author: MERCIER, Judge.

text:
    A16A1441.
    RICHARDS v. ROBINSON.
    (792 SE2d 442)
   MERCIER, Judge.

David Richards, the plaintiff in the underlying case, appeals the grant of summary judgment to the defendant/appellee, Errol Robinson. Richards sued Robinson (and other parties not involved in this appeal) in the State Court of Gwinnett County, asserting a claim for negligence as a result of a traffic accident in which the school bus being driven by Robinson collided with the vehicle being driven by Richards. On appeal, Richards argues that the trial court erred by (1) finding that Robinson demonstrated the absence of evidence to support an essential element of Richards’s claim; (2) finding that Robinson presented evidence that negated an essential element of Richards’s claim; (3) finding that vehicles traveling in Robinson’s lane could lawfully proceed straight through the intersection in question rather than turn right; (4) finding that Richards could not have relied on Robinson’s lane position and turn signal; (5) reaching conclusions based on a particularly narrow and selective reading of the depositions and a strict construction of the available evidence against Richards as the nonmoving party; and (6) not giving Richards notice or an opportunity to respond to issues raised sua sponte by the trial court. For the reasons that follow, we reverse the trial court’s order.

“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” McKissick v. Giroux, 272 Ga. App. 499 (612 SE2d 827) (2005) (citation and footnote omitted). See OCGA § 9-11-56 (c). “To prevail at summary judgment . . . , the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “[Sjummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Id. at 495 (4).

To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

Booth v. Quality Carriers, 276 Ga. App. 406, 408 (623 SE2d 244) (2005) (citation and footnote omitted).

Viewed in the light most favorable to Richards, the record shows the following. On the date in question, Richards was driving his vehicle westbound on Five Forks Trickum Road, approaching the intersection with Ronald Reagan Parkway. He intended to turn left onto southbound Ronald Reagan Parkway. Before turning he did not see any oncoming traffic, but after he began turning left, he saw a school bus (driven by Robinson) coming over a hill toward him, driving eastbound on Five Forks Trickum Road.

The school bus was in the far right eastbound lane, which was marked “right turn only.” That lane contained two right-hand turns; the first (the “first right turn”) led to southbound Ronald Reagan Parkway, and the second (the “second right turn”) led to northbound Ronald Reagan Parkway. That lane, in which the bus was traveling, was bordered on the left by a solid white line before its intersection with Ronald Reagan Parkway at the first right turn. Between that intersection and the next intersection at the second right turn, the lane was bordered on the left by intermittent white lines. Richards deposed that he was unsure whether the traffic signal governing his left-turn lane was a green arrow or a circular green light, but knew that his signal was green; according to Robinson, the traffic signal governing the lane in which the school bus was traveling was also green. It is undisputed that a sign located before the first right turn indicated that vehicles in the right lane must turn right, and that there was also a directional sign located before the first right turn depicting the various lanes at the intersection.

Robinson was already in the far right lane before the first right turn, and his right turn indicator was blinking. However, he intended to turn at the second right turn and therefore go straight through the intersection past the first right turn. Richards assumed that Robinson intended to turn right at the first right turn, where Richards was starting to turn left. The ramps from their opposing directions formed a “Y” as they merged onto southbound Ronald Reagan Parkway, and Richards paused as he was turning left to allow the school bus to go ahead of him in the “Y” onto Ronald Reagan Parkway. Robinson instead went straight, and he saw Richards’s vehicle in front of him when he was approximately 20 feet away Robinson tried to stop the school bus, but the bus struck Richards’s vehicle. Prior to the collision Robinson was traveling approximately 30 miles per hour, and the speed limit was 45 miles per hour. None of the facts listed above are disputed.

The parties dispute, among other things, whether drivers in the far right lane before the first right turn were required to turn at the first right turn, or were permitted to continue straight through the intersection in that lane and then turn right at the second right turn, and whether Robinson’s use of his right turn signal before the first right turn when he was traveling straight through the intersection contributed to the accident. Richards alleged in his complaint that Robinson was negligent when he disregarded traffic signs and devices, failed to maintain a proper look-out, failed to exercise due care, and traveled too fast for conditions. Robinson moved for summary judgment, arguing that there was an absence of evidence to create a triable issue as to the elements of a duty on his part and a breach of that duty. The trial court granted summary judgment to Robinson, finding that he demonstrated that there was no genuine issue of material fact as to any essential element of Richards’s claim, and that Richards failed to point to specific evidence giving rise to a triable issue. The trial court further found that even if Robinson was negligent in engaging his turn signal too soon, it could not have contributed to the collision.

We agree with Richards that the trial court erred in finding that Robinson demonstrated the absence of evidence to support an essential element of Richards’s claim, in finding that Robinson presented evidence that negated an essential element of Richards’s claim, and in finding as a matter of law that a vehicle traveling in Robinson’s lane could lawfully proceed straight through the intersection rather than turn right. Robinson argued to the trial court, and argues to this Court, that he was permitted to turn right at either the first right turn or the second right turn, and in support of this argument he has argued that the road signs permitted drivers to turn right at the first right turn or the second right turn; that the word “only” in the crosswalk at the first right turn did not indicate that drivers were required to turn right at the first right turn, but instead indicated that drivers must turn right at either of the right turns, because it was part of a larger pattern applicable to the lane in question, and it was located beyond the first right turn; that the solid white line on the left border of the far right lane prohibited drivers from changing lanes, rather than requiring them to make the first right turn, pursuant to OCGA § 40-6-48 (5); and that contrary to Richards’s assertion, there were no “hatch marks” in the crosswalk that would have required drivers to turn at the first right turn. Robinson has also argued that pursuant to OCGA § 40-6-21 (a) (1) (A), because the traffic signal applicable to his lane was green, he was permitted to travel straight through the intersection and had the right-of-way to do so. However, Robinson’s arguments are not sufficient to pierce Richards’s pleadings.

Piercing a plaintiff’s pleadings on a motion for summary judgment, “i.e., demonstrating that plaintiff will be unable to prevail at trial, even when all doubts are resolved in favor of the plaintiff, because there is no issue of material fact as to at least one essential element of the plaintiff’s prima facie case,” can be accomplished by one of two means. Garrett v. Nationsbank, N.A. (South), 228 Ga. App. 114, 115 (491 SE2d 158) (1997). The defendant may

(1)... [present] evidence which negates an essential element of plaintiff’s claim, i.e., affirmatively disproving the element with evidence which makes it impossible for the plaintiff to prove the element at trial, or (2) . . . [show] an absence of evidence to support the plaintiff’s case as to an essential element. However, a defendant may not prevail simply by presenting contradictory evidence, as such evidence serves only to create an issue for jury resolution.

Id. (citations and punctuation omitted). See also Davis v. Piedmont Hosp., 222 Ga. App. 97 (473 SE2d 531) (1996).

Here, Richards has presented evidence as to the elements of breach and duty, including, most notably, the existence of a road sign before the first right turn indicating that vehicles in the right lane must turn right. While Robinson presented his interpretation of the signs and the markings on the roadway, Richards argues that those signs and markings give rise to other reasonable interpretations as well. Specifically, he argues that the directional sign relied on by Robinson merely indicates in which direction each lane leads; that drivers who intend to turn onto Ronald Reagan Parkway at the second right turn must enter the right turn lane after the intersection at the first right turn; that the intermittently-bordered area of the lane beyond the first right turn is the appropriate area to enter the lane to turn at the second right turn; and that the word “only” in the crosswalk at the first right turn indicates that drivers must turn right at that intersection.

Decided October 17, 2016

Reconsideration denied December 1, 2016.

Kenneth J. Rajotte, for appellant.

Thompson, Sweeny, Kinsinger & Pereira, Stephen D. Pereira, W. Creighton Lancaster, for appellee.

Robinson has pointed to no law demanding judgment in his favor as to duty, and has merely presented contradictory evidence, which gives rise to a jury issue. There is sufficient evidence such that it is not impossible for Richards to prove Robinson’s duty and breach of that duty at trial, and Robinson has not shown an absence of evidence to support Richards’s case as to these elements. See Garrett, supra. Because there is a triable issue as to those elements, and Robinson has not shown that he is entitled to judgment as a matter of law, the grant of summary judgment to Robinson was error. See Lau’s Corp., supra.

The trial court’s order granting summary judgment to Robinson in this case is therefore reversed. Because we reverse on this basis, we need not address Richards’s remaining enumerations of error.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A16A1285.
    CHRYSLER GROUP, LLC v. WALDEN et al.
    (792 SE2d 754)
   McFADDEN, Judge.

This case involves a tragic vehicle collision that resulted in the death of four-year-old Remington Walden. The collision occurred when the child was a passenger in the back seat of a 1999 Chrysler Jeep Grand Cherokee. Bryan Harrell, a co-defendant who has not appealed, was driving a pickup truck and struck the back of the Grand Cherokee. The gas tank of the Grand Cherokee was punctured in the wreck, and the vehicle caught fire. Remington Walden died in the fire.

