text:
    A11A0100.
    HOLLAND v. THE STATE.
    (714 SE2d 126)
   Smith, Presiding Judge.

Felicia Holland and her husband were jointly indicted and charged with theft by shoplifting and two counts of obstruction. Following a joint trial, the jury acquitted Holland’s husband on all counts, but found Holland guilty of theft by shoplifting. The trial court sentenced Holland as a recidivist to serve ten years. Following the denial of her motion for new trial, Holland appeals, citing several claims of error. Having reviewed these claims, we affirm the judgment of conviction, but vacate Holland’s sentence and remand the case for resentencing.

The record reveals that a drug store employee heard a man and a woman whispering in one of the store aisles. The employee thought it was unusual and asked if she could assist them and the couple said “no.” The employee noticed that the couple had several cans of powder baby formula and a pack of diapers in their shopping cart. She alerted other store personnel because large amounts of baby formula were “not something normally purchased” from a drug store because the price there was higher than at a grocery store.

After alerting other store personnel, the employee saw the couple again and noticed that the formula “was not viewable,” but that the two had a large bag that was “bulgy from something inside it.” When she saw the man bring two shirts over to the cart and place them on top of the bag, she went to the stockroom to call security. After the employee returned, she noticed the shopping cart was empty except for the pack of diapers. She ran to the front of the store and saw the couple walking out the front door with the woman carrying the bag. The employee followed the two out to the parking lot where she confronted them, telling them that she knew “they had taken something.” The man and the woman drove away “very hurriedly,” with the woman driving the van.

The employee ran into the store, “telling them to call 911 and yelling the tag number at the same time.” When police arrived, she gave them a description of the couple, a description of the vehicle they were driving, an “older-model, blue Astro van,” and what she believed to be the vehicle’s tag number. The employee identified Holland and her husband as the man and woman she saw in the store.

Police officers nearby received a call concerning the incident and observed a van fitting the description. They followed the van, and when it pulled over on its own accord, they called in the tag number and confirmed that it was the same van involved in the drug store incident. When officers exited their patrol car and approached the van, the “male suspect got out of the passenger side, walked around to the driver’s side, opened the door.” The officers identified themselves and ordered the man to stop. As the officers repeated their command, the man “never did turn around . . . jumped into the vehicle. He didn’t even slam shut the door on his own. He just put it in drive and took off.” One of the officers identified Holland’s husband as the man he observed walk around the van and drive off.

An officer with the police aviation unit testified that he began pursuit of the van by helicopter, and saw the van stop in a cul de sac. Two occupants of the van jumped “out of the vehicle and start[ed] running on foot.” Officers landed the helicopter and apprehended Holland who was “sweating profusely” and not wearing any shoes. They then searched the van and discovered numerous cans of baby formula, three shirts, and a large plastic bag that were identified by the drug store employee as items from the store. The police later arrested Holland’s husband.

1. Holland contends that the trial court abused its discretion in denying her motion to sever her trial from that of her husband. Holland’s argument is two-fold. She contends that severance was required because her counsel and her husband’s counsel “disagreed as to two pieces of evidence,” the owner of the van and Holland’s address. Holland argues further that the court’s denial of severance forced her “to choose between her right to a defense and her spousal privilege.”

“Since the grant or denial of a motion to sever is left in the discretion of the trial court, its ruling will only be reversed for an abuse of discretion.” (Citation and punctuation omitted.) Rimmer v. State, 197 Ga. App. 294, 296 (5) (398 SE2d 282) (1990). “The burden is on the moving party to make a clear showing of prejudice and a denial of due process in the absence of severance.” (Citation omitted.) Ward v. State, 288 Ga. 641, 644 (3) (706 SE2d 430) (2011).

The defendant requesting a severance has the burden of making a clear showing of prejudice and a denial of due process in the absence of severance. Factors the trial court should consider in exercising its discretion include: (1) whether the number of defendants creates confusion of the evidence and law applicable to each defendant; (2) whether a danger exists that evidence admissible against one defendant will be considered against the other, despite cautionary instructions; and (3) whether the defenses are antagonistic.

(Citation and punctuation omitted.) Loren v State, 268 Ga. 792, 795 (2) (493 SE2d 175) (1997).

With regard to Holland’s first claim, there is nothing in the record to show that the defense attorneys disagreed about evidence concerning the van’s registration. The record does reveal that Holland’s husband’s counsel asked an officer what address he had for Holland. Holland’s counsel objected to the officer reading Holland’s address from a copy of a warrant without the warrant itself being admitted. The objection was overruled. Even if this exchange could be construed to show that the defenses of Holland and her husband were antagonistic, it fails to demonstrate “a clear showing of prejudice and a denial of due process in the absence of severance.” Ward, supra. “The mere fact that the defenses of co-defendants are antagonistic is not sufficient to mandate a severance. Appellant must also demonstrate harm by the failure to sever.” (Citation omitted.) Loren, supra, 268 Ga. at 795 (2).

In support of her second argument, Holland points to OCGA § 24-9-23, which provides that “[hjusband and wife shall be competent but shall not be compellable to give evidence in any criminal proceeding for or against each other.” As explained in United States v. Ferrer, 2008 WL 4890034 (M.D. Pa. 2008) (unpublished), Holland’s argument here presents a “conflict between a right and a privilege. On the one hand, the Constitution guarantees a criminal defendant the fundamental right to testify at trial on his or her own behalf. This right is ‘personal,’ and can be waived only by the defendant and only if done knowingly, voluntarily, and intelligently.” (Citations and punctuation omitted; emphasis supplied.) Id. On the other hand, OCGA § 24-9-23 provides a privilege to protect the harmony and unity of marriage, Phillips v. State, 278 Ga. App. 439, 441-442 (1), n. 2 (629 SE2d 130) (2006), which can be waived, see Biswas v. State, 255 Ga. App. 339, 341 (1) (565 SE2d 531) (2002). Holland cites no authority prohibiting a spouse from having to choose between not testifying or testifying against her husband. In essence, she argues that she was compelled not to testify, which is not safeguarded by OCGA § 24-9-23 and is not a denial of due process.

At the hearing on the motion to sever, Holland’s counsel argued that Holland wished to testify in the trial in her own defense and that her testimony would inculpate her husband. Counsel argued further that if severance was granted, Holland “can testify at will during the trial or make a proffer to the Court. She would testify at trial that I did not — that she did not commit any shoplifting.” But other portions of the record undercut Holland’s claim that she would have testified if she had been granted a severance. At the hearing on the motion for new trial, Holland’s counsel testified that Holland chose not to testify because

we talked about it and — and we talked with each other about it and because of the prior record and because of the fact that the impeachment law is the way it is here in Georgia, that — you know, we just — both of us decided, but it was her final decision, that she would have just been crucified if she had gotten up and testified.

Moreover, as in Loren, supra, 268 Ga. at 795 (2), there was nothing confusing about the evidence in this case and no danger that the evidence against Holland’s husband would be considered against Holland. Id. (wife’s request for severance from husband’s trial denied where no clear showing of prejudice or denial of due process). Because Holland has made no showing of harm, the trial court did not err in denying Holland’s motion for severance. See id.; see also Rimmer, supra, 197 Ga. App. at 296 (5) (no abuse of discretion in refusing to sever wife’s trial from trial of co-defendant husband).

2. Holland contends that the trial court made comments to a prosecution witness that improperly bolstered that witness’s credibility. During trial, the following colloquy took place between the trial court and an officer who testified for the State:

[The court:] Every now and then we say things that don’t have anything to do with this trial. Have you seen the commercial, Greg, about the — Howie Long, the NFL football player that’s advertising for Silverado, and the guy is comparing Chevrolets to Toy otas and Hondas and all. The guy’s looking at him and says, you’ve got cop hair. You’ve got cop hair, Greg.
[Officer:] I — I hope it looks good.
[The court:] It looks good, Greg. Go ahead, please.

At another point in the trial, the court asked the officer if his police helicopter had a GPS system, and after the officer’s response, the trial court stated: “Thank you. Good seeing you again, Greg. Take care.”

Holland argues that by this exchange with the officer and by using the officer’s first name, the trial court showed “familiarity, respect, and affection” for the officer, and therefore commented favorably upon his credibility. OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Although some of the court’s comments seemed to suggest approval of the officer and “should be avoided to prevent even the slightest intimation of partiality,” O’Hara v. State, 241 Ga. App. 855, 859 (3) (528 SE2d 296) (2000), we cannot agree that the remarks “undermined the integrity of the process or improperly enhanced the credibility of this witness,” id., or commented upon what was proved or Holland’s guilt.

3. Holland contends that the trial court erred in admitting hearsay testimony concerning the vehicle registration of the van without admitting the registration record. An officer who responded to the scene testified that the vehicle tag number given to her by the employee was incorrect, “[s]ome of the numbers were transposed.” The officer stated further that she came “across the correct tag number, ran it through dispatch and ran it on the in-car computer,” and discovered that the van was registered to John Walter Williams. The trial court allowed this testimony over Holland’s hearsay objection.

We have held that where an officer runs a computer check of a tag, testimony regarding the results of the search is hearsay. Green v. State, 277 Ga. App. 867, 869 (1) n. 7 (627 SE2d 914) (2006). “The proper method of offering proof on this issue would have been through the introduction of a properly authenticated printout of the computer record rather than by the officer’s testimony alone.” (Citation and punctuation omitted.) Id. Although the trial court improperly allowed the hearsay testimony of the officer here, the admission of that evidence was harmless in light of the overwhelming direct and circumstantial evidence against Holland. See Bridges v. State, 268 Ga. 700, 708 (6) (492 SE2d 877) (1997) (admission of hearsay harmless in light of overwhelming evidence).

4. Holland contends that the trial court gave the jury an “erroneous and confusing instruction concerning the decision to direct a verdict on some of the charges,” and that trial counsel was ineffective in failing to object to the instruction. The trial court instructed the jury:

After listening to the motions and considering everything that was told me in those motions, my decision and my ruling was, as to count two and to count four, I have granted a directed verdict in favor of Ms. Holland as to count two and count four. You will not need to consider guilt or innocence on Ms. Holland with regards to either of the obstruction charges. I have taken that away from you. I’ve entered basically a Court’s plea of not guilty or a Court’s finding of not guilty in favor of Ms. Holland on those two counts only. And that’s the only thing I wanted to call to your attention.

Holland contends that this instruction implied that she was guilty of the other charges and that a “proper instruction would have said nothing about guilt, innocence, or not guilt.” Holland complains further that the court’s instruction violated OCGA § 17-8-57 (it is error for a judge in a criminal case to express or intimate his opinion as to the guilt of the accused).

The Georgia Supreme Court has held, however, “that remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citation and punctuation omitted.) Linson v. State, 287 Ga. 881, 884 (2) (700 SE2d 394) (2010). And as in Linson, the trial court did not express any opinion as to the sufficiency of the evidence against Holland. Id.; see also Young v. State, 269 Ga. 490, 493-494 (4), n. 6 (500 SE2d 583) (1998) (no error in court’s statement to jury that there was insufficient evidence for jury to consider verdict against one defendant and that case was still pending against other two defendants).

Because there was no error in the trial court’s instruction to the jury, trial counsel was not ineffective for failing to object. Howard v. State, 305 Ga. App. 159, 163 (3) (a) (699 SE2d 114) (2010) (trial counsel not ineffective for failing to make a meritless objection).

5. Holland contends that the trial court erred in sentencing her under OCGA § 17-10-7 without exercising its discretion to probate or suspend the sentence. The State introduced Holland’s convictions for bail jumping, theft by receiving stolen property, and giving a false name, and three convictions for theft by shoplifting. Pursuant to OCGA § 17-10-7 (a) and (c) (recidivist sentencing), and OCGA § 16-8-14 (b) (1) (C) (theft by shoplifting), the trial court was required to sentence Holland to a term of ten years. See Lester v. State, 309 Ga. App. 1, 3 (2) (710 SE2d 161) (2011). However, the trial court also had discretion to probate or suspend her sentence after she served one year in confinement. OCGA § 16-8-14 (b) (1) (C).

In sentencing Holland, the following colloquy took place between the trial court and Holland’s counsel:

[The court:] All right. Would you explain the range of punishment, please?
[The State:] Yes, Judge, theft by shoplifting, that carries in the state of Georgia a possible sentence range of one to ten years in the state prison —
[The court:] All right.
[The State:] — and the recidivist treatment, ten years, Judge.
[The court:] Thank you, sir. [Holland’s counsel], anything on behalf of your client, sir?
[Counsel:] Judge, I think your sentence — you can have only one sentence according to law.
[The court:] Yes, sir.
(Pause)
[The court:] All right. Ms. Holland . . . [t]he jury’s found you guilty of shoplifting. In this particular case this was under the recidivism statute, which means, as you understand, talking to your attorney, both before we started this trial and now, that upon a conviction, that you were looking at ten years to serve in prison. . . . Your sentence, ma’am, will be ten years to serve in prison. That’s the order of the [c]ourt.

(Emphasis supplied.) At the hearing on the motion for new trial, trial counsel testified about the following discussion between the court and counsel before trial:

The . . . State had already given me notice of recidivist treatment. They had given me, for the purposes of aggravation of sentence, and I think they only needed three prior felony convictions. I think they actually had four, if I’m not mistaken. ... I went over that with Felicia. And the Judge made it clear the the day before. I was satisfied from reading the Code and knowing the Code. . . . But that if she’s convicted after being a recidivist, the Judge would not even have the discretion to probate or defer any of the sentencing, that it would be a maximum prison sentence, and that’s —you know, that’s what we’re going for. I mean, and he told her that. He told us all that.

(Emphasis supplied.)

“Unless affirmative evidence shows otherwise, the trial court is presumed to have exercised its discretion in imposing sentence.” (Citation and punctuation omitted.) Paige v. State, 277 Ga. App. 687, 688 (2) (627 SE2d 370) (2006); see also Lester, supra. Here, Holland has demonstrated on the record that the trial court may not have exercised its discretion to consider probating or suspending a portion of Holland’s sentence. Under these circumstances, and out of an abundance of caution, we vacate Holland’s sentence for this reason and remand the case for resentencing with direction to the trial court to exercise its discretion in reimposing sentence. See Bradshaw v. State, 237 Ga. App. 627, 630 (2) (516 SE2d 333) (1999) (trial court stated it had no discretion in sentencing defendant).

Decided July 7, 2011.

Elizabeth A. Brandenburg, Marcia G. Shein, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

6. Holland contends in her remaining enumeration that trial counsel was ineffective in failing to inform the trial court of its discretion to probate or suspend a portion of her sentence. Because we have vacated Holland’s sentence and remanded this case for resentencing, this argument is moot.

Judgment affirmed, sentence vacated, and case remanded for resentencing.

Mikell and Dillard, JJ., concur.

       Holland’s husband was also charged with driving with a suspended license.

       The trial court directed a verdict on Holland’s obstruction counts.

       There was evidence that Holland’s former last name was Williams.

       Holland makes no argument regarding the length of the sentence.


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A11A0200.
    MXENERGY INC. v. GEORGIA PUBLIC SERVICE COMMISSION et al.
    (714 SE2d 132)
   Smith, Presiding Judge.

MXenergy Inc. appeals from a superior court judgment affirming a decision of the Georgia Public Service Commission (“the commission”). It did not err in so doing, and we therefore affirm the judgment of the superior court.

The dispute in this action arises from the “true up settlement process” applied to natural gas marketers by the commission, as discussed in our earlier decision of Infinite Energy v. Georgia Public Svc. Comm., 257 Ga. App. 757 (572 SE2d 91) (2002):

Atlanta Gas Light Company is an electing distribution company under the Natural Gas Competition and Deregulation Act [OCGA § 46-4-150 et seq.]. As a distribution company, Atlanta Gas Light does not sell natural gas directly to customers, but provides the distribution system used by certified marketers to deliver gas to their customers.
The marketers estimate how much gas their respective customers will use and then supply Atlanta Gas Light with gas for delivery to the customers. But because marketers cannot predict exactly how much gas their customers will use, they sometimes supply less gas than their customers actually consume. Their customers then end up using gas that was delivered by another marketer. But regardless of who supplied the gas, the marketers charge their customers for the gas they actually use. This means that some marketers sell gas they did not tender to Atlