were approximately the same size, and a two-story, single-family home had been constructed on each of the lots. The home on Lot 14, however, had been substantially destroyed and rendered uninhabitable by a fire on September 26, 2007. After the fire, Lot 14 had an assessed value of approximately $10,000.

In January 2008, Bank of America placed Lot 14 up for sale, and Wells Fargo Bank acted as its attorney in fact in the sale. Wells Fargo employed a real estate broker and a real estate agent to act as its agents in the sale of the property. On behalf of Wells Fargo, the broker and agent prepared, or caused to be prepared, a listing document advertising the sale of the property. The listing document identified the property as “Lot 14” in the Eskimo Heights subdivision in Scottdale and stated that the address of the property was “636 Warren Avenue.” However, although the home on the property had been destroyed by a fire over three months before, the listing document included a photograph of an intact, two-story home, described the property as a new home that needed to be finished on the inside, and gave a selling price of $54,000.

Wells Fargo’s real estate agent arranged for Islam to view and inspect the property that the listing document identified as “636 Warren Avenue.” The address on the mailbox of that property identified the property as “636 Warren Avenue,” and the same number was affixed to the house. After Islam inspected the property that had been identified to her as “636 Warren Avenue,” Islam made an offer to purchase the property from Bank of America. The purchase agreement signed by Islam set forth the property’s address as “636 Warren Avenue [,] Scottdale, GA 30079,” and contained no further description of the property. Agents or employees of Wells Fargo conducted the closing of the sale at Wells Fargo’s office in DeKalb County on December 8,2008. At the closing, Wells Fargo’s real estate agent gave Islam keys to the house on the property that the banks and their agents had consistently identified as “636 Warren Avenue” in Scottdale. Islam then contracted for improvements to that house and, when she had completed the improvements, she placed the house up for sale. On or about September 1, 2009, Islam entered into a contract to sell the house for $116,000.

About two weeks later, however, a representative of BB&T notified Islam that it owned the property that had been identified to her as “636 Warren Avenue” — the property that she had inspected, received the keys for, and substantially improved. Unbeknownst to Islam, the address of that property was actually “632 Warren Avenue” on Lot 15 of the Eskimo Heights subdivision in Scottdale. Lot 15 was next door to Lot 14 of the subdivision, which had the real address of “636 Warren Avenue” and had been placed for sale by Bank of America after the house thereon had been destroyed by fire in September 2007. Consequently, Islam not only purchased “636 Warren Avenue” from Bank of America at a price significantly greater than the $10,000 assessed value of that property, she also lost the value of her improvements to the adjacent house at “632 Warren Avenue,” as well as her lost profit from the pending sale of that house.

In November 2012, Islam filed suit against the banks, BB&T, the real estate broker, and the real estate agent. As to the banks, Islam alleged that they made false representations to her of material facts. Specifically, she alleged that the banks and their agents had consistently misrepresented to her that Bank of America owned and was offering for sale the property with the intact house (which they had misidentified as “Lot 14, 636 Warren Avenue”), instead of the uninhabitable adjacent property with an assessed value of approximately $10,000. She also alleged that the banks’ misrepresentations were made knowingly or with reckless disregard for the truth, that she reasonably relied on them, and that the misrepresentations induced her to purchase a property that lacked the improvements they represented it to have (a nearly-finished two-story home) and to take possession of and improve a property other than the one conveyed to her. Islam attached three documents to her verified complaint: (1) a listing for the sale of real property identified as Lot 14 of the Eskimo Heights subdivision, 636 Warren Avenue, Scottdale; the listing included a photograph of an intact, two-story house, gave a sale price of $54,000, and stated, inter alia, that it was a “new home, needs to be finished on the inside”; (2) a listing for the sale of real property identified as Lot 15 of the Eskimo Heights subdivision, 632 Warren Avenue, Scottdale; the listing included a photograph of an intact, two-story, newly constructed house and gave a list price of $49,900; and (3) a May 2009 survey for Lot 15 of the Eskimo Heights subdivision, Scottdale, which noted that the “address on house is listed as #636 [Warren Avenue, but] address . . . per tax assessor’s [office] is #632 [Warren Avenue].”

The banks filed a joint answer; they did not attach any documents to the answer. They subsequently filed a joint motion to dismiss Islam’s complaint for failure to state a claim. The banks attached an assortment of documents as exhibits to their motion, and the banks expressly relied on those exhibits in arguing that the documents disproved or contradicted the allegations in Islam’s complaint and, therefore, that the court should dismiss the complaint for failure to state a claim.

On March 28, 2013, the trial court issued a notice of a hearing on the banks’ motion to dismiss, to be conducted on April 23, 2013. During the hearing, the parties presented oral argument on the motion to dismiss; they did not present any evidence. Following the hearing, the court issued an order dismissing Islam’s fraud claim against the banks, finding that she had failed to prove that either of the banks made any misrepresentations to her or that they had an intent to deceive her during the sales transaction. The court’s order supported that finding by quoting a statement that was not part of the parties’ pleadings and by relying on assertions made by the parties during oral argument. According to the order, “[d]uring oral argument, it was made clear to this Court that neither [Islam nor the banks] were aware of the mistake [in the actual identities of the two properties] that was made at the time of the sales transaction[,] and [Islam] presents nothing to the contrary.”

1. Islam contends that the court erred by considering matters outside the pleadings and, as a result, converting the motion to dismiss into a motion for summary judgment without providing her with the requisite notice and a reasonable opportunity to present evidence in opposition to summary judgment. We agree.

Although a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when it does so it converts the motion to dismiss into a motionforsummaryjudgment,governedbyOCGA § 9-ll-56.[] In accordance with this procedure, the trial court has the burden of informing a plaintiff that it will be considering exhibits attached to the defendant’s motion to dismiss and that the plaintiff would have no less than 30 days within which to submit his [or her] own evidence in response to the motion for summary judgment.

(Citations and punctuation omitted.) Babalola v. HSBC Bank, USA, 324 Ga. App. at 751, n. 4.

In this case, in ruling on the motion to dismiss, the trial court was required to view the allegations and documents in the pleadings in Islam’s favor and then limit its determination to whether there was any possibility that she would be able to produce sufficient evidence at trial to prove that she was entitled to relief. See Stendahl v. Cobb County, 284 Ga. at 525 (1). Instead, the court’s order shows that it improperly considered documents outside the pleadings and arguments that attacked the credibility of Islam’s allegations and disputed the factual basis for such allegations. In so doing, the trial court converted the motion to dismiss into a motion for summary judgment without complying with the procedural requirements for considering a summary judgment motion. Babalola v. HSBC Bank, USA, 324 Ga. App. at 751, n. 4.

Consequently, in reviewing de novo the court’s order dismissing Islam’s fraud claim against the banks, this Court will consider only the pleadings and the documents attached thereto, while viewing them in the light most favorable to Islam, as required. See Stendahl v. Cobb County, 284 Ga. at 525 (1); Babalola v. HSBC Bank, USA, 324 Ga. App. at 751, n. 4.

2. As shown above, the trial court dismissed Islam’s fraud claim after finding that she had failed to prove that either of the banks had made any misrepresentations to her, that they knew that there was a mistake in the identification of the properties before she purchased the property, or that they had an intent to deceive her during the sales transaction. The court erred in so ruling.

(a) Under current Georgia law,

it is not necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. Rather, the Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act. Thus, a motion to dismiss for failure to state a claim should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof. Put another way, if, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

(Citations and punctuation omitted; emphasis supplied.) Babalola v. HSBC Bank, USA, 324 Ga. App. at 752 (2).

In the instant case, Islam’s complaint contained, inter alia, the following specific allegations of fraudulent conduct by the banks: The banks “made false representations to [Islam] as to the correct identity of the property being offered for sale by [them].” These statements “were false representations of material facts.” The banks “never informed [Islam] that the property they offered for sale at 636 Warren Avenue was in fact a lot with a burned down house with an assessed value of approximately $10,000.00.” The banks’ false representations “as to the identity of the property they were offering for sale were either known by [them] to be false or were made with such reckless disregard for the truth that [they] may be held to have had knowledge that the statements were false.” The banks’ false representations “caused [Islam] to base her actions in purchasing the property on a mistake as to the true identity of the property that she contracted for, purchased and renovated.” Due to the banks’ misrepresentations, Islam “made substantial improvements to the exterior and interior of the residence on Lot 15 of the Eskimo Heights subdivision on Warren Avenue in Scottdale, GA [which she later learned was] owned by BB&T.” Finally, Islam asserted that she had reasonably relied on the banks’ misrepresentations and, as a result, had suffered monetary damages for which she was seeking compensation.

Given these allegations, we conclude that the trial court erred in ruling that Islam’s complaint failed to set forth sufficient allegations to support a fraud claim against the banks. Babalola v. HSBC Bank, USA, 324 Ga. App. at 752 (2). Consequently, we reverse the trial court’s order dismissing Islam’s complaint with prejudice, and remand this case for proceedings consistent with this opinion. Id.

Decided April 18, 2014.

Richard J. Dreger, William F. Rucker, for appellant.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Hopper, Dylan W. Howard, Parker, Hudson, Rainer & Dobbs, Nancy H. Baughan, Vincent J. Arpey, for appellees.

(b) Finally, to the extent the trial court dismissed Islam’s fraud claim on the basis that she had failed to prove her allegations at this point in the proceedings, such ruling also constitutes reversible error. As explained above, unless the allegations of the complaint show with certainty that the plaintiff will never be able to present evidence to prove that he or she is entitled to relief, a motion to dismiss for failure to state a claim should not be granted. Babalola v. HSBC Bank, USA, 324 Ga. App. at 752 (2).

3. Given our rulings in Divisions 1 and 2, supra, Islam’s remaining enumerated error is moot.

Judgment reversed and case remanded.

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

       In her complaint, Islam also asserted claims against other named defendants, but those defendants are not parties to this appeal.

       Notably, Lot 14 of the subdivision had a mailbox displaying the address as “640 Warren Avenue,” and the report filed by the DeKalb County Fire Department regarding the fire on Lot 14 listed the address of Lot 14 as “640 Warren Avenue.”

       SeeOCGA § 9-11-56 (c) (A motion for summary judgment “shallbe served at least 30 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]”); (e) (“Supporting and opposing affidavits shallbe made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. All affidavits shall be filed with the court and copies thereof shallbe served on the opposing parties. When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”).

       See also OCGA § 9-11-12 (c) (“If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.”).

       Although a nonmovant may waive, through acquiescence, any error arising from the trial court’s failure to provide such notice before considering evidence outside the pleadings, see Gaddis v. Chatsworth Health Care Center, 282 Ga. App. 615, 617 (1) (639 SE2d 399) (2006), the record in this case affirmatively shows that Islam objected to the court’s consideration of evidence outside the pleadings when deciding whether to grant the motion to dismiss.

       We note that, even if Islam’s complaint had failed to comply with OCGA § 9-11-9 (b), which provides that fraud claims must be pled with particularity, dismissal of the complaint was not required in this case.
      Where a plaintiff. . . fails to identify specifically the allegedly fraudulent acts or statements on which his fraud claim is based, . . . the proper remedy is a more definite statement, not a dismissal of the complaint or judgment on the pleadings, at least so long as the plaintiff is able and willing to amend his pleadings to conform to the statutory requirements.
      (Citations and punctuation omitted.) Babalola v. HSBC Bank, USA, 324 Ga. App. at 755 (2) (c). See OCGA § 9-11-12 (e) (“If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a proper responsive pleading, he shall nevertheless answer or respond to the best of his ability, and he may move for a more definite statement. The motion shall point out the defects complained of and the details desired.”).
      It follows that, if the banks believed that Islam’s complaint failed to comply with OCGA § 9-11-9 (b), they could have moved for a more definite statement. The trial court could then “order [Islam] to make a more definite statement of [her] fraud claim, identifying the ways in which the complaint fails to conform to the pleading requirements of the Civil Practice Act, and warning [Islam] about the potential consequences of a failure to replead in a way that conforms to these requirements.” (Citation and punctuation omitted.) Babalola v. HSBC Bank, USA, 324 Ga. App. at 755 (2) (c). The banks, however, failed to seek a more definite statement of Islam’s fraud claim.


text:
    A14A0515.
    BUILDERS INSURANCE v. TENENBAUM.
    (757 SE2d 669)
   ELLINGTON, Presiding Judge.

Sheldon Tenenbaum obtained a judgment in the State Court of Chatham County against Hallmark Homes of Savannah, Inc., in his action for damages arising from defective construction of a house. To collect the judgment, Tenenbaum then initiated the instant garnishment action pursuant to OCGA § 18-4-60 et seq. against Hallmark, as the defendant, and Builders Insurance (A Mutual Captive Company), as the garnishee. In support of his request for a summons of garnishment, Tenenbaum averred that Builders holds garnishable assets owned by Hallmark, specifically, benefits that it owes to Hallmark under certain policies of commercial general liability (“CGL”) insurance that it issued to Hallmark. Builders answered and denied that Hallmark is entitled to benefits under the subject policies. Tenenbaum and Builders filed motions for summary judgment; the trial court granted Tenenbaum’s motion, denied Builders’ motion, and directed that judgment be entered against Builders. We granted Builders’ application for a discretionary appeal, and, for the reasons explained below, we affirm in part and vacate in part.

Because the facts relevant to the question of whether the subject policies provided liability insurance benefits to Hallmark for Tenenbaum’s claims are undisputed, we review the trial court’s ruling de novo.

The record shows the following. On November 17, 2002, Tenenbaum and Hallmark executed a contract for the construction of a house on Tenenbaum’s property on Tybee Island in accordance with a certain set of architectural plans and specifications. After construction began in January 2003, Builders issued Hallmark a CGL policy for the period January 23, 2004, through January 23, 2005. Builders issued Hallmark CGL policies for subsequent terms, for a total of four policies, with the last policy period ending on July 10, 2008.

During the construction, Tenenbaum and the architect communicated with Hallmark’s principals, Greg Hall and Stephen Hall, about deviations from the architectural plans and specifications and other alleged defects. As Hallmark completed construction in April 2004, the parties developed a “punch list” of specific issues to be completed or corrected. The punch list included problems with the stucco and leaks that had caused water damage to floors and areas of mold and rot.

Tenenbaum was never satisfied with Hallmark’s efforts to correct the construction defects. On July 14,2006, an attorney representing Tenenbaum wrote a letter to Stephen Hall, Hallmark’s registered agent, “pursuant to OCGA § 8-2-38[* **] [to provide] a notice of claim as required prior to initiating an action against Hallmark ..., as the contractor of . . . Tenenbaum’s Tybee Island dwellingf.]” In the July 14, 2006 letter, Tenenbaum “assert [ed] construction defect claims[,]” including problems with the stucco and concrete floors. In that letter, Tenenbaum’s attorney also asked Hallmark to disclose, pursuant to OCGA § 33-3-28, each insurance company which might provide liability insurance coverage for his claims. Hallmark undertook to make repairs to correct the defects and resulting damage.

By letter dated December 31, 2008, Tenenbaum’s attorney again provided Hallmark with ante litem notice of “numerous construction defects” that Tenenbaum hadbrought to Hallmark’s attention “through the years” and stated that “[t]here continue[ ] to be leaks, moisture issues and stucco problems.” The letter specified, inter alia, that

[m]oisture has been discovered infiltrating the front porch which is causing mold and rot in the ceiling space. The leaks and resulting damage [are] caused by improper flashing installed by Hallmark.... There also continue [ ] to be leaks and moisture problems on the rear of the house. . . . On the rear of the house [,] water leaks into the house and is getting into the speakers and lights in the ceiling. Apparently, these leaks are also caused by improper flashing on the rear decks.

In the letter, counsel stated that, if Hallmark failed to settle his claims by making repairs, paying compensation, or both, Tenenbaum “may bring an action against Hallmark ... for the damage and defective conditions described.” Hallmark again undertook to make repairs.

By letter dated August 4, 2Q09, Tenenbaum’s attorney conveyed Tenenbaum’s order that Hallmark cease work. Counsel advised Hallmark that Tenenbaum had hired another contractor to address the damage resulting from the construction defects. Counsel also reiterated the request that Hallmark disclose its liability insurance carriers and requested Hallmark’s agent to “promptly place any liability insurer that may provide coverage to you for these claims upon notice of Mr. Tenenbaum’s intent to seek recovery from Hallmark[.]”

On December 18, 2009, Tenenbaum filed his suit for damages against Hallmark, asserting claims for breach of contract, breach of express warranty, and breach of implied warranty. On January 21, 2010, Hallmark notified Builders of Tenenbaum’s action and requested that Builders provide a defense under the four CGL policies.

By letter dated February 12, 2010, Builders agreed to defend Hallmark subject to a reservation of rights. In addition to a global reservation of its right to disclaim liability, Builders cited several specific provisions contained in the policies. Builders stated that the reservations specified in the letter were not meant to be exclusive but were the ones of which it was presently aware, and it reserved the right to amend its reservation of rights after further investigation.

By letter dated September 19, 2011, Builders made a “supplemental response” to Hallmark’s notice of claim, reiterating that it was providing a defense under a reservation of rights and affirmatively stating that it had determined that there was no coverage for Tenenbaum’s claims. Builders’ September 19, 2011 letter noted that Hallmark had received Tenenbaum’s statutory notices of claims in 2006 and 2008 but first provided notice to Builders of Tenenbaum’s allegations in 2010.

After a bench trial, the trial court ruled in favor of Tenenbaum in his suit for damages and entered judgment against Hallmark in the amount of $366,867.48. In this ensuing garnishment action, the trial court determined that Tenenbaum’s judgment was a covered liability under Hallmark’s CGL policies such that Builders was liable as a garnishee for Hallmark’s debt.

1. Builders contends that the trial court erred in finding coverage, because Hallmark failed to satisfy its obligation under the policies to provide prompt notice to Builders of Tenenbaum’s claims.

Although the four CGL policies that Builders issued to Hallmark were not identical in every respect, each included the following relevant definitions, terms, and conditions in the coverage for property damage:

Insuring Agreement [and Duty to Defend]

[Builders] will pay those sums that [Hallmark] becomes legally obligated to pay as damages because of.. . “property damage” to which this insurance applies. [Builders] will have the right and duty to defend [Hallmark] against any “suit” seeking those damages. . . .
This insurance applies to . . . “property damage” only if . . . [t]he . .. “property damage” is caused by an “occurrencef.]” . ..

Duties in the Event of Occurrence, Offense, Claim or Suit

a. [Hallmark] must see to it that [Builders is] notified as soon as practicable of an “occurrence” or of an offense which may result in a claim. . . .
b. If a claim is made or “suit” is brought against any insured, [Hallmark must. . . [njotify [Builders] as soon as practicable. You must see to it that we receive written notice of the claim or “suit” as soon as practicable.

Definitions

“Occurrence” mean an accident, including continuous or repeated exposure to substantially the same general harmful conditions. . . .
“Property damage” means... [p]hysical injury to tangible property, including all resulting loss of use of that property. . . .
“Suit” means a civil proceeding in which damages because of... “property damage” ... to which this insurance applies are alleged. . . .

In the underlying suit concerning Hallmark’s liability, Tenenbaum obtained a judgment for damages for defective construction rendered by Hallmark (the insured). As the Supreme Court of Georgia has explained, CGL coverage generally is not intended to insure against liabilities “for the repair or correction of the faulty workmanship of the insured.” (Citation omitted.) Taylor Morrison Svcs. v. HDI-Gerling America Ins. Co., 293 Ga. 456, 460-461 (1) (746 SE2d 587) (2013). Construing the standard CGL insuring agreement, “the usual and common meaning of‘accident,’the definition of ‘occurrence’ that flows therefrom, and the additional limitations imposed by the requirement of ‘property damage [,]’ ” the Supreme Court held, however, that, subject to specific exclusions, a CGL policy may provide coverage when the defective work of the insured unexpectedly damages other, nondefective property or work. Id. at 461 (1). In this case, the trial court, which sat as the finder of fact in the underlying litigation, stated that it had based the judgment against Hallmark on such damage to nondefective work caused by other defective work, specifically, damages to framing, support beams, sheathing, sheetrock, and interior walls caused by improperly installed windows, improperly installed roofing materials, and improper flashing. Based on this, the trial court determined that the construction defects at issue constituted an occurrence that caused property damage, within the terms of the subject CGL policies.

As noted above, Hallmark’s duty under the policies to notify was not limited to giving Builders notice of the commencement of formal legal proceedings against Hallmark alleging liability for an accident; the policies placed a separate and distinct duty upon Hallmark to notify Builders “as soon as practicable of an ‘occurrence’. . . which may result in a claim.” Absent some justification, an insured’s failure to provide timely notice of an occurrence can defeat coverage under such a CGL policy, because a notice provision expressly made a condition precedent to coverage is valid and enforceable. Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 488 (1) (a) (649 SE2d 602) (2007). “[T]he facts and circumstances of a particular case may render an insured’s delay in giving notice of an occurrence to his insurer unjustified and unreasonable as a matter of law.” (Punctuation and footnote omitted.) State Farm Fire & Cas. Co. v. Walnut Ave. Partners, 296 Ga. App. 648, 651 (2) (675 SE2d 534) (2009). Still,

Georgia courts do not favor forfeitures [by insureds] in construing insurance contracts. Rather, courts infer waiver [by insurers] of nonessential parts of an insurance contract that are penal in nature. Courts strictly construe provisions of the contract that benefit the insurer and find even “small circumstances” show waiver by the insurance company.

(Citations and punctuation omitted.) Hoover v. Maxum Indem. Co., 291 Ga. 402, 407 (3) (730 SE2d 413) (2012). Thus, defenses to coverage can be waived where the insurer, without reserving its rights, assumes the defense of an action or continues such defense with knowledge, actual or constructive, of noncoverage. World Harvest Church v. GuideOne Mut. Ins. Co., 287 Ga. 149, 151 (695 SE2d 6) (2010); Prescott’s Altama Datsun v. Monarch Ins. Co., 253 Ga. 317, 318 (319 SE2d 445) (1984). An insured’s failure to satisfy a policy’s notice provisions under the policy is such a defense to coverage. See Hoover v. Maxum Indem. Co., 291 Ga. at 407 (3).

According to Builders, Hallmark’s duty to notify it of an occurrence was triggered, if not sooner, by Tenenbaum’s July 2006 and December 2008 ante litem notices. Hallmark’s failure to notify Builders of Tenenbaum’s threatened litigation until January 2010 would ordinarily provide a defense to coverage.* The record shows, however, that Builders was aware of Tenenbaum’s July 2006 and December 2008 ante litem notices •— which Tenenbaum referenced in his complaint — when it issued its first reservation-of-rights letter in February 2010, but it failed to notify Hallmark of that defense to coverage until its supplemental reservation-of-rights letter in September 2012. Although an insurer is not required to list each and every basis for contesting coverage in its initial reservation-of-rights letter in order to preserve its right to later assert a particular ground for noncoverage, it must act reasonably promptly upon learning of a policy defense. Thus, although Hallmark failed to give Builders timely notice of Tenenbaum’s claims, Builders in turn failed to give Hallmark timely notice of its intention to assert Hallmark’s untimely notice as a defense to coverage and thereby waived that defense. Builders’ argument that it was entitled to summary judgment based on Hallmark’s untimely notice therefore fails.

2. Builders contends that Hallmark had knowledge of Tenenbaum’s claims prior to the inception of the policies. Because the policies did not cover claims that were known to Hallmark before the specified policy period, Builders contends that the trial court erred in finding coverage.

As evidence that Hallmark knew of Tenenbaum’s claims before January 23, 2004, when the first policy period began, Builders cites to Tenenbaum’s communications with Greg Hall and Stephen Hall on April 9 and September 16, 2003. Neither of these communications, however, makes any reference to damage to framing, support beams, sheathing, sheetrock, and interior walls causedby improperly installed windows, improperly installed roofing materials, and improper flashing, that is, to damage to nondefective work, as found by the trial court. Accordingly, this argument is not supported by the record.

3. Builders contends that, if coverage exists, the amount of the judgment is incorrect.

(a) Builders contends that the policies contained a self-insured retention of $50,000, that its obligation to pay applied only to damages in excess of the self-insured retention, and, therefore, that the garnishment judgment must be reduced by that amount. The record shows, however, that the self-insured retention cited by Builders applied to claims for property damage “arising out of each temporary or permanent dwelling unit sold by [Hallmark] without a home warranty[.]” Because Tenenbaum’s claims for property damage did not arise out of a home sold by Hallmark, however, we find no basis for applying the self-insured retention to Tenenbaum’s judgment against Hallmark.

Decided April 18, 2014.

Hall Booth Smith, Denise W. Spitalnick, Christopher J. Watkins, Tiffany R. Winks, for appellant.

Callaway, Braun, Riddle & Hughes, DanaF. Braun, for appellee.

(b) The record shows that, before trial in the underlying action, Hallmark settled its third-party claims against the architect and four of Hallmark’s subcontractors for a total of $182,500 and dismissed the third-party defendants. Of that amount, only $157,500 was paid into the registry of the court. As a result of the trial in the underlying action, the trial court entered judgment against Hallmark in the amount of $366,867.48. Then, in this garnishment action, the trial court entered judgment against Builders in the amount of $209,484.98, or $157,382.50 less than the total judgment against Hallmark. Because the third-party defendants collectively were legally obligated to pay $182,500 based on Tenenbaum’s claims against Hallmark, the trial court erred in not setting off that greater amount when calculating Builders’ liability under the policies. Bishop v. Ga. Baptist Hosp., 136 Ga. App. 507, 508-509 (221 SE2d 682) (1975). Accordingly, the judgment is vacated and the case is remanded for correction of the judgment.

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

Phipps, C. J., and McMillian, J., concur.

       See Ross v. St. Paul Reinsurance Co., 279 Ga. 92, 93-94 (610 SE2d 57) (2005) (The question of whether an insurance policy provides coverage for a judgment debtor can be litigated in a garnishment action by the judgment creditor directly against the judgment debtor’s insurer.); Morgan v. Morgan, 156 Ga. App. 726, 727 (4) (275 SE2d 673) (1980) (The test as to whether funds in the hands of another are subject to garnishment is whether the defendant in garnishment could recover such funds by suit directly against the garnishee.).

       Georgia’s Appellate Practice Act provides that, except as provided in OCGA § 5-6-34 (a) (5), which does not apply in this case, an “[a]ppeal[ ] from [a] case] ] involving garnishment or attachment,” OCGA § 5-6-35 (a) (4), may not be appealed directly, but requires an application for discretionary review under OCGA § 5-6-35 (b). See OCGA § 5-6-34 (a) (5) (authorizing a direct appeal from any “judgment] ] or order] ] granting or refusing [an] application] ] for attachment against [a] fraudulent debtor] ]”).

        Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 726 (1) (698 SE2d 19) (2010) (Applying the rules of contract interpretation and construing a written insurance policy are matters of law for resolution by the trial court which are subject to de novo review on appeal.); Smith v. Nationwide Mut. Ins. Co., 258 Ga. App. 570, 570-571 (574 SE2d 627) (2002) (applying de novo standard of review to insurance coverage issue decided on undisputed facts); see also Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006) (“]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); Stoker v. Severin, 292 Ga. App. 870, 871 (665 SE2d 913) (2008) (“When the evidence is uncontroverted and no question of witness credibility is presented,... the trial court’s application of the law to undisputed facts is subject to de novo appellate review.”) (citation omitted).

       The General Assembly passed OCGA §§ 8-2-35 through 8-2-43 in 2004, based on its finding that “Georgia needs an alternative method to resolve legitimate construction disputes that would reduce the need for litigation while adequately protecting the rights of homeowners.” OCGA § 8-2-35. See OCGA § 8-2-36 (definitions). The General Assembly declared that “an effective alternative dispute resolution mechanism in certain construction defect matters should involve the claimant filing a notice of claim with the contractor that the claimant asserts is responsible for the defect and providing the contractor with the opportunity to resolve the claim without litigation.” Id. Specifically, in every action subject to the act,
      the claimant shall, no later than 90 days before initiating an action against a contractor, provide service of written notice of claim on that contractor. The notice of claim shall state that the claimant asserts a construction defect claim or claims and is providing notice of the claim or claims pursuant to the requirements of this part. The notice of claim shall describe the claim or claims in detail sufficient to explain the nature of the alleged construction defects and the results of the defects. In addition, the claimant shall provide to the contractor any evidence that depicts the nature and cause of the construction defect, including expert reports, photographs, and videotapes, if that evidence would be discoverable under evidentiary rules.
      OCGA § 8-2-38 (a). See OCGA § 8-2-37 (“If a claimant files an action without first complying with the requirements of [the act], on application by a party to the action, the court or arbitrator shall stay the action until the claimant has complied with the requirements of [the act],” excluding causes of action for damages “due to personal injury or death[.]”); Lumsden v. Williams, 307 Ga. App. 163, 168 (2) (b) (704 SE2d 458) (2010).

       Every insurer providing liability or casualty insurance coverage in this state and which is or may be liable to pay all or a part of any claim shall provide, within 60 days of receiving a written request from the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager stating with regard to each known policy of insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage.
      OCGA § 33-3-28 (a).

       Builders stated that,
      by quoting specific portions of [the policies, Builders] does not hereby waive any other defenses it may have under the subject policies or the law. The specific reservations set forth in this letter are not meant to be exclusive but are the only ones of which Builders ... is presently aware. Builders . . . intends to reserve its rights on all possible coverage bases, not simply those set forth in this letter. Should further facts be presented or be uncovered in the ongoing investigation, Builders... reserves the right to modify, amend or supplement the position set forth in this letter. Nothing in this letter shouldbe construed as an admission of liability for any portion of the claims or occurrences noticed, or as a waiver, modification or estoppel with respect to the . . . policy terms, conditions, limitations, or exclusions. All of Builders [’] . . . rights, remedies or defenses, both legal and equitable, remain expressly reserved.

        See Pinkerton & Laws Co. v. Ins. Co. of North America, 121 Ga. App. 26, 29 (2) (172 SE2d 465) (1970) (In order to establish a debt under an insurance policy owing by an insurer to the defendant in garnishment, the plaintiff must “show the insured’s compliance with all the conditions of the policy and connect the judgment with the garnishee’s liability under the policy.”) (citation and punctuation omitted).

       Cf. Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 486 (649 SE2d 602) (2007) (“Generally speaking, a commercial general liability policy covers certain business losses and situations in which a business is liable to a third party for personal injury or property damage.”) (citation and punctuation omitted).

       See Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. at 490 (1) (a) (accord).

       The insurer can avoid estoppel by giving timely notice of its reservation of rights which fairly informs the insured of the insurer’s position. ... At a minimum, the reservation of rights must fairly inform the insured that, notwithstanding the insurer’s defense of the action, it disclaims liability and does not waive the defenses available to it against the insured. The reservation of rights should also inform the insured of the specific basis for the insurer’s reservations about coverage[.]
      (Citations and punctuation omitted.) World Harvest Church v. GuideOne Mut. Ins. Co., 287 Ga. at 152. See generally Sonja Larsen, 16 Ga. Jur. Insurance § 19.8 (updated March 2014); Frank E. Jenkins III et al., Ga. Automobile Insurance Law § 16:1 (2013-2014 ed.); Judith F. Goodman et al., 1 Law and Practice of Ins. Coverage Litigation, §§ 8:5, 8:9 (updated June 2013).

        Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. at 490 (1) (a) (An unexcused one-year delay in notice to the insurer was unreasonable as a matter of law.); Allstate Ins. Co. v. Walker, 254 Ga. App. 315, 316-317 (1) (562 SE2d 267) (2002) (accord).

        Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. at 491 (1) (b); North Metro Directories Publishing v. Cotton States Mut. Ins. Co., 279 Ga. App. 492, 496 (2) (631 SE2d 726) (2006); Govt. Employees Ins. Co. v. Progressive Cas. Ins. Co., 275 Ga. App. 872, 876-877 (3) (622 SE2d 92) (2005); Frank E. Jenkins III et al., Ga. Automobile Insurance Law § 16:3 (2013-2014 ed.).

       See Hoover v. Maxum Indem. Co., 291 Ga. at 406 (2) (“[B]oilerplate language in [a] denial letter purporting to reserve the right to assert a myriad of other defenses at a later date[, including that coverage could be barred to the extent the insured failed to comply with the notice provisions under the policy,] did not clearly put [the insured] on notice of [the insurer’s] position[,]” and, therefore, the attempted reservation of rights was defective.); Daniel v.

        Safeway Ins. Co., 199 Ga. App. 833, 835 (2) (406 SE2d 266) (1991) (An insurer waives a defense to coverage if it fails to act promptly in asserting its rights.); Home Indem. Co. v. Godley, 122 Ga. App. 356, 361 (1) (177 SE2d 105) (1970) (An insurer is required to act seasonably in disclaiming liability.); State Farm Mut. Auto. Ins. Co. v. Anderson, 104 Ga. App. 815, 818 (123 SE2d 191) (1961) (An insurer’s delay in notifying an insured of a basis for denying coverage will be excused where it is traceable to the insurer’s lack of actual or constructive knowledge of the available defense.); see generally Judith F. Goodman et al., 1 Law and Practice of Ins. Coverage Litigation, § 8.22 (updated June 2013); Tom Muskus, 16 Ga. Jur. Insurance, § 10:13 (updated March 2014).

       Under the policies, coverage applies only if “property damage occurs during the policy period! ] and[,] [p]rior to the policy period, no insured... and no employee authorized by you to give or receive notice of an occurrence or claim! ] knew that the . . . property damage had occurred, in whole or in part.”


author: BARNES, Presiding Judge.

text:
    A14A0233.
    KRAYEV et al. v. JOHNSON.
    (757 SE2d 872)
   BARNES, Presiding Judge.

This dispute over the purchase of a used car went to trial, and the jury returned a verdict in favor of the purchaser, David J. Johnson, Jr., and against the sellers, Sergey Krayev and Elite Motor Sports, LLC (collectively, “Krayev”). Among other things, the jury found that Johnson had rescinded the purchase agreement for fraud and awarded him $10,500 in actual damages and $12,500 in punitive damages. After the jury reached its verdict, the trial court conducted an evidentiary hearing andfoundthat Johnson was entitled to $63,702.53 in attorney fees and expenses. Krayev now appeals from the trial court’s entry of final judgment, contending that the court erred in denying his motion for a directed verdict on Johnson’s claims for rescission and attorney fees. Krayev further contends that the trial court’s award of attorney fees was improper because Johnson failed to show which fees were attributable solely to his rescission claim. For the reasons stated below, we affirm.

Following a jury verdict, we view the evidence “in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict.” (Citation omitted.) Moore v. Stewart, 315 Ga. App. 388 (727 SE2d 159) (2012). So viewed, the evidence shows that on August 26, 2011, Johnson purchased a used BMW from Krayev. The purchase agreement signed by the parties provided that Johnson would make a down payment of $10,000 and 20 monthly payments of $753.61 beginning in October 2011. The purchase agreement also included a merger clause that stated: “This Agreement constitutes the entire agreement and understanding between the parties and there are no other representations, agreements or understandings by or between the parties.”

Before the parties signed the purchase agreement, Krayev told Johnson that he owned Elite Motor Sports, which he said “dealt in high end cars.” Krayev also gave Johnson an emissions inspection report for the BMW from July 2011 that showed that the car had passed its most recent emissions test. Krayev assured Johnson that the BMW was in “great condition” and discouraged him from consulting with an independent mechanic because he “had just had the car checked out.” Krayev further assured Johnson that although he did not have the certificate of title to the BMW with him, he would deliver it to Johnson the next day. Based on his conversation with Krayev, Johnson signed the purchase agreement, paid the $10,000 down payment to him, and took possession of the BMW.

Immediately following the sale, Johnson bought new tires and rims for the BMW. Hours later, the BMW broke down, and Johnson had the car towed to his house. The next day, Johnson had an emissions inspection performed on the BMW and had two automobile repair shops inspect the car. The BMW failed the emissions test and was diagnosed with a defective transmission and catalytic converter. Johnson obtained an estimate from one of the repair shops indicating that it would cost between $4,500 and $6,000 for a transmission “overhaul.” Moreover, Krayev failed to deliver the certificate of title to Johnson that day as he had promised.

Johnson called Krayev to discuss the problems with the BMW, but Krayev did not answer the phone or return his voice message. Unable to reach Krayev by phone, Johnson wrote a letter to Krayev and Elite Motor Sports on August 28, 2011 that described the problems with the BMW and requested that Krayev agree to pay for all of the necessary repairs. Johnson’s letter further stated: “If I can’t have all [of] these problems corrected, I want a full refund of my down payment and would like to terminate our contract[.]” Johnson also hired an attorney, who wrote a second letter to Krayev regarding the BMW. Additionally, Johnson tried to stop payment on the check for $10,000 that he had written to Krayev, but the check had already cleared.

Krayev called Johnson in response to the two letters. Johnson “asked him to take the car back” and return his down payment of $10,000 if he would not repair the car, but Krayev refused. Krayev was upset that Johnson had hired an attorney and told him, “This is not Wal-Mart, so you can’t just return things, you know, if they don’t work properly.” Consequently, Johnson continued driving the BMW.

During September 2011, the BMW would drive normally for a few days before breaking down. Johnson had the car towed three times that month and paid for several additional repairs, but not the expensive repairs needed to correct the transmission and catalytic converter. Furthermore, because Krayev never provided him with the certificate of title, Johnson was unable to get a permanent license tag for the car or obtain insurance during this time period. Finally, in late September 2011, Johnson stopped driving the BMW altogether. He made the first monthly payment of $753.61 in October 2011 but then refused to make any additional payments in light of the problems with the car.

Johnson had several conversations with Krayev about the problems with the BMW in an effort to resolve the matter before the instant lawsuit was filed. During these conversations, Johnson offered to return the BMW in exchange for a refund of his money. But Krayev refused to give Johnson his money back while at the same time refusing to pay for any repairs to the car. Instead, Krayev demanded that Johnson unconditionally return the BMW to him because Johnson had stopped making the monthly payments, but Johnson refused to return the car until Krayev refunded his purchase money.

In December 2011, Johnson, who was no longer represented by counsel, filed suit pro se in the Fulton County Magistrate Court against Krayev, alleging in his Statement of Claim that the purchase agreement was “illegal,” that the parties had engaged in a “failed transaction,” and that Krayev had improperly refused to refund his $10,000 down payment. Krayev removed the case to superior court and asserted counterclaims against Johnson for trover, conversion, breach of the purchase agreement, trespass to chattel, unjust enrichment, attorney fees, and punitive damages and asked the court to issue a writ of possession. In August 2012, the superior court issued a writ of possession against Johnson, who then returned the car to Krayev.

In October 2012, Johnson retained new counsel to represent him in the litigation, and the following month, his counsel filed an amended complaint that added Elite Motor Sports as a defendant and added several claims, including claims for breach of implied and express warranties, fraud, negligent misrepresentation, violation of the Fair Business Practices Act (the “FBPA”), attorney fees and expenses under OCGA § 13-6-11, and punitive damages. In December 2012, Johnson’s counsel filed a second amended complaint, formally adding claims for breach of the purchase agreement and, alternatively, for rescission of the agreement based on fraud.

The case subsequently was tried before a jury, and Johnson testified to the events as discussed above. Johnson also introduced evidence reflecting that the July 2011 emissions inspection report provided to him by Krayev was fraudulent. Specifically, Johnson presented evidence that Krayev obtained the report by paying an emissions station to hook up a “surrogate vehicle” to the emissions machine and manually enter the BMW’s vehicle identification number (“VIN”) into the database. As a result, the report showed the surrogate car’s passing emissions results, but contained the BMW’s VIN. The emissions station used by Krayev was later shut down for issuing 44 similar fraudulent reports in little more than a month.

After Johnson presented his case-in-chief, Krayev moved for a directed verdict on, among other things, Johnson’s fraud claim for rescission and his claim for attorney fees and expenses under OCGA § 13-6-11. The trial court denied the motion. The trial court further ruled that the issue of attorney fees would be addressed in two phases: if the jury found in the first phase of the trial that attorney fees should be awarded for bad faith, stubborn litigiousness, or causing unnecessary trouble and expense, the amount of fees would then be determined in a separate phase either by the jury or by the court.

After the trial court denied his motion for a directed verdict, Krayev testified and denied obtaining a fraudulent July 2011 emissions inspection report for the BMW, denied making any misrepresentations to Johnson about the condition of the car, and denied knowing of the major mechanical problems with the BMW before selling the car to Johnson. However, Krayev testified that “he didn’t really have a company” called Elite Motor Sports, which had simply been “created through a website” and was “never an actual dealership or anything of that nature” and had never sold any cars. Krayev also testified that he had owned the BMW personally, that he had kept the certificate of title to the BMW, and that the title in fact had a prior lien on it at the time he sold the car to Johnson. While denying that he knew the July 2011 emissions inspection report was fraudulent, Krayev conceded that he had obtained the report and had driven 40 miles from his house to get it, even though there was another emissions station only 3.3 miles from where he lived. Additionally, despite testifying that he never had a problem with the transmission before the sale date, Krayev testified at another point that he “vaguely” remembered reimbursing someone to have part of the transmission worked on before the BMW was sold to Johnson.

After hearing all of the evidence, the jury found in a special verdict form that Johnson had “rescinded the sales contract for fraud.” The jury awarded Johnson $10,000 in actual damages on his fraud claim for rescission and $12,500 in punitive damages. The jury also found that Krayev had “committed fraudulent concealment during the sale of the vehicle,” had breached the purchase agreement, and had “breached a warranty” to Johnson “because of representations made concerning the vehicle,” but awarded Johnson zero damages on his fraudulent concealment, breach of contract, and breach of warranty claims. The jury found in favor of Krayev on Johnson’s FBPA claim, and found in favor of Johnson on all of Krayev’s counterclaims. Finally, the jury found that Johnson was entitled to attorney fees and expenses because Krayev had acted in bad faith, been stubbornly litigious, and had caused Johnson unnecessary trouble and expense. Later, after conducting an evidentiary hearing on the amount of attorney fees and expenses, the trial court entered a detailed order granting Johnson $63,702.53 in fees. The trial court entered final judgment in favor of Johnson, and this appeal followed.

1. Krayev first contends that the trial court erred in denying his motion for a directed verdict on Johnson’s rescission claim for fraud because the uncontroverted evidence showed that Johnson waived his right to rescind the purchase agreement and instead elected to affirm the contract. According to Krayev, because Johnson did not timely and properly exercise his right to rescind, his fraud claim failed as a matter of law in light of the merger clause contained in the purchase agreement. See generally Novare Group v. Sarif, 290 Ga. 186, 190 (3) (718 SE2d 304) (2011) (“Where a purchaser affirms a contract that contains a merger or disclaimer provision, he is estopped from asserting reliance on a representation that is not part of the contract.”). We are unpersuaded.

OCGA § 13-4-60 provides: “A contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.” But a party “need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible, or when to do so would be unreasonable.” (Footnote omitted.) Mitchell v. Backus Cadillac-Pontiac, 274 Ga. App. 330, 334 (2) (618 SE2d 87) (2005). Furthermore, “the question as to what is a reasonable or proper time within which to rescind a contract depends upon the facts of the particular case and is ordinarily a question for the jury.” (Punctuation and footnote omitted.) Id. at 340 (9). And, more generally, in reviewing the denial of a motion for a directed verdict, we must construe the evidence with every inference in favor of the party that prevailed at trial, and we will affirm the trial court’s ruling if there is any evidence to support it. Lee v. Swain, 291 Ga. 799, 800 (1) (733 SE2d 726) (2012).

Johnson testified that he repeatedly told Krayev that he would return the BMW in exchange for the return of his purchase money, but Krayev refused. Johnson also introduced into evidence the August 28, 2011 letter indicating his desire to return the BMW in exchange for a refund of his down payment. Moreover, Krayev himself testified that he had “a lot of conversations” with Johnson in which Johnson offered to return the BMW in exchange for his money back. In light of this evidence, we conclude that Johnson made a sufficient “offer to restore” to support a claim for rescission pursuant to OCGA § 13-4-60. See Mitchell, 274 Ga. App. at 335 (2) (sufficient evidence to support rescission claim where “there is evidence that the buyer attempted to return the vehicle but the seller refused to accept it”). See also Southern R. Co. v. Lawson, 256 Ga. 798, 800 (1) (b) (353 SE2d 491) (1987) (jury authorized to find in favor of plaintiffs on their claim that release agreement had been timely and properly rescinded, where the plaintiffs offered to return the money that they had received from the defendant, but the defendant refused the money and “clearly indicated it considered the release a valid agreement and would not agree to rescission or cancellation”).

Krayev argues that Johnson’s actions were unreasonable and could not support a finding of rescission because Johnson conditioned his return of the BMW on receiving a refund of the purchase price from Krayev. However, we have held that where, as here, a defrauded buyer “attempted to return the vehicle and demanded a refund of the purchase price” but the seller refused, “the buyer... made a sufficient ‘offer to restore’ within the meaning of OCGA § 13-4-60 in order to claim the remedy of rescission.” Mitchell, 274 Ga. App. at 335 (2). A buyer does not have to return the car if the seller refuses to give the buyer his money back because “[t]he rule requiring return or tender of the goods can be applied only where it is equitable; it was not meant to give the defrauding party an advantage at the expense of the defrauded purchaser.” (Citation and punctuation omitted.) Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589, 591 (1) (411 SE2d 518) (1991). Thus, it was within the province of the jury to find that Johnson made a sufficient offer to restore to assert a claim for rescission based on fraud.

Krayev also argues that Johnson’s use of the car, repairs to the car, and first monthly payment show that he affirmed the purchase agreement as a matter of law. We disagree. The evidence showed that Johnson continued to drive the BMW for approximately one month after the initial purchase, made some repairs to the car in September 2011 other than the expensive repairs needed to correct the transmission and catalytic converter problem, and made the first monthly payment in October 2011 before refusing to make any more monthly payments.

We conclude that Johnson’s limited use of the car, repairs to the car, and first monthly payment did not demand a finding that he had waived his rescission claim and had elected to affirm the purchase agreement, particularly in light of Krayev’s ongoing refusal to accept Johnson’s offer to return the BMW in exchange for his purchase money. Hence, it was for the jury to decide whether Johnson’s actions waived his right to seek the remedy of rescission. See Mitchell, 274 Ga. App. at 340 (9) (concluding that jury should decide whether the buyer had elected to affirm the vehicle purchase agreement by paying $1,000 to install a sunroof on the car after learning of the car’s electrical problems); Lanier Home Center v. Underwood, 252 Ga. App. 745, 746 (2) (557 SE2d 76) (2001) (directed verdict properly denied on rescission claim where buyers used the property while continuing to demand that seller “reverse the transaction”); Neal Pope, Inc. v. Garlington, 245 Ga. App. 49, 53-54 (2) (537 SE2d 179) (2000) (trial court properly denied summary judgment to seller on buyer’s rescission claim, where after seller refused to buy the car back, buyer continued to drive car for a few months until it was repossessed and made a few additional monthly payments before stopping payment altogether). Compare Small v. Savannah Intl. Motors, 275 Ga. App. 12, 13, 14 (2) (619 SE2d 738) (2005) (trial court properly granted summary judgment to seller on buyers’ rescission claim, where buyers were still driving the car and making installment loan payments during the litigation); Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 380 (436 SE2d 94) (1993) (trial court properly granted summary judgment to seller on buyer’s rescission claim, where, among other things, buyer “continued to make monthly payments on the car” and “drove it extensively, even on out-of-town trips, putting almost 40,000 miles on the car” over the course of two years).

Krayev further argues that because Johnson did not expressly plead a claim for rescission until his second amended complaint, he waived his rescission claim as a matter of law. See, e.g., Megel v. Donaldson, 288 Ga. App. 510, 515 (3) (654 SE2d 656) (2007); Holloman v. D.R. Horton, Inc., 241 Ga. App. 141, 146-147 (3) (524 SE2d 790) (1999). Again, we disagree.

Johnson’s original complaint — his pro se Statement of Claim filed in the magistrate court — alleged that the purchase agreement was “illegal,” that the parties had engaged in a “failed transaction,” and that Krayev had improperly refused to refund his $10,000 down payment. While Johnson did not use the legal term “rescission,” the language in his Statement of Claim can reasonably be construed as a layperson’s attempt to assert a claim for rescission of the purchase agreement, especially when viewed in conjunction with the fact that Johnson had repeatedly sought to return the BMW to Krayev in exchange for his purchase money before filing suit, and ultimately amended the complaint to expressly include a rescission claim after he hired counsel. Under these circumstances, we cannot say that Johnson waived his rescission claim as a matter of law. See Conway v. Romarion, 252 Ga. App. 528, 532 (1) (557 SE2d 54) (2001) (plaintiffs did not waive rescission claim although their original complaint did not explicitly assert a claim for rescission, where the fraud claim as stated in the original complaint could be read to “support a claim of rescission,” and the plaintiffs asserted their intent to rescind in a timely fashion before filing their action). Compare Weinstock v. Novare Group, 309 Ga. App. 351, 353-356 (1) (b) (710 SE2d 150) (2011) (plaintiffs waived rescission claim where their original complaint did not include a rescission claim, the plaintiffs did not attempt to rescind the purchase contract before filing suit, and even their complaint as amended did not “formally” or “expressly” assert a rescission claim).

Lastly, relying on the doctrines of res judicata and collateral estoppel, Krayev argues that “[t]he trial court conclusively determined that the [cjontract was enforceable” and was not subject to rescission by issuing the writ of possession requiring Johnson to return the BMW to Krayev in August 2011.

We find no mention of this argument in [Krayev’s] motion[ ] for directed verdict. “A motion for a directed verdict shall state the specific grounds therefor.” OCGA § 9-11-50 (a). A failure to move for a directed verdict on a specific ground precludes review of that decision on appeal, although the appealing party may seek a new trial on this ground. [Krayev,] however, does not seek a new trial on appeal; [he] seeks remand for the entry of judgment in [his] favor on this point. Therefore, this ground of appeal is not properly before us.

Rowe v. Law Offices of Ben C. Brodhead, P.C., 319 Ga. 10, 17 (3) (735 SE2d 39) (2012) (citation omitted).

In any event, “[t]he doctrines of res judicata and collateral estoppel both require an adjudication on the merits by a court of competent jurisdiction in a prior action between the same parties or their privies.” (Emphasis supplied.) Gajaanan Investment, LLC v. Shahil & Sohail Corp., 323 Ga. App. 694, 696 (1) (747 SE2d 713) (2013). But the writ of possession was issued by the trial court in the present action, was interlocutory in nature, and when viewed in the context of the litigation as a whole, was clearly not intended by the court to conclusively determine whether Johnson was entitled to pursue a claim for rescission based on fraud. See generally Hudson v. Godowns, 320 Ga. App. 157, 159 (2) (739 SE2d 462) (2013) (“An order adjudicating fewer than all the claims is not final[ ]... and is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”) (citation and punctuation omitted). Accordingly, Krayev’s final argument is without merit.

For these combined reasons, the trial court committed no error in denying Krayev’s motion for a directed verdict on Johnson’s rescission claim. It was for the jury to decide whether Johnson made an offer to rescind the purchase agreement that was timely and reasonable.

2. Krayev next contends that the trial court erred in denying his motion for a directed verdict on Johnson’s claim for attorney fees and expenses because Johnson failed to present any evidence before the jury in his case-in-chief regarding the amount of fees and expenses that should be awarded to him. As previously noted, the jury found that attorney fees were warranted in its special verdict form, and the trial court then determined the amount of fees after conducting a separate evidentiary hearing on that issue. However, according to Krayev, the jury was required to determine the amount of attorney fees awarded under OCGA § 13-6-11, and thus Johnson’s failure to present any evidence about the amount of fees to the jury in his case-in-chief was fatal to his claim. We disagree.

As an initial matter, the decision whether to bifurcate a trial is within the discretion of the trial court. See Paine v. Nations, 283 Ga. App. 167, 168-169 (1) (641 SE2d 180) (2006). We discern no abuse of discretion in the trial court’s decision to bifurcate the trial and have the amount of attorney fees determined in a separate, second phase of the trial proceedings.

The next issue is whether the trial court was authorized to determine the amount of attorney fees in the second phase rather than have the jury make that determination. We conclude that under the circumstances of this case, the trial court properly decided the issue rather than the jury. In its order addressing attorney fees, the trial court expressly found that during the course of the trial, the parties had agreed to have the trial court rather than the jury determine the amount of fees that would be awarded.

The record as it exists before us does not show that Krayev ever agreed to have the trial court determine the amount of fees. Significantly, however, the trial transcript that was transmitted on appeal includes all of the witness testimony but ends after the defense rests. Thus, the transcript is incomplete in that it contains none of the proceedings that occurred after that point, including any dialogue between the trial court and counsel that may have occurred at that time. In light of this incomplete record, we must presume that the trial court’s factual finding that Krayev agreed at some point during the trial to have the court decide the amount of fees was correct. See Hodge v. Lott, 251 Ga. App. 288, 290 (1) (553 SE2d 652) (2001) (“When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.”) (citations and punctuation omitted). Consequently, we must conclude that Krayev’s appellate argument that the jury had to decide the amount of attorney fees was waived by his agreement to have the trial court decide that issue. See Lamb v. Javed, 303 Ga. App. 278, 280 (1) (692 SE2d 861) (2010) (party who acquiesces to a trial court’s ruling cannot later complain on appeal).

3. Lastly, Krayev contends that the trial court’s award of attorney fees and expenses under OCGA § 13-6-11 was improper because Johnson failed to show which fees were attributable solely to his rescission claim. Krayev notes that the jury found in his favor on Johnson’s FBPA claim; that Johnson’s claims for intentional infliction of emotional distress and his claims against Mani Chilpayen were dismissed; and that the jury awarded zero damages to Johnson on his claims for fraudulent concealment, breach of contract, and breach of warranty. As such, Krayev argues that Johnson prevailed only on his rescission claim and thus was required to exclude all fees and expenses related to the other claims.

The general rule is that an award of attorney fees “must be apportioned to those . . . fees attributable to claims on which the plaintiff prevailed.” (Citations and punctuation omitted.) Fowler’s Holdings, LLLP v. CLP Family Investments, L.P., 318 Ga. App. 73, 75 (2) (732 SE2d 777) (2012). See Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 452 (6) (d) (638 SE2d 879) (2006). But there is an exception to this rule .ignored by Krayev: if the trial court finds that the various “claims are so similar that it would be too difficult to separate the hours spent on each,” the plaintiff is not required to allocate his hours between his successful and unsuccessful claims. Campbell v. Beak, 256 Ga. App. 493, 498 (5) (568 SE2d 801) (2002). See Huggins v. Chapin, 233 Ga. App. 109, 110 (503 SE2d 356) (1998) (indicating that trial court would be entitled to find that the plaintiff’s successful and unsuccessful claims were “intertwined” and then base its attorney fees award “on the interwoven nature of the claims,” but remanding so court could detail how it arrived at its fees ruling). Moreover, we will affirm the trial court’s award of attorney fees if there is any evidence to support it. Vol Repairs II, Inc. v. Knighten, 322 Ga. App. 416, 419 (1) (a) (745 SE2d 673) (2013).

Here, Johnson sought $90,510.17 in attorney fees and expenses, but in a detailed order, the trial court reduced that amount to $63,702.53 after, among other things, omitting time Johnson spent solely on his unsuccessful FBPA claim and his dismissed claims. The trial court further found that Johnson’s time spent on his claims for fraudulent concealment, breach of contract, and breach of warranty, as well as a portion of his time spent on his FBPA claim, “arose out of the same operative facts” and were “inextricably intertwined” with his claim for rescission, such that Johnson was not required to separate his time spent on these claims from his time spent on his rescission claim.

On appeal, Krayev does not focus on the trial court’s order and instead makes the general argument that Johnson was required to separate his time spent on his rescission claim from his other claims. Krayev glosses over the fact that the trial court omitted from its fees award the time that Johnson spent solely on his unsuccessful FBPA claim and his dismissed claims, and fails to point to any specific errors made by the trial court in the manner in which it reduced the amount of fees sought by Johnson. Furthermore, Krayev fails to provide any argument explaining how or why the trial court erred in its finding that Johnson’s time spent on his claims for fraudulent concealment, breach of contract, and breach of warranty, as well as a portion of his time spent on his FBPA claim, was inextricably interwoven with his rescission claim. Under these circumstances, Krayev has failed to show that the trial court committed any reversible error in its award of attorney fees and expenses. See Campbell, 256 Ga. App. at 498 (5); Huggins, 233 Ga. App. at 110. See generally Smith v. Montgomery County Bd. of Tax Assessors, 268 Ga. App. 177, 180 (2), n. 14 (601 SE2d 386) (2004) (appellate courts will not reverse a ruling by the trial court if the appellant fails to make a cogent argument challenging it).

Decided April 21, 2014.

Cohen Pollock Merlin & Small, Elizabeth B. Hodges, for appellants.

Green & Sapp, Daniel J. Moriarty, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       The amended complaint also added a claim for intentional infliction of emotional distress that was later dismissed. Mani Chilpayen, Krayev’s business partner, was added as a defendant but was later voluntarily dismissed from the case.

       We also note that Krayev testified at trial that Johnson refused to allow him to inspect the BMW and implied that Johnson had disabled a GPS device that had been on the car in an effort to hide the car from him. However, the jury was entitled to find that Krayev’s testimony was not credible in light of the other evidence at trial indicating that Krayev had defrauded Johnson. See generally Fuller v. Flash Foods, 298 Ga. App. 217, 219 (1) (679 SE2d 775) (2009) (“Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness.”) (citation, punctuation and footnote omitted); Taylor v. Taylor, 288 Ga. App. 334, 338 (2) (654 SE2d 146) (2007) (“Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact.”) (citations, punctuation and footnote omitted).

       A supplemental transcript later transmitted to this Court includes only a copy of the jury charges read to the jury.

       As noted above, Krayev argues that because the jury awarded Johnson zero damages on his claims for fraudulent concealment, breach of contract, and breach of warranty, Johnson was not a prevailing party on those claims. Given that the trial court found that those claims were inextricably interwoven with Johnson’s rescission claim and Krayev has failed to show any error in that ruling, we need not resolve whether Johnson was a prevailing party on those claims.


author: MCFADDEN, Judge.

text:
    A14A0244.
    SMITH v. THE STATE.
    (757 SE2d 884)
   MCFADDEN, Judge.

Mark Aaron Smith appeals from the trial court’s order revoking his probation. It was revoked on the basis of findings that he had committed two new offenses: possession of illegal drugs and drug-related objects in Walton County and obstruction of an officer in Newton County by running from him. We granted his application for discretionary appeal and now reverse.

Smith contends that the evidence is insufficient to sustain the findings that he committed new offenses and therefore is insufficient to sustain the revocation. Evidence in probation revocation cases is measured, at the trial court level, by the preponderance of the evidence standard. Wright v. State, 297 Ga. App. 813, 816 (678 SE2d 506) (2009). We affirm if there is any evidence to support the trial court’s findings. Mullens v. State, 289 Ga. App. 872 (658 SE2d 421) (2008).

As to the drug offenses the state acknowledges — to its credit — that the evidence established only “presence and spatial proximity’ and therefore was insufficient to support the trial court’s finding that Smith had committed the drug offenses.

As to obstruction, the evidence established that Smith was in a car traveling through a high-crime area. A police officer who noticed the car testified that one of the car’s occupants looked at him “in a nervous manner.” The officer followed the car “in case probable cause developed,” but it did not. The car stopped, and Smith and another man got out and started walking. The officer pulled up near them, and they began to run. The officer pursued Smith’s companion, commanding him to stop, and eventually caught him. The officer later determined that Smith was the other runner.

Our law distinguishes three tiers of encounters between police and citizens: “(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.” In the Interest of J. B., 314 Ga. App. 678, 680 (1) (725 SE2d 810) (2012) (citation and punctuation omitted).

The encounter between the police officer and Smith in this case was a first-tier encounter. “[NJervousness ... is insufficient to justify an investigative [second-tier] detention.” Dominguez v. State, 310 Ga. App. 370, 375 (714 SE2d 25) (2011) (footnote omitted). Likewise, Smith’s

mere presence in an area of suspected crime [was] not enough to support a reasonable, particularized suspicion that [he] was committing a crime. Moreover, [the] officer’s feeling that [Smith was] acting in a suspicious way [did] not amount to a particularized and objective basis for suspecting him of criminal activity.

Ewumi v. State, 315 Ga. App. 656, 661 (1) (727 SE2d 257) (2012) (citations and punctuation omitted). None of Smith’s described activities “are crimes in and of themselves, nor are they enough to make an objective determination that [he] was about to be engaged in criminal activity.” Id. (citation and punctuation omitted).

The defining characteristic of a first-tier encounter is the right of the citizen to terminate that encounter — even by running. See Ewumi, 315 Ga. App. at 658 (1); Galindo-Eriza v. State, 306 Ga. App. 19, 22-23 (1) (701 SE2d 516) (2010). The evidence that Smith ran from a first-tier encounter cannot support a finding that he committed the offense of obstruction. Ewumi, 315 Ga. App. at 662-663 (1) (a). Because the state failed to present evidence that Smith committed a new offense, the trial court erred in revoking his probation. See Wright, 297 Ga. App. at 816-817.

Judgment reversed.

Andrews, P. J., and Ray, J., concur.

Decided April 21, 2014.

Clifford L. Kurlander, for appellant.

Layla H. Zon, District Attorney, Randal M. McGinley, Assistant District Attorney, for appellee.


author: Phipps, Chief Judge.

text:
    A14A0321.
    DORSEY v. THE STATE.
    (757 SE2d 880)
   Phipps, Chief Judge.

Following a jury trial, a Whitfield County jury found Duandre Jamar Dorsey guilty of failure to yield the right of way upon entering a roadway (“failure to yield”), driving under the influence of alcohol to the extent that it was less safe to drive (“DUI less safe”), and causing serious injury by vehicle through the violation of OCGA § 40-6-391. On appeal, Dorsey contends that the evidence was insufficient to support his convictions for these crimes. For the reasons set forth below, we disagree.

Viewed in a light most favorable to the verdict, 6the evidence shows that in the early morning of September 17, 2011, a City of Dalton police officer was in a parking lot attempting to reboot his patrol car’s computer when he heard tires squealing. The officer looked up and saw a gold-colored passenger car pull into traffic and almost collide with an oncoming sports utility vehicle. He followed the car and initiated a traffic stop.

After receiving the license, the officer asked Dorsey to step out of the car. Dorsey denied having consumed any alcohol but submitted to field sobriety tests. On the horizontal gaze nystagmus (“HGN”) test, Dorsey exhibited six of six possible clues. On the nine-step walk and turn test, Dorsey raised his hands away from his body to maintain his balance, stepped off the line several times, missed several heel-to-toe steps, and turned in the wrong direction, after which he lost balance and stepped off the line. During the one-leg stand test, the officer asked Dorsey to keep one foot off the ground approximately six inches with his arms at his side, while counting until told to stop. Dorsey was able to count to three before putting his foot down, started again, and was able to count to five while raising his hands several times before putting his foot down again.

After completing the field sobriety tests, the officer administered an alco-sensor breath test. On the fifth attempt at blowing into the machine, Dorsey delivered a testable sample, and the result was positive for alcohol. The officer could also smell alcohol on Dorsey. After the alco-sensor confirmed the presence of alcohol, the officer informed Dorsey that he was placing him under arrest for DUI.

Dorsey began to struggle as the officer attempted to handcuff him. Dorsey turned around, pushed the officer away, ran to the driver’s side of his car and got inside. The officer followed. According to the officer, “the car took off with . . . both of us in it.” As the car moved forward, the officer’s upper body was in the car’s doorway, and he held onto the door frame while commanding Dorsey to stop. The officer was thrown from the vehicle, and he suffered a broken arm and a dislocated shoulder.

After the officer called for help, other officers soon found Dorsey’s car backed into two parking spaces at an apartment complex. They found open and closed containers of alcoholic beverages in the vehicle. Three days later, acting on a tip, police entered a house and found Dorsey hiding under a large pile of clothes in the laundry room.

A Whitfield County grand jury indicted Dorsey for failure to yield, DUI less safe, reckless driving, escape, aggravated battery upon a peace officer, two counts of giving a false name to a law enforcement officer, two counts of causing serious injury by vehicle, and two counts of obstruction of a law enforcement officer. Following a trial, the jury acquitted Dorsey of aggravated battery upon a peace officer but found him guilty on all other counts.

On appeal, Dorsey contends that the trial court erred in denying his motion for new trial because the evidence was insufficient to support his convictions for failure to yield, DUI less safe, and serious injury by vehicle. In assessing whether the evidence was sufficient to support his convictions, “[w]e neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

1. OCGA § 40-6-73 provides that “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” According to the arresting officer, Dorsey entered Chattanooga Road from the parking lot of a bar and restaurant. The officer testified that as a result Dorsey almost caused a collision in that “[t]he oncoming traffic came close to striking [Dorsey’s] vehicle broadside on the driver’s side door.” Dorsey argues that no accident occurred, there was no video of the event, and the relevant evidence was presented through one officer’s uncorroborated testimony. Nevertheless, with exceptions not applicable here, the testimony of a single witness is sufficient to establish a fact. Accordingly, we find that a rational trier of fact could have found beyond a reasonable doubt that Dorsey was guilty of failure to yield.

2. OCGA § 40-6-391 (a) (1) provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while ... [u]nder the influence of alcohol to the extent that it is less safe for the person to drive.” Dorsey contends that his driving and behavior were not consistent with someone who was under the influence of alcohol.* In this respect, Dorsey argues that once the officer began following him, Dorsey drove appropriately and the officer did not witness any traffic violations. Dorsey also points to evidence that he was initially cooperative with the officer, stood straight and did not sway during the HGN test, did not sway during the one-leg stand test, and followed the officer’s instructions on the walk and turn test, except for turning the wrong way. But given the evidence regarding Dorsey’s manner of driving in entering the roadway, the smell of alcohol on Dorsey’s person, the positive result of the alco-sensor test, Dorsey’s performance on the field sobriety tests, the open containers of alcohol in the vehicle, and Dorsey’s decision to flee from the scene, any rational trier of fact could have found beyond a reasonable doubt that Dorsey was driving under the influence of alcohol to the extent that it was less safe for him to drive.

Decided April 21, 2014.

Kearston M. Gill, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

3. OCGA § 40-6-394 provides, as applicable here, that “[w]ho-ever, without malice, shall cause bodily harm to another ... by rendering a member of his body useless . . . through the violation of Code Section... 40-6-391 shall be guilty of the crime of serious injury by vehicle.” Dorsey does not challenge the sufficiency of the evidence to establish that he caused the officer bodily harm for purposes of the crime. Rather, he asserts that the evidence was not sufficient to show that he violated OCGA § 40-6-391, as required by the statute. However, as discussed supra, the evidence was sufficient to show that Dorsey was guilty of DUI less safe. Accordingly, we find that any rational trier of fact could have found Dorsey guilty beyond a reasonable doubt of serious injury by vehicle.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

       OCGA § 40-6-73.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-394.

       Dorsey was also found guilty of reckless driving, escape, serious injury by vehicle through violation of OCGA § 40-6-390, two counts of giving a false name to a law enforcement officer, and two counts of obstruction of a law enforcement officer. He does not challenge the sufficiency of the evidence to support his convictions on these counts.

       See Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007).

       The officer testified that on previous attempts Dorsey had either not blown hard enough into the tube or had blown too hard.

       For purposes of sentencing, the trial court merged Dorsey’s conviction for Count 5, causing serious injury by vehicle through the violation of OCGA § 40-6-390 (reckless driving) into Count 4, causing serious injury by vehicle through the violation of OCGA § 40-6-391 (DUI). See OCGA § 40-6-394. The trial court also merged Count 2, DUI less safe, into Count 4.

        Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010) (citations and punctuation omitted).

       See former OCGA § 24-4-8 (2012). Dorsey was tried before January 1, 2013, the effective date of the new Evidence Code.

       See, e.g., Cecil v. State, 263 Ga. App. 48, 50 (2) (587 SE2d 197) (2003) (finding that the testimony of one witness was sufficient to support appellant’s conviction).

       Although the trial court merged Dorsey’s conviction for DUI less safe into his conviction for serious injury by vehicle, “proof that [Dorsey] was guilty of DUI under OCGA § 40-6-391 is a required element for convicting him of serious injury by vehicle under OCGA § 40-6-394.” Garrett v. State, 306 Ga. App. 429, 431 (702 SE2d 470) (2010). Compare Nelson v. State, 277 Ga. App. 92, 96 (1) (b) (625 SE2d 465) (2005) (declining to address the sufficiency of the evidence to convict on a count which the trial court merged into another count for purposes of sentencing).

       Dorsey also suggests that “flashlights” can interfere with the HGN test, but the testimony to which he refers shows that, according to the arresting officer, “[t]he flashing lights can interfere with my ability to detect the bouncing of the eyes,” and “[t]hat’s why I shut them off.”

       See, e.g., Hinton v. State, 319 Ga. App. 673, 675-676 (738 SE2d 120) (2013) (evidence sufficient to support appellant’s conviction for DUI less safe included sergeant’s testimony that appellant was speeding and driving onto the sidewalk, had a smell of alcohol on her breath, was belligerent, and failed the HGN test); Corbin v. State, 305 Ga. App. 768, 769-770 (1) (700 SE2d 868) (2010) (evidence supporting conviction for DUI less safe included defendant’s erratic driving, his odd and belligerent behavior, the odor of alcohol on his breath and his person, and an open container found in his truck); Merritt v. State, 288 Ga. App. 89, 94 (1) (653 SE2d 368) (2007) (the jury was entitled to consider defendant’s flight from the scene as evidence that it was less safe for him to drive); Lee v. State, 280 Ga. App. 706, 707 (634 SE2d 837) (2006) (evidence supporting DUI less safe conviction included driver’s speeding, his odd behavior, the odor of alcohol on his breath, and the two open containers in his vehicle).


author: Miller, Judge.

text:
    A12A1149.
    HUDSON v. THE STATE.
    (758 SE2d 133)
    Decided April 23, 2014.

      Mark A. Begnaud, for appellant.

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

In State v. Hudson, 293 Ga. 656 (748 SE2d 910) (2013), the Supreme Court of Georgia reversed the judgment of this Court in Hudson v. State, 318 Ga. App. 54 (733 SE2d 360) (2012). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Ray and Branch, JJ., concur.