In 2012, Remington Walden’s parents filed this action against Chrysler Group, LLC n/k/a “FCAUS LLC” and Harrell. They alleged that Chrysler acted with a reckless or wanton disregard for human life in the design or sale of the Grand Cherokee, and that Chrysler breached a duty to warn of the hazard associated with the use of the vehicle. After a nine-day trial, the jury returned a verdict in favor of the plaintiffs, awarding $120 million in damages for wrongful death and $30 million in damages for pain and suffering. The jury found Harrell to be one percent at fault and Chrysler to be ninety-nine percent at fault. Chrysler filed a motion for new trial, which the trial court denied, conditioned on the plaintiffs’ acceptance of a remittitur of the wrongful death verdict to $30 million and of the pain and suffering verdict to $10 million. The plaintiffs accepted the remitti-tur, and the trial court entered judgment accordingly.

Chrysler now appeals. It argues that the trial court erred by denying its directed verdict motions, but we find that the trial court properly submitted the plaintiffs’ claims to the jury for resolution. Chrysler argues that the trial court erred by allowing the plaintiffs to introduce evidence of 17 other rear-end collisions involving Jeep vehicles because the plaintiffs failed to show that the collisions were substantially similar to the collision at issue, but Chrysler has not shown that the trial court abused his discretion in admitting that evidence. Chrysler argues that the trial court erred by admitting evidence of incidents involving the Ford Pinto without determining that the incidents were substantially similar to the incident here, but the references to Pintos were general references, not evidence of particular incidents.

Chrysler argues that the trial court erred in admitting certain evidence and allowing certain argument. Specifically, Chrysler asserts that the trial court erred by allowing the plaintiffs to question a witness about the compensation paid to its chief executive officer, also a witness, but evidence of a witness’s relationship to a party is always admissible. Chrysler argues that the trial court erred by allowing plaintiffs’ counsel to argue in closing that Chrysler should be imprisoned, but Chrysler has not shown an abuse of discretion.

Chrysler argues that the trial court erred by allowing the plaintiffs to question witnesses about a recall request letter issued by a division of the National Highway Traffic Safety Administration (“NHTSA”) during an investigation of the fuel tanks in Jeep SUVs. It argues that the recall request letter was inadmissible hearsay because it included only tentative findings, but the trial court did not abuse his discretion in admitting the recall request letter.

Conversely, Chrysler argues that the trial court erred by excluding the testimony of two of its experts, but Chrysler challenges only one of the several grounds upon which the trial court excluded the testimony, and we will affirm a trial court’s ruling that is right for any reason.

Finally, Chrysler raises challenges based on the size of the verdict and the judgment entered on the remitted verdict. It argues that the size of the jury’s verdict demonstrates that the verdict was motivated by passion and prejudice and a desire to punish and deter, although the plaintiffs did not seek punitive damages, but we find that Chrysler has failed to show the verdict resulted from prejudice. Chrysler also argues that the trial court failed to sufficiently remit the damages awards, but we find that the trial court did not err. We therefore affirm.

1. Denial of directed verdict motions.

Chrysler argues that the trial court erred by denying its directed verdict motions on the plaintiffs’ claims that Chrysler acted with a reckless or wanton disregard for human life in the design or sale of the Grand Cherokee and that Chrysler breached a duty to warn of the hazard associated with the use of the vehicle. We disagree.

The plaintiffs filed their action beyond the applicable ten-year statute of repose set forth in OCGA § 51-1-11 (b) (2), which therefore controls the claims available to them. The statute of repose excepts certain claims of wanton and reckless conduct from its application and does not apply to failure to warn claims. OCGA § 51-1-11 (c). As noted, the plaintiffs asserted a claim of reckless or wanton conduct and a claim of failure to warn. Both claims were founded on the assertion that Chrysler knew that the location of the fuel tank in the 1999 Grand Cherokee was dangerous, yet it consciously and deliberately continued to manufacture and sell the vehicle with the gas tank in that location, and it failed to warn the public of the danger. Chrysler moved for directed verdict at the close of the plaintiffs’ case and at the close of the evidence. The court denied the motions, and Chrysler enumerates as error the denial of the motions.

A motion for directed verdict should not be granted where there exists even slight material issues of fact, because the trial court is substituting its judgment for the jury’s; only when there is an absence of evidence or when no evidence supports an essential element of the case should a directed verdict be granted, because the trial judge takes the determination of the facts from the jury.

Teklewold v. Taylor, 271 Ga. App. 664, 665 (610 SE2d 617) (2005) (citation omitted). “The appellate review standard of a trial court’s denial of a directed verdict motion is the any evidence standard. In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion.” Key Safety Systems v. Bruner, 334 Ga. App. 717, 717-718 (780 SE2d 389) (2015) (citation omitted). See also OCGA § 9-11-50 (a).

Viewed in this light, the record shows that on the afternoon of March 6,2012, Emily Newsome was driving her four-year-old nephew, Remington Walden, to a tennis lesson in her father’s 1999 Jeep Grand Cherokee, which was manufactured February 2, 1999. The child was seated in the back of the vehicle. As Newsome was waiting to make a left-hand turn, defendant Bryan Harrell, who was driving a Dodge Dakota pickup truck, collided with the back of the Grand Cherokee. The fuel tank of the Grand Cherokee, which was located behind the rear axle, was ruptured in the collision. Gasoline poured from the tank and ignited. The Grand Cherokee was engulfed in flames. Newsome was able to climb out of the driver’s side window of the Grand Cherokee, but Remington Walden could not escape, and New-some could not get him out. The child was alive and conscious while the Grand Cherokee was on fire and may have lived up to a minute with flames in contact with his body He died from injuries caused by the fire. The plaintiffs presented evidence that there is no more painful way to die.

The plaintiffs presented the testimony of Judson Estes, the Chrysler employee who managed the crash test program for Grand Cherokees starting with the 1996-1997 model year. Estes testified that in 1998, Chrysler knew that the gas tank in the 1999 Grand Cherokee was vulnerable and would be crushed in rear impacts.

Michael Teets, a senior engineer and specialist in fuel systems for Chrysler, testified that, as a rule, there should be no “crush” in the tank area. He acknowledged that design guidelines for fuel supply, written before he was hired at Chrysler in 1981, provided that the fuel tank “should be located in a manner that avoids known impact areas,” where the potential of the tank being crushed in a collision is far greater. At some point, Chrysler convened a group of employees, called the “Rear Impact Tech Club,” to review old fuel system guidelines and methodologies. Teets was a member of the group and, in December 2001, informed the group that there “should be no crush in tank area.”

The plaintiffs presented other evidence that Chrysler knew the benefits of locating the gas tank “midship,” or between the front and rear axles. They introduced marketing brochures for other Chrysler vehicles, which, the plaintiffs’ expert testified, demonstrated an extensive history of Chrysler’s knowledge of protection from rear impact that comes from placing gas tanks midship. These included a brochure for a 1996 Dodge Caravan, a 1998 Dodge Durango SUV, and a 1999 Ram Cargo Van.

The plaintiffs also presented evidence of 17 other collisions involving Jeep vehicles with fuel tanks located behind the rear axle, in which the Jeep vehicle was rear-ended and fuel escaped from the tank. They showed that Chrysler had notice of these other incidents before the collision at issue and had notice of one of them prior to the sale of the Grand Cherokee involved in this case. (Although Chrysler challenges the admission of this evidence, it has failed to show that the trial court abused his discretion in admitting it, as detailed below in Division 2.)

The plaintiffs presented evidence that had Chrysler located the gas tank between the front and rear axles, something Chrysler stipulated that it could have done, then the tank would not have ruptured because the only impact was behind the rear axle. Chrysler also stipulated that had gas not leaked from the tank, there would have been no fire.

(a) Denial of directed verdict on claim that Chrysler acted with a reckless or wan ton disregard for human life in the design or sale of the vehicle.

Chrysler argues that this evidence is insufficient to sustain plaintiffs’ claim that Chrysler acted with a reckless or wanton disregard for human life in the design or sale of the Grand Cherokee. We have defined a reckless act as an act that is

intended by the actor, [although] the actor does not intend to cause the harm which results from it. It is enough that he realize or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct may prove harmless.

Arrington v. Trammell, 83 Ga. App. 107, 112 (62 SE2d 451) (1950) (citation omitted). We have defined wanton conduct as conduct that “is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent.” Chrysler Corp. v. Batten, 264 Ga. 723, 726 (3) (450 SE2d 208) (1994) (citations and punctuation omitted).

First, Chrysler argues that it was entitled to a directed verdict on the claim that it acted with a reckless or wanton disregard for human life because the Grand Cherokee’s fuel tank design fully complied with Federal Motor Vehicle Safety Standards. Such compliance “is a factor for the jury to consider in deciding the question of reasonableness,” but it does not render Chrysler immune from liability. Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574, 577 (481 SE2d 518) (1997). “[A] manufacturer’s proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively its liability for its design of allegedly defective products.” Banks v. ICI Americas, 264 Ga. 732, 736 (1), n. 6 (450 SE2d 671) (1994) (citations omitted). Therefore, simply because Chrysler complied with the federal standard did not entitle it to a directed verdict.

Next, Chrysler argues that it was entitled to a directed verdict on the claim that it acted with a reckless or wanton disregard for human life because there were 27 million vehicles being driven on the road with rear-mounted fuel tanks at the time of the NHTSA’s investigation into Jeep vehicles. This fact, however, was evidence for the jury to consider; it does not mean that the plaintiffs submitted no evidence to support their claim. See Banks, 264 Ga. at 736 (1), n. 6 (compliance with industry-wide practices does not conclusively eliminate manufacturer’s liability).

Chrysler also argues that it was entitled to a directed verdict on the claim that it acted with a reckless or wanton disregard for human life because only one of the plaintiffs’ similar incidents occurred before the sale of the Grand Cherokee. The plaintiffs, however, introduced other evidence that before this Grand Cherokee was manufactured and sold, Chrysler knew that locating fuel tanks midship provided safety benefits, that it was possible to locate the fuel tank in the 1999 Grand Cherokee midship, and, most significantly, that Chrysler knew that gas tanks in 1999 Grand Cherokees were vulnerable and would be crushed in rear impacts.

From this evidence, a jury might legitimately conclude that “from facts which [Chrysler knew], [it] should [have] realize[d] that there [was] a strong probability that harm may result, even though [it] hope[d] or even expect[ed] that [its] conduct may prove harmless.” Arrington, 83 Ga. App. at 112 (citations omitted). Given our any evidence standard of review and our duty to construe the evidence most favorably to the plaintiffs, we cannot say that the trial court erred in denying Chrysler’s motion for directed verdict on this claim. See Waldo v. Moore, 241 Ga. App. 797, 799 (527 SE2d 887) (2000) (plurality opinion) (defendant was not entitled to a directed verdict because evidence authorized jury to find defendant’s conduct was wilful and wanton).

(b) Denial of directed verdict on claim that Chrysler breached the duty to warn.

Chrysler argues that the trial court erred by denying its motion for directed verdict on the plaintiffs’ failure-to-warn claim because the plaintiffs did not introduce evidence that they would have seen a warning had one been provided, or that the owner of the vehicle (Remington Walden’s grandfather) or the driver (Remington Walden’s aunt) would have read or communicated any warning to the plaintiffs. Thus, Chrysler argues, the plaintiffs have failed to establish proximate causation.

A failure to read a warning will defeat a “claim grounded upon an inadequacy of warning by reason of the insufficient, inaccurate misleading nature of the content of the warning.” Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 76 (1) (460 SE2d 532) (1995) (citation omitted; emphasis in original). This is because even if the warning had been adequate, the plaintiff still would have been injured because in not reading the warning, he would not have benefitted from its adequacy; his failure to read would not have been the cause of his injury. See Camden Oil Co. v. Jackson, 270 Ga. App. 837, 840 (1) (a) (609 SE2d 356) (2004). But here, there was no warning, so there was nothing for the plaintiffs or the owner or driver of the Grand Cherokee to read. Whether a plaintiff has shown

proximate cause resulting from a complete lack of warning . . . [is] peculiarly [a] question[ ] for the jury . . . The defendant cites to no prior precedent requiring a plaintiff alleging a failure to warn claim [involving a complete lack of warning] to provide evidence [that he would have seen it] had an adequate warning been included, and we decline to adopt such a requirement at this time.

Key Safety Systems, 334 Ga. App. at 720 (1) (citation and punctuation omitted) (rejecting argument that plaintiff failed to prove proximate causation because he did not testify that he would have purchased a different car had an adequate warning been provided). See also Bullock v. Volkswagen Group of America, 107 FSupp.3d 1305, 1316 (II) (C) (2) (M.D. Ga. 2015) (distinguishing failure-to-warn, no-warning claims from failure-to-warn, inadequate warning claims and failure-to-adequately-communicate-warning claims).

2. Admission of evidence of other similar incidents.

To prove that Chrysler knew of the danger of the fuel tank’s location, the plaintiffs introduced evidence of 17 other incidents. Chrysler claims the admission of this evidence was error. We disagree.

The plaintiffs’ claims were founded on the assertion that Chrysler knew that the location of the fuel tank in the 1999 Grand Cherokee was dangerous, yet it consciously and deliberately continued to manufacture the vehicle with the gas tank in that location, and it failed to warn the public of the danger. To prove that knowledge, the plaintiffs introduced, among other things, evidence of 17 rear-end collisions involving Jeep vehicles with gasoline tanks located at the rear of the vehicle and gasoline leakage. Chrysler argues that the trial court erred in admitting evidence of these 17 collisions because they were not substantially similar to the collision at issue.

“In product liability actions, evidence of other incidents involving the product is admissible [ ] and relevant to the issue [ ] of notice of a defect. . . provided there is a showing of substantial similarity” Ray v. Ford Motor Co., 237 Ga. App. 316, 317 (1) (514 SE2d 227) (1999) (citations omitted). To show substantial similarity, the plaintiff must come forward with evidence that the other “incidents share a common design, common defect, and common causation with the alleged design defect at issue.” Colp v. Ford Motor Co., 279 Ga. App. 280, 284 (2) (630 SE2d 886) (2006). “Absent clear abuse, the trial courts’ exercise of discretion in admitting or refusing to admit such evidence is entitledto deference[.]” Cooper Tire & Rubber Co. v. Crosby, 273 Ga. 454, 457 (2) (543 SE2d 21) (2001).

Chrysler argues that the trial court erred in finding common design and common causation. As for common design, Chrysler argues that the trial court erred because 13 of the other incidents involved different, Jeep models with different fuel-system and structural designs than the 1999 Jeep Grand Cherokee. (Chrysler does not challenge the finding of common design for the remaining four incidents.)

The plaintiffs presented evidence that each of those thirteen incidents involved a Jeep SUV with the gas tank located approximately eleven inches from the rear of the vehicle and hanging down about six inches. The plaintiffs cited as evidence of these measurements the “Subject Vehicle Measurements Data” that Chrysler submitted to the NHTSA during its investigation of the gas tanks. They also pointed out that the NHTSA investigated all of these rear-tank Jeep models in a single defect investigation and defined the defect as “the placement of the fuel tanks in the position behind the axle and how they were positioned, including their height above the roadway.” Further, the plaintiffs cited the deposition testimony of Chrysler chief executive Sergio Marchionne, who admitted that tank-related fires with one of the Jeep models would prompt Chrysler to investigate the others. Finally, they relied on the testimony of their expert witness in fuel system design.

Simply because the other incidents involved different Jeep models does not make them inadmissible. See Ford Motor Co. v. Reese, 300 Ga. App. 82, 90 (3) (684 SE2d 279) (2009) (affirming admission of evidence of other similar incidents involving unspecified Ford vehicles with seatbacks of “the same design as the [Ford] Tempo seatback at issue here”). The question is whether there is a common design, Colp, 279 Ga. App. at 284 (2), regardless of the products’ names. In light of the plaintiffs’ evidence, we cannot say that the trial court abused his discretion in ruling that the vehicles involved in the other incidents and the vehicle involved in this incident had a common design.

As for common causation, the plaintiffs presented the testimony of their expert that all the other incidents and the incident at issue involved common causation: a rear impact to the involved Jeep caused gasoline leakage. We have affirmed a trial court’s decision to admit evidence of other similar incidents in which the causation was “a rear impact collision[ ] and a seatback that deformed in the accident.” Reese, 300 Ga. App. at 90 (3). Chrysler has not shown that the trial court abused his discretion in finding common causation.

3. References to Pinto.

Chrysler argues that the trial court erred by admitting evidence “concerning fuel-fed fires, deaths, and injuries involving the 19708-era Ford Pinto” without first conducting the substantial similarity analysis described in Division 2. Chrysler has not shown that the trial court erred, however, because it has not pointed to anywhere in the transcript where the trial court admitted other-incident evidence involving the Pinto. The references to the Ford Pinto were general references, not evidence of specific, discrete accidents involving the Ford Pinto. Compare Volkswagen of America v. Gentry, 254 Ga. App. 888, 895-896 (8) (564 SE2d 733) (2002). Two of Chrysler’s record citations regarding this issue are to plaintiffs’ opening statement and two are to plaintiffs’ closing argument. And the trial court properly instructed the jury that counsels’ statements are not evidence. One citation is to plaintiffs’ counsel asking Marchionne if he could disagree with a statement in a letter from the NHTSA (the recall request letter discussed in Division 7 below) that “after Pinto, manufacturers began to adopt designs in which fuel tanks were located in less vulnerable locations than behind the rear axle.” Chrysler’s final record citation on this issue is to plaintiffs’ counsels’ questions to a Chrysler senior engineer and fuel system specialist about whether automobile manufacturers have known since the Pinto that rear gas tanks were a bad idea. Chrysler mischaracterizes the references to Pintos as “other incidents” evidence and has failed to demonstrate error.

4. The exclusion of Chrysler’s expert evidence.

Chrysler argues that the trial court erred in excluding the testimony and statistical analyses of two experts which were relevant to show the overall safety of the challenged design to the overall safety of available alternative designs. It argues that the trial court erred by excluding the evidence for lack of substantial similarity, because the substantial similarity rule does not apply to this kind of evidence. But that was only one of the reasons the trial court excluded the evidence. He also found that the evidence was irrelevant because it concerned the overall safety of various vehicles, but the plaintiffs’ claims related only to the safety of the fuel system design in rear impacts. He further found that the prejudice and confusion from the proposed testimony outweighed its probative value; and that neither expert satisfied the requirements of OCGA § 24-7-702 (b) for the admission of expert testimony Chrysler does not challenge these other reasons for excluding the evidence. We therefore cannot say that the trial court erred. See DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 57 (12) (668 SE2d 737) (2008) (pretermitting whether trial court erred in excluding expert testimony on one ground, but affirming its exclusion on an alternate ground raised below); Sumter County v. Pritchett, 125 Ga. App. 222, 227 (3) (186 SE2d 798) (1971) (trial court’s decision to exclude evidence will be affirmed if it is right for any reason).

5. CEO’s compensation.

Chrysler argues that the trial court erred by admitting evidence of its CEO Marchionne’s compensation from Chrysler and then allowing the plaintiffs to argue to the jurors that they should use this information as the basis for calculating the amount of a wrongful death award. The evidence was admissible to show bias, and the trial court did not abuse his discretion in admitting it.

During cross-examination, plaintiffs’ counsel questioned Mark Chernoby, Chrysler’s chief operating officer of product development, head of global quality, and head of portfolio planning, about Mar-chionne’s compensation package. Chernoby testified that in 2014, Marchionne received a $30 million “cash award,” received more than $6.4 million in salary and incentive pay, which usually is based on company performance, exercised stock options worth $16.92 million, and received other benefits, including personal use of an aircraft, the use of a company car and driver, personal and home security, and medical insurance. Chrysler argues that the evidence of the financial circumstances of a party are always inadmissible, that Marchionne’s income was irrelevant to any issue, and that the evidence was prejudicial.

First, as Chrysler conceded at trial, Marchionne was not a party, so the rule that the financial circumstances of a party are generally inadmissible does not apply. See generally Bailey v. Edmundson, 280 Ga. 528, 534 (6) (630 SE2d 396) (2006) (“The general rule is that evidence of the wealth or worldly circumstances of a party litigant is never admissible, except in those cases where position or wealth is necessarily involved.”) (citation and punctuation omitted).

Second, a jury could find that Marchionne’s compensation package made the existence of bias in favor of Chrysler more probable. Thus evidence of the compensation package was relevant to support that inference. Under OCGA § 24-6-622, “[t]he state of a witness’s feelings towards the parties and the witness’s relationship to the parties may always be proved for the consideration of the jury.” (Emphasis supplied.)

Bias is a term used in the “common law of evidence” to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony

United States v. Abel, 469 U. S. 45, 52 (105 SCt 465, 83 LE2d 450) (1984). “The intent or motive of a witness is a legitimate subject of inquiry, and the fact that a witness, in his connection with any pending litigation, is influenced by financial considerations may affect his credit and diminish the weight of his testimony” Lloyd v. State, 40 Ga. App. 230, 231 (149 SE 174) (1929) (citations and punctuation omitted). “The jury could consider whether [Marchionne] had an interest in providing testimony favorable to his employer that insulated it from liability . . . McNeely v. Wal-Mart Stores, 246 Ga. App. 852, 854 (b) (542 SE2d 575) (2000) (citation omitted). See also BankAtlantic v. Blythe Eastman Paine Webber, 955 F2d 1467, 1474-1475 (B) (3) (11th Cir. 1992) (witness who was the chairman of appellant bank had a financial interest in the bank, and thus a stake in the outcome of the litigation, so court did not abuse discretion in admitting evidence of witness’s high salary over objection that it was irrelevant and highly prejudicial).

Finally, any “concerns regarding prejudice in this instance must yield to the statutory mandate of OCGA § [24-6-622]: ‘The state of a witness’s feelings towards the parties and his relationship to them may always be proved for the consideration of the jury.’ ” Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 593 (5) (452 SE2d 159) (1994) (emphasis in original). We cannot say that the trial court abused his discretion in admitting evidence of Marchionne’s compensation.

Chrysler argues that it was improper for plaintiffs’ counsel to reference Marchionne’s compensation in closing argument because his compensation had no relevance to any compensatory purpose. It refers to two instances in the plaintiffs’ closing argument.

In the first instance, using mortality tables, plaintiffs’ counsel calculated that Remington Walden would have had about 20,000 days to live, had he not died in this collision. Counsel then observed that defense counsel had asked the jury to return a verdict for wrongful death damages in the amount of $1.3 million. Counsel calculated that such an award would value Remington Walden’s life at $57 per day but “what [defense counsel] said Remi’s life was worth, Marchionne made 43 times as much in one year.”

In the second instance, in his concluding remarks, plaintiffs’ counsel showed the jury the verdict form, asked the jury to return a favorable verdict on liability, and then stated:

We’re going to ask you to return a verdict for pain and suffering in whatever amount you think is appropriate. We’re going to ask for you to return a verdict for the full value of Remington Walden’s life — this is the hard part of what I do. Frankly, it’s totally up to you all. But I hope you’ll return a verdict that’s meaningful. We ask that you return a verdict for the full value of Remington’s life of at least $120 million. The amount is totally up to you.... That’s less than two years of what Mr. Marchionne made just last year. He made $68 million last year.

“While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw inferences from the evidence, and the fact that the deductions may be illogical, unreasonable, or even absurd is a matter which may be addressed by opposing counsel in his or her closing argument.” Lee v. Ga. Power Co., 296 Ga. App. 719, 726 (9) (675 SE2d 465) (2009) (citation and punctuation omitted). “Counsel is permitted wide latitude in closing argument and any limitation of argument is a matter for the trial court’s discretion.” Lillard v. Owens, 281 Ga. 619, 622 (2) (641 SE2d 511) (2007) (citations and punctuation omitted). In light of the permissible admission of evidence of Marchionne’s compensation, we cannot say that the trial court abused his discretion in allowing this argument.

6. Reference to imprisonment.

Chrysler argues that the trial court erred by allowing plaintiffs’ counsel to tell the jury in closing argument that “Chrysler ought to be in Reidsville instead of Bryan Harrell.” Chrysler has not shown that the trial court abused his discretion.

In closing argument, Chrysler’s counsel argued that Harrell admitted negligence, pled guilty, and was responsible for the collision; and as Harrell was responsible, the jury should return a verdict in favor of Chrysler. Plaintiffs’ counsel responded that “Harrell from day one accepted responsibility,” reviewed Harrell’s testimony in which he apologized, and pointed out that “[h]e’s serving time in Reidsville for his responsibility” On the other hand, counsel argued, “Chrysler has denied everything and still denies everything and has put up what is, in all candor, a dishonesty defense. Chrysler ought to be in Reidsville instead of Bryan Harrell.”

Counsel has

ample latitude to argue what has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment, and the range of such comment is necessarily in the discretion of the trial judge; and unless it can be shown that such discretion has been abused and some positive injury done by the remarks of counsel, the discretion of the trial judge will not be controlled.

Findlay v. Griffin, 225 Ga. App. 475, 477 (5) (484 SE2d 80) (1997) (citation and punctuation omitted). Chrysler has not shown that the trial court abused his discretion in this instance.

7. Admission of recall request letter.

Chrysler argues that the trial court erred by allowing the plaintiffs to introduce evidence of the NHTSA’s Office of Defects Investigation’s (“ODI”) recall request letter, which included a preliminary assessment of the Grand Cherokee’s fuel tank design. It also challenges the admission of evidence of a 2013 meeting between Mar-chionne, David Strickland, the head of the NHTSA, and Ray LaHood, the Secretary of the United States Department of Transportation, after which the ODI issued its final conclusion that the agency found that the 1999 Grand Cherokee’s fuel tank design was not defective.

Chrysler moved in limine to exclude “evidence of or reference to a NHTSA investigation of Jeep vehicles” but to include “the ODI’s finding concerning the Grand Cherokee WJ.” Citing Toole v. McClintock, 999 F2d 1430 (11th Cir. 1993), Chrysler argued before the trial court, and now argues on appeal, that ODI’s recall request letter, the letter that included a finding of a design defect, is inadmissible hearsay.

The trial court addressed the motion in limine in a thorough order, observing that it was undisputed that

commencing in 2010, before the subject wreck, NHTSA investigated Chrysler’s Jeeps with rear gas tanks, including the subject vehicle; that NHTSA’s Office of Defects Investigation made certain findings indicating a safety related defect existed with respect to the rear location of gas tanks on those Jeeps, and so informed Chrysler on June 3, 2013; that after meetings between Chrysler CEO Sergio Mar-chionne, NHTSA Administrator David Strickland, and Secretary of Transportation Ray LaHood, an agreement was reached that there would be no finding of “defect” but there would be a recall of certain Jeeps with rear gas tanks which involved the placement by Chrysler of trailer hitches on some of those Jeeps and inspection of trailer hitches already installed on other of those Jeeps; but there was no recall of the 1999-2004 Grand Cherokees.

The court explained:

Chrysler seeks to introduce the document by which NHTSA closed the investigation (labeled “ODI Resume” and dated 11/11/14), but simultaneously exclude the fact that an investigation ever occurred and the process that led to that closure of the investigation. It would be both inconsistent and misleading to admit evidence regarding the closure of the NHTSA investigation, but simultaneously exclude evidence that the investigation ever occurred. If Chrysler seeks to make arguments based on the closure of the investigation, then as a matter of fairness, Plaintiffs are entitled to introduce evidence about how that closure occurred, what that closure means, and what events led to the closure of the investigation.

(Emphasis in original.) The court concluded that the statute providing an exception to the hearsay rule for public records and reports is controlling:

[T]he ODI June 3, 2013 letter, or at least parts of it, are admissible under OCGA § 24-8-803(8) (A), (B)[,] and (C) [and] allowing Chrysler to argue that the statements in the ODI Resume document mean Chrysler got a “clean bill of health” for the 1999-2004 Grand Cherokees would, given the contents of ODI’s June 3, 2013 letter and the alleged circumstances leading to the closing of the investigation, be manifestly unfair, misleading, and prejudicial to Plaintiffs.

(The text of OCGA § 24-8-803 (8) is reproduced in full below.) Chrysler has not shown that, under the only authority it cites, the trial court abused his discretion in admitting evidence of the June 3, 2013, ODI recall request letter.

In that document, ODI stated its “tentative view [that] there is a performance defect and design defect,” in certain Chrysler vehicles, including the 1999 Grand Cherokee, and that “[t]he performance defect is that the fuel tanks installed on these vehicles are subject to failure when the vehicles are struck from the rear,” potentially resulting in fuel leakage and fire, and that “[t]he design defect is the placement of the fuel tanks in the position behind the axle and how they were positioned, including their height above the roadway”

Citing Toole, 999 F2d at 1435 (2) (B), Chrysler argues that the ODI letter was inadmissible hearsay In Toole, a product liability and medical malpractice action for damages from ruptured breast implants, the Eleventh Circuit held that it was an abuse of discretion to admit a document prepared by the Food and Drug Administration. Id. at 1433 (2) (B). The document contained the agency’s proposal to require pre-market approval for silicone-gel filled breast prostheses and stated the agency’s “proposed findings” on risks posed by such prostheses.Id.

The court in Toole held that the report was irrelevant because it did not address the specific type of implants at issue in the case, and it contained findings that the FDA proposed years after the relevant dates. Id. at 1434 (2) (B). The court also ruled that the report did not qualify for admission under Federal Rule of Evidence 803 (8) (B) because it was “not the kind of trustworthy report described in Rule 803.” Id. The court noted that the report contained only proposed findings and those findings were inferred from articles in medical journals. Id. at 1434-1435 (2) (B). The Eleventh Circuit concluded that the trial court should have excluded the report because it was inadmissible hearsay, given the “tentative and second-hand nature” of its findings. Id. at 1435 (2) (B). Here, on the other hand, the recall request letter was, at least in part, not introduced for hearsay purposes. And, to the extent the letter was hearsay, Chrysler has not shown an abuse of discretion.

“For a statement to constitute hearsay, it must be ‘offered in evidence to prove the truth of the matter asserted.’ OCGA § 24-8-801 (c).” Gates v. State, 298 Ga. 324, 326 (2) (781 SE2d 772) (2016). One purpose for which the ODI recall request letter was offered, however, was to cast doubt on the credibility of the ODI Resume. The ODI recall request letter was part of a timeline, which first showed the ODI reaching an initial finding that the vehicle had a design defect, then Chrysler’s CEO meeting with the head of the NHTSA and the Secretary of the United States Department of Transportation, and finally “the agency” (the ODI Resume does not specify whether “the agency” is ODI or NHTSA) reaching a contrary conclusion that the model year 1999-2004 Grand Cherokee “did not present an unreasonable risk to safety.” The ODI recall request letter was offered, at least in part, not for the substance of the finding of defect, but to support an inference that the meeting led ODI to change the opinion regarding defect to that expressed in the ODI Resume. “[W]hen disputed evidence is admissible for any reason, a trial court does not abuse [his] discretion in denying a motion in limine and admitting it.” Presswood v. Welsh, 271 Ga. App. 459, 461 (3) (610 SE2d 113) (2005) (citation omitted).

Moreover, Chrysler has not shown that under Toole, the only case it cites, that the trial court abused his discretion in admitting the evidence under Rule 803. As noted in Toole, the Eleventh Circuit determined that the evidence at issue was improperly admitted under Rule 803 because it was not trustworthy Here, ODI itself conducted a years-long investigation, unlike the FDA in Toole, which inferred its findings from articles in medical journals. ODI requested and received substantial data from Chrysler. It “obtained incident information from the fatality analysis reporting system (FARS) and NHTSA complaint databases.” Where available, it obtained police reports. Further, unlike the finding challenged in Toole, some of the findings in the recall request were not labeled as tentative, including the findings that “Chrysler was certainly aware of the safety benefits of placing the tank in front of the rear axle”; that “the [model year] 1993-2004 Grand Cherokee performed poorly when compared to all but one of the [model year] 1993-2007 peer vehicles, particularly in terms of fatalities, fires without fatalities, and fuel leaks in rear end impacts and crashes”; and that “[a] 1993 study of fire related deaths in rear crashes occurring from 1977 to 1989 concluded that the increasing relocation of tanks ahead of the rear axle hada sub stantial effect on the reduction of these deaths in rear impacts.”

Chrysler has not shown that the trial court abused his discretion in admitting this evidence.

8. Verdict.

Chrysler argues that it is entitled to a new trial because the amount of damages the jury awarded in its verdict is evidence that an improper motive caused the jury to find Chrysler liable. It argues that the damages awards bear no rational relationship to any conceivable compensatory purpose and, when viewed in light of the other claims of error, was plainly motivated by passion and prejudice and a desire to punish and deter.

The amount of damages a jury awards will require the setting aside of the verdict only rarely: “Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear exorbitant, flagrantly outrageous, and extravagant.” Realty Bond & Mtg. Co. v. Harley, 19 Ga. App. 186, 187-188 (91 SE 254) (1917) (punctuation omitted).

The plaintiffs presented evidence that their four-year-old son burned to death in the Grand Cherokee. They introduced evidence that he could have grown up to be anything in life: a firefighter, an engineer, a lawyer, or a CEO with unlimited earning potential. The plaintiffs presented evidence that the child could not escape and his aunt could not get him out; that he was alive and conscious while the Grand Cherokee was on fire; and that he may have lived up to a minute with flames in contact with his body. They presented evidence that there is no more painful way to die.

Contrary to the cases Chrysler cites in its brief, a review of the evidence bearing on damages does not lead us to believe that we must infer that an improper motive invaded the trial. “[C]ourts will never, in the absence of the most satisfactory evidence that the verdict is erroneous, substitute their impressions for the opinion of the jury.” Realty Bond & Mtg. Co., 19 Ga. App. at 188 (citation and punctuation omitted). Given the evidence, we cannot say that the jury’s verdict “shock [s] the moral sense” so as to infer that the verdict of liability was the result of bias. Id.

Decided November 15, 2016

Reconsideration denied December 5, 2016

Bruce W. Kirbo, Jr.; Swift, Currie, McGhee & Hiers, M. Diane Owens, Bradley S. Wolff, Terry O. Brantley, Alicia A. Timm, for appellant.

Butler, Wooten, Cheeley & Peak, James E. Butler, Jr., David T. Rohwedder, Leigh M. May; Butler Tobin, James E. Butler III; Floyd & Kendrick, George C. Floyd, L. Catherine Cox; Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Robert H. Betts, for appellees.

9. Remitted judgment.

Finally, Chrysler argues that the trial court erred in failing to remit the damages awards sufficiently to bring them in line with prior awards in Georgia. But no two cases are exactly alike, so it may not be relevant to merely compare cases. See St. Paul Fire & Marine Ins. Co. v. Dillingham, 112 Ga. App. 422, 424 (145 SE2d 624) (1965); Colonial Stores v. Coker, 77 Ga. App. 227, 234 (9) (48 SE2d 150) (1948). See also Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 889-890 (16) (311 SE2d 193) (1983) (physical precedent only).

As for the wrongful death damages,

the value of the child’s life must be established by the enlightened conscience of an impartial [factfinder] as applied to the evidence in the case, including testimony as to such child’s age, life expectancy, precocity, health, mental and physical development, family circumstances, and from the experience and knowledge of human affairs on the part of the [factfinder].

Collins v. McPherson, 91 Ga. App. 347, 349 (1) (85 SE2d 552) (1954). As for the pain and suffering damages, “[t]he amount of damages . . . is governed by no other standard than the enlightened conscience of [the] impartial [factfinder]. And the defendant has a heavy burden... to establish that such a damage award is excessive.” AT Systems Southeast v. Carnes, 272 Ga. App. 671 (1) (613 SE2d 150) (2005) (citation and punctuation omitted).

Chrysler has not shown that the trial court manifestly abused his discretion in awarding the plaintiffs $30 million for their child’s wrongful death and $10 million for his pain and suffering. See Porter v. Tissenbaum, 247 Ga. App. 816, 817 (1) (545 SE2d 372) (2001).

Judgment affirmed.

Miller, P. J., concurs. McMillian, J., concurs fully in Divisions 1, 2, 3, 4, 5, 6, 8, and 9, and in judgment only in Division 7.

King & Spalding, Chilton D. Varner, Madison H. Kitchens, amici curiae.

       OCGA § 24-8-803 (8) provides:
      The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness:

      (8) Public records and reports. Except as otherwise provided by law, public records, reports, statements, or data compilations, in any form, of public offices, setting forth:
      (A) The activities of the public office;
      (B) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, against the accused in criminal proceedings, matters observed by police officers and other law enforcement personnel in connection with an investigation; or
      (C) In civil proceedings and against the state in criminal proceedings, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness [.]


author: Rickman, Judge.

text:
    A16A1459.
    COBB BEAUTY COLLEGE, INC. v. SCAMIHORN.
    (792 SE2d 769)
   Rickman, Judge.

Randall “Randy” Scamihorn, former director of Cobb Beauty College, Inc. (“CBC”), filed a breach of contract action against CBC after the college released him within his first year of employment and informed him that it did not intend to renew his contract. The trial court granted summary judgment to Scamihorn after concluding that CBC breached a provision of the employment agreement governing contract renewal, which the court held unambiguously provided that Scamihorn’s initial term of employment was three years, and that CBC’s right of renewal (or nonrenewal) did not accrue until that time. On appeal, CBC contends that the trial court erred in its interpretation of the paragraph governing renewal and further argues that it was entitled to terminate Scamihorn for cause under a separate provision of the employment agreement.

We agree with the trial court that the renewal provision of the contract unambiguously sets forth an initial three-year term, and therefore affirm the trial court’s ruling as to that issue. We nevertheless conclude that a genuine issue of material fact remains as to whether CBC was entitled to terminate Scamihorn’s employment for cause, and therefore reverse the trial court’s grant of summary judgment in favor of Scamihorn on his breach of contract claim. We remand for proceedings consistent with this opinion.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review de novo the trial court’s ruling on a motion for summary judgment.

(Citation and punctuation omitted.) Hart v. Sirmans, 336 Ga. App. 212 (784 SE2d 67) (2016).

So viewed, the evidence shows that Scamihorn and CBC entered into an employment agreement on May 11, 2010. The employment agreement contained two provisions relevant to this action, one in paragraph 3 and one in paragraph 5. These provisions provided:

3. Term of Employment. This Agreement shall remain in effect for 3 years from the effective date, renewed automatically on a year-to-year basis unless either party gives the other party 60 days’ prior written notice before the anniversary date of the initial term or any one-year renewal term. Employee shall begin said term of employment on the 1st day of July 2010.
5. Termination of Employment. This Agreement and the employment by CBC of Employee hereunder shall terminate upon the occurrence of any of the following events: ...(c) upon written notice of termination of employment for cause given by CBC. “Cause” shall mean (i) theft; or wrongful appropriation by Employee; (ii) falsification of records by Employee; (iii) dishonest acts by Employee; (iv) negligence of Employee; (v) incompetence of Employee; (vi) insubordination of Employee; (vii) disloyalty of Employee to CBC; (viii) breach of Employee’s duty of care or duty of loyalty to CBC; (ix) Employee’s willful neglect; or (x) Employee’s violation of any law, rule or regulation. In the event of a proposed termination for cause, CBC will give Employee notice of the facts and circumstances surrounding the alleged cause and provide Employee with an opportunity to present his response to the alleged reason for cause. . . .

On March 31, 2011, approximately nine months into his employment, Scamihorn was given a letter drafted by counsel for CBC informing him that CBC did not intend to renew his contract. The letter requested that Scamihorn remove all of his personal belongings the same day or no later than two days later. Scamihorn was given 60-days severance pay and asked not to return to CBC. The letter did not detail any reason CBC was releasing Scamihorn from its employment, and Scamihorn subsequently retained counsel, who sent CBC’s counsel a letter asserting that CBC breached the employment agreement by its effort not to renew it within the initial three-year term and demanding that Scamihorn be paid the remainder of his three-year salary and additional damages. The letter from Scamihorn’s counsel also rejected CBC’s position that the release from employment was for cause.

In requests for admission filed by Scamihorn and answered by CBC, CBC admitted that it did not provide written notice of cause relating to Scamihorn’s release from employment. However, CBC denied that it had failed to provide any facts and circumstances surrounding the alleged cause; denied that it had failed to give Scamihorn an opportunity to respond to the alleged cause before terminating the employment agreement; and denied that it did not have cause to terminate the employment agreement. CBC also filed a motion to relieve the parties of the mediation requirement, in which it also set forth various allegations against Scamihorn that it asserted gave it cause to terminate Scamihorn’s employment. CBC further argued that Scamihorn was terminated for cause in a pleading entitled “pre-trial brief.”

In response to Scamihorn’s motion for summary judgment, CBC submitted the affidavit of CBC’s owner, who had executed the agreement with Scamihorn on behalf of CBC. The owner’s affidavit detailed many ways in which she alleged that Scamihorn breached paragraph 5 of the employment agreement, thus authorizing his termination for cause.

Focusing on CBC’s initial letter in which it stated its intention not to renew Scamihorn’s contract, the trial court granted summary judgment to Scamihorn. Specifically, it held that paragraph 3 of the employment agreement unambiguously set forth an initial three-year term, and the option not to renew did not arise until sixty days prior to that three-year date. CBC contends that the trial court’s interpretation of the renewal provision contained in paragraph 3 of the employment agreement was erroneous and, further, that it had an independent right to terminate Scamihorn for cause under paragraph 5. We agree with the trial court’s interpretation of paragraph 3 of the employment agreement and, therefore, affirm its ruling on that issue. Nevertheless, because there is a genuine issue of material fact as to whether CBC had cause to terminate Scamihorn’s employment, we reverse the grant of summary judgment to Scamihorn.

1. CBC contends that the trial court’s interpretation of the renewal provision contained in paragraph 3 of the employment agreement was erroneous.

Construction of a contract, at the outset, is a question of law for the court. And such construction involves three steps: first, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

(Punctuation and footnotes omitted.) Holcim (US), Inc. v. AMDG, Inc., 265 Ga. App. 818, 820 (596 SE2d 197) (2004).

The trial court correctly held that the language in paragraph 3 of the employment agreement, that it “shall remain in effect for 3 years from the effective date” and would renew automatically unless notice was given sixty days before the “anniversary date of the initial term,” unambiguously set forth an initial three-year term before CBC had the option of nonrenewing. As noted by the trial court, CBC’s interpretation of the employment agreement — that it was subject to annual renewal even within the first three years — would render meaningless the language providing for an initial three-year term. See Brazeal v. Newpoint Media Group, 331 Ga. App. 49, 53 (769 SE2d 763) (2015) (“[A] contract should not be construed in a manner that would render any of its provisions meaningless or mere surplusage.”) (citation and punctuation omitted).

Citing Wheeler v. Rebel Truck Rental, 125 Ga. App. 431 (188 SE2d 155) (1972), CBC argues that the term “anniversary date” in paragraph 3 of the agreement must be construed to mean that CBC had the option to not renew Scamihorn’s contract every year. In Wheeler, however, the contract at issue provided that the “[cjustomer may cancel this agreement ... on any anniversary of the effective date.” (Emphasis supplied.) Id. at 431. Here, on the other hand, the contract at issue does not refer to “any” anniversary date, but to the anniversary date of the initial three-year term. Such language is capable of only one reasonable interpretation, and CBC’s attempt to create an ambiguity where none otherwise exists must fail. See Wilson v. Southern Gen. Ins. Co., 180 Ga. App. 589, 591 (349 SE2d 544) (1986) (“We cannot permit appellant to create ambiguity by lifting a clause or portion of the contract out of context. The natural, obvious meaning is to be preferred over any curious, hidden meaning which nothing but the exigency of a hard case and the ingenuity of a trained and acute mind would discover.”) (citation and punctuation omitted).

2. Nevertheless, our inquiry does not end there. Scamihorn was not entitled to summary judgment on his claim for breach of contract if, as CBC contends, there is a genuine issue of material fact as to whether CBC was authorized to terminate him for cause under paragraph 5 of the employment agreement. See Odem v. Pace Academy, 235 Ga. App. 648, 654 (1) (510 SE2d 326) (1998).

In Savannah College of Art & Design v. Nulph, 265 Ga. 662-663 (1) (460 SE2d 792) (1995), the Supreme Court of Georgia explained:

An employer’s failure to follow contract procedures in dismissing an employee does not “cause” the termination. If the employer were justified in terminating the employee under the contract, then the termination would have occurred even if the employer had followed the proper procedures. Thus, procedural flaws in the manner in which the termination was carried out will not warrant damages to compensate for losses that naturally result from a justified termination. On the other hand, when an employment contract requires that termination be “for cause” only, and the employer fires the employee without cause, a substantive breach occurs, and the employee would be entitled to seek full compensatory damages.

(Footnotes omitted.)

Here, if the finder of fact determined that CBC had cause to terminate Scamihorn, then CBC would not be liable for damages to him. See Odem, 235 Ga. at 654 (1) (“[T]he elements for a breach of contract claim in Georgia are merely the breach and the resultant damages to the party who has the right to complain about the contract being broken. . . . [Wjhere we have determined that [the employer] had authority under the contract to terminate [the employee’s] employment, no breach of contract occurred. . . .”) (citation and punctuation omitted). This is true, even if CBC failed to follow the procedural requirements of the contract.

Decided November 15, 2016

Reconsideration denied December 6, 2016.

S. Lee Storesund, Charles M. Cork III, for appellant.

Gregory, Doyle, Calhoun & Rogers, Todd E. Hatcher, for appellee.

[Procedural flaws in the manner in which the termination was carried out will not warrant damages to compensate for losses that naturally result from a justified termination. On the other hand, when an employment contract requires that termination be “for cause” only, and the employer fires the employee without cause, a substantive breach occurs, and the employee would be entitled to seek full compensatory damages.

(Footnotes omitted.) Savannah College of Art & Design, 265 Ga. at 662-663 (1).

Because CBC raised an issue of material fact as to whether or not it had cause to terminate Scamihorn, both by affidavit and by factual disputes in the pleadings, the trial court erred in granting judgment as a matter of law to Scamihorn. See Savannah College of Art & Design, 265 Ga. at 663 (3); see also Botterbusch v. Preussag Intl. Steel Corp., 271 Ga. App. 190, 194 (1) (b) (609 SE2d 141) (2004).

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

Barnes, P. J., and Boggs, J., concur.

       Scamihorn alleges that this affidavit and the documents attached to it are inadmissible.
      However, even if these complaints had merit, [Scamihorn] made no such arguments about the affidavit below, either in an objection to the affidavit, in a motion to strike the affidavit, or in his summary judgment brief. Objections to affidavits such as an objection to the affiants’ lacking personal knowledge will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment.
      (Citation, punctuation and footnote omitted.) Formaro v. SunTrust Bank, 306 Ga. App. 398, 399-400 (1) (702 SE2d 443) (2010).

       No deposition transcripts, if such exist, are in the record on appeal. However, we may look to the pleadings, documents, and affidavits in the record in order to determine if issues of fact were raised. See Collins v. Byrd, 204 Ga. App. 893, 894 (1) (420 SE2d 785) (1992).

       We disagree with Scamihorn that CBC failed to preserve its argument that genuine issues of material fact exist as to whether it had cause to terminate Scamihorn. In pleadings and at least one motion filed in the trial court, CBC made numerous references to its having cause to terminate Scamihorn. Further, during the hearing on Scamihorn’s motion for summary judgment, CBC maintained that it had cause to terminate Scamihorn.


author: McMlLLIAN, Judge. McFADDEN, Judge,

text:
    A16A1029.
    BRIDGES et al. v. COLLINS-HOOTEN et al.
    (792 SE2d 721)
   McMlLLIAN, Judge.

Eric Bridges appeals the trial court’s order disbursing excess tax sale funds in this interpleader action, asserting in related enumerations of error that the trial court erred (1) in ordering the excess funds to be disbursed to the Georgia Department of Revenue and (2) in awarding attorney fees beyond those allowed in an interpleader action. For the reasons set forth below, we affirm in part and reverse in part.

On December 4, 2001, Dougherty County conducted a nonjudicial tax sale of the property at 3111 Winterwood Avenue (the “Property”) for unpaid taxes. Heartwood 11, Inc. (“Heartwood”), purchased the Property at the tax sale, which, after payment of all past due taxes and costs, generated $45,274.54 in excess funds (the “Funds”). On November 26,2002, Fairbanks Capital Corporation (“FCC”) redeemed the Property from Heartwood, and a quitclaim deed was recorded in Dougherty County identifying FCC as the redeeming party.

Over eleven years later, in January 2014, Denver Collins-Hooten, acting as the tax director of Dougherty County (the “Tax Director”), filed an interpleader action in the Superior Court of Dougherty County and deposited the Funds into the court’s registry The Tax Director named Otis Bridges, Eric Bridges, FCC, and the Georgia Department of Revenue as respondents with a potential interest in the Funds. The trial court granted the Tax Director’s motion to serve all respondents by publication, and Eric responded in July 2014, asserting his claim to the Funds. The following month, Eric filed a “Motion to Disburse Proceeds or in the Alternative for Grant of Summary Judgment,” noting that he was entitled to the Funds and that no other persons or entities had made any claim to the Funds.

On September 2, 2014, the Tax Director filed a separate motion to disburse, acknowledging that Eric was the only respondent to respond to the interpleader action. In her motion, the Tax Director also included a claim for attorney fees relative to the filing of the interpleader action in the amount of $3,735 and requested a hearing to determine which of the respondents should receive the Funds. On September 10, 2014, the trial court entered an order granting Eric’s motion to disburse the Funds, awarding the full amount to Eric, subject only to the Tax Director’s filing of a bill of costs.

The Tax Director thereafter filed an emergency motion to set aside the order and halt the disbursement of the Funds on the grounds that the trial court did not allow it a full 30 days to respond to Eric’s motion to disburse, which she characterized as a motion for summary judgment. The same day, the Tax Director moved for an extension of time to respond to Eric’s motion, as well as for leave to substitute party defendant FCC with Select Portfolio Servicing, Inc. (“SPS”). The trial court then entered separate orders halting any disbursement of the Funds, setting aside its previous order awarding the Funds to Eric, and granting the Tax Director’s motion to substitute.

Following a hearing, the trial court entered an order denying Eric’s motion to disburse the Funds and a subsequent order finding that SPS is the entity with a priority interest in the Funds. However, because SPS did not make a claim for the Funds, the trial court ordered the Funds to be disbursed to the Georgia Department of Revenue afterpayment of attorney fees totaling $8,183.57 to the Tax Director. This appeal followed.

1. In his first two enumerations of error, Eric asserts that the trial court erred in finding that SPS has a priority interest in the Funds. Whether SPS has a priority interest in the Funds under the relevant statutes is a question of law, which we review de novo. See City of Atlanta v. Hotels.com, 289 Ga. 323, 325 (1) (710 SE2d 766) (2011).

Under Georgia law, if a property owner fails to pay county property taxes, the county may conduct a sale of the property to satisfy the unpaid taxes. See OCGA § 48-4-1. Following a tax sale, the tax deed vests the purchaser with a defeasible fee interest in the property that continues for a one-year period during which time other interested parties retain a statutory right of redemption. Land USA, LLC v. Ga. Power Co., 297 Ga. 237, 239 (1) (773 SE2d 236) (2015) (delinquent taxpayer or party holding interest in or lien on property may redeem property by paying to tax sale purchaser the purchase price plus taxes paid and interest). “If the property is redeemed, the tax sale is essentially rescinded and a quitclaim deed is executed by the tax sale purchaser back to the owner of the property at the time of levy and sale.” Nat. Tax Funding, L.P. v. Harpagon Co., LLC, 277 Ga. 41, 42 (1) (586 SE2d 235) (2003).

And when

a creditor of the original taxpayer redeems the property, the amount paid by the redeeming creditor becomes a first lien on the property. The redeeming creditor then has first priority to repayment — a “super-lien” for the redemption price — and may proceed to foreclose against the property based upon that lien.

Nat. Tax Funding, 277 Ga. at 42-43 (1). Other lienholders at the time of the sale that have not been fully paid — through excess funds or otherwise — retain their presale liens on the property. See DLT List, LLC v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318, 321 (1) (779 SE2d 436) (2015).

When a tax sale generates additional funds more than those necessary to satisfy the tax lien, OCGA § 48-4-5 (a) governs the payment of excess tax sale proceeds. That statute provides:

If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, .. . the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale. Such notice shall be sent by first-class mail within 30 days after the tax sale. The notice shall contain a description of the land sold, the date sold, the name and address of the tax sale purchaser, the total sale price, and the amount of excess funds collected and held by the tax commissioner, tax collector, sheriff, or other officer. The notice shall state that the excess funds are available for distribution to the owner or owners as their interests appear in the order of priority in which their interests exist.

The Tax Director argued below, and the trial court agreed, that SPS has a priority interest in the Funds, relying on this Court’s decision in Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (638 SE2d 779) (2006), which held that the interest of the redeeming creditor takes priority over any claims on the property, including the property owner’s interest. However, shortly after the trial court entered its order, Wester was expressly overruled by DLT List, 335 Ga. App. at 323. In DLT List, this Court explained that Wester had incorrectly expanded the holding of Nat. Tax Funding to mean that the redeeming creditor could both redeem the property and receive excess funds from the tax sale to pay for the priority lien created by the redemption:

Instead, Nat. Tax Funding held that following a tax sale, the holder of a lien has two options — it may either file a claim to collect against any proceeds from the sale, or it may assert its rights following the tax sale via a statutory claim for redemption, in which case it obtains a first priority lien on the property, which it may then enforce by levy and sale.

(Citation and punctuation omitted; emphasis in original.) 335 Ga. App. at 323 (1). Thus, the trial court erred in relying on Wester to find that SPS, as the redeeming creditor, had a priority interest in the Funds and in denying Eric’s motion to disburse on that basis.

The question then is whether the trial court properly granted the Tax Director’s motion to disburse the Funds on grounds now asserted by the Tax Director — that SPS had a separate recorded security interest on the property at the time of the 2001 tax sale. Based on our review of the record, SPS’s purported security interest is only referenced in the quitclaim deed executed upon the redemption sale. The security deed is not in the record nor is there any evidence of the actual amount of the security interest. To the contrary, in support of his motion to disburse the Funds, Eric submitted the affidavit of a title examiner who averred that he examined the real property records for the Property for the period 1981 to 2014 and found that Otis had, over the years, secured payment of borrowed money with several individuals and banks, including NationsCredit, but that each of the respective security deeds had been satisfied of record and that there were no outstanding security deeds under or in his name secured by the Property Although the Tax Director now argues on appeal that there was insufficient evidence presented to the trial court to support a finding that SPS’s security deed was cancelled, at the hearing on the parties’ cross-motions to disburse, the Tax Director, through counsel, conceded that any outstanding security deeds had been paid even before the Property’s several subsequent sales. This argument has therefore been waived. See Reed v. State, 294 Ga. 877, 879 (2) n.2 (757 SE2d 84) (2014); Hollberg v. Spalding County, 281 Ga. App. 768, 774-75 (2) (b) (637 SE2d 163) (2006) (“Admissions of fact, made by a party’s counsel during a hearing or trial are regarded as admissions in judicio and are binding on the party.”) (citation and punctuation omitted).

Although SPS apparently had an interest in the Property at the time of the tax sale that gave it a statutory right of redemption, it is undisputed that SPS’s security deed has now been fully satisfied, and it no longer retains any priority lien on the Property. See DLT List, 335 Ga. App. at 321 (1). Accordingly, the trial court erred in finding that SPS is entitled to receipt of the Funds instead of Eric, as the administrator of the original owner’s estate. See OCGA § 48-4-5 (b) (“Such excess funds shall be distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist.”).

2. Eric next asserts that the Tax Director was not a disinterested party to this interpleader action because she made a direct claim to at least a portion of the Funds and thus has no standing to recover attorney fees. OCGA § 48-4-5 (b) provides in pertinent part:

The tax commissioner, tax collector, sheriff, or other officer may file, when deemed necessary, an interpleader action in superior court for the payment of the amount of such excess funds. . . . The cost of litigation of such an interpleader action, including reasonable attorney’s fees, shall be paid from the excess funds upon order of the court.

The record here confirms that the Tax Director not only sought the cost of bringing the interpleader action, but also directly claimed entitlement to a portion of the Funds for “ad valorem taxes that may be either presently due or past due on the subject property” While this assertion was improper, the trial court did not award any portion of the Funds to the Tax Director for this purpose, nor do we find that such an improper allegation invalidates the entire inter-pleader action. The Tax Director is clearly permitted under Georgia law to otherwise bring an interpleader action regarding excess funds following a tax sale. See OCGA § 48-4-5 (b). Accordingly, this enumeration of error provides no basis for reversal.

3. In the alternative, in his final enumeration of error, Eric maintains that the trial court’s award of attorney fees to the Tax Director must be reduced. In her initial motion to disburse the Funds, the Tax Director asserted a claim for $3,735 in attorney fees. However, after the trial court initially awarded the Funds to Eric — subject to the payment of the attorney fees requested by the Tax Director — the Tax Director continued to actively litigate the matter, including filing an emergency motion to set aside, requesting a hearing, moving to substitute one of the potentially interested parties, and filing an amended interpleader petition before attending and arguing at the hearing on the motion to disburse. At the time the trial court ultimately entered its final order disbursing the Funds, the Tax Director requested and received an order granting attorney fees in the amount of $8,183.57.

Because OCGA § 48-4-5 (b) provides in mandatory language that the trial court “shall” award attorney fees, the award of attorney fees will be affirmed on appeal if there is any evidence to support it. See Grapefields, Inc. v. Kosby, 309 Ga. App. 588, 589 (710 SE2d 816) (2011). As explained in Division 2, under Georgia law, a tax commissioner is authorized to file an interpleader action for the payment of the amount of any excess funds available following a tax sale. OCGA § 48-4-5 (b). And the statute authorizing the filing of an interpleader action also provides that “[t]he cost of litigation of such an interpleader action, including reasonable attorney’s fees, shall be paid from the excess funds upon order of the court.” Id. This statute does not specifically limit the actions to be taken by a tax commissioner in litigating the action, and the trial court here found the attorney fees submitted by the Tax Director to be reasonable. Based on the record before us, we cannot say that there was no evidence to support the trial court’s award of attorney fees to the Tax Director. See LN West Paces Ferry Assoc., LLC v. McDonald, 306 Ga. App. 641, 646 (1) (b) (703 SE2d 85) (2010) (although attorney fees were substantial relative to the damages at issue, moving party presented evidence fees were reasonable in light of amount of time and expense required).

And although Eric argues on appeal that certain time entries showed work unrelated to this action and should not have been included in the trial court’s order awarding attorney fees, he failed to object on these specific grounds below. Thus, this argument was waived and presents nothing for review in this appeal. See Primas v. City of Milledgeville, 296 Ga. 584, 585 (769 SE2d 326) (2015).

Judgment affirmed in part and reversed in part.

Miller, P. J., Ellington, P. J., Phipps, P. J., Dillard, Branch, Mercier and Peterson, JJ., concur. McFadden, J., concurs as to Divisions 1 and 2 and dissents as to Division 3.

Decided November 1, 2016

Reconsideration denied December 7, 2016

Ayoub & Mansour, John A. B. Ayoub, John G. Mansour, Carolina D. Bryant; M. Jeremy Lynch, for appellants.

McFADDEN, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 2. Because the Tax Director is entitled to reasonable attorney fees only for discharging the limited role of a plaintiff in interpleader, I respectfully dissent from Division 3.

A requirement for a plaintiff to file an interpleader action is that she “must not have or claim any interest in the subject matter.” Almand v. Reese, 209 Ga. 138, 142 (2) (71 SE2d 223) (1952). Once she is no longer disinterested, she loses the right to require the other parties to interplead. See Gardner v. Haas, Howell & Dodd, Inc., 178 Ga. 685, 687 (173 SE 863) (1934).

And although OCGA § 48-4-5 allows the trial court to award reasonable attorney fees, in interpleader actions, “[t]he general justification for granting counsel fees is that the stakeholder is helping the parties to a prompt result, and because of the minimal work required to institute a suit in interpleader, the fund will not be seriously depleted.” Mass. Mut. Life Ins. Co. v. Central Penn Nat. Bank, 372 FSupp. 1027, 1044 (E.D. Pa. 1974) (punctuation omitted). The crucial factor is that the stakeholder must be disinterested in the outcome. Midland Nat. Life Ins. Co. v. Emerson, 121 Ga. App. 427, 428 (a) (174 SE2d 211) (1970). If the stakeholder is not disinterested, “it is necessary for the court to segregate the costs incurred in performing the ‘stakeholder’function and award the plaintiff only those fees.” Mass. Mut., 372 FSupp. at 1044.

Here, as the majority acknowledges, the Tax Director was not disinterested. First, as noted in Division 2 of the majority opinion, the Tax Director herself made a direct claim to a portion of the funds. Second, as the majority acknowledges, the Tax Director acted as an advocate, arguing that SPS had a priority interest in the funds. The proper course would have been for the Tax Director to seek dismissal as a party to the action, not to assert her own claims or to advocate on behalf of another. Cheek v. Savannah Valley Production Credit Assn., 244 Ga. 768, 770 (5) (262 SE2d 90) (1979). I would hold that the Tax Director was not entitled to attorney fees for asserting her own direct claim or for acting as an advocate for SPS, vacate the award of attorney fees, and remand for recalculation accordingly.

Jenkins & Bowen, Robert L. Walker; W. Spencer Lee IV, for appellees.

       Otis Bridges, who subsequently passed away in May 2005, was the record owner of the Property at the time of the tax sale in December 2001. Eric Bridges is the administrator of Otis Bridges’ estate and his sole heir. For the sake of clarity, we will refer to these individuals as Otis and Eric.

       It appears from the record that at some point the Tax Director learned that FCC had been acquired by SPS after FCC had already redeemed the Property. Although SPS was served on October 7, 2014, it is undisputed that SPS never responded to the interpleader petition, and SPS is not a party to this appeal.

       Pursuant to OCGA § 48-4-5 (c), after five years have elapsed from the tax sale date, the party holding the excess funds is to pay over to the Georgia Department of Revenue any unclaimed excess funds.

       The record does not disclose whether the Tax Director or her predecessor had provided the required notice to interested parties within 30 days of the tax sale.

       We note that our Supreme Court recently granted a writ of certiorari in DLT List. See Case No. S16G0646. However, under our Constitution’s two-term rule, this Court is required to “dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.” Ga. Const. Art. VI, Sec. IX, Par. II. Thus, “we are not at liberty to delay the disposition of appeals in anticipation of pending decisions from [our own] Supreme Court.” In the Interest of J. F., 338 Ga. App. 15, 18 (789 SE2d 274) (2016).

       The title examiner further explained that NationsCredit appointed FCC as its duly authorized power of attorney for all loans whose servicing was transferred from NationsCredit to FCC in 2001 and recorded the power of attorney on July 8, 2002.

       Based on our holding in this division, we need not address Eric’s fifth enumeration of error, in which he asserts that he is entitled to the Funds because SPS defaulted after failing to file an answer or otherwise present its claim following the Tax Director’s personal service of the interpleader petition on SPS.

       See Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. v. Downing, 321 Ga. App. 778, 781 (742 SE2d 742) (2013) (tax commissioner not authorized to use excess funds to satisfy any outstanding ad valorem taxes accrued on the subject property after the tax sale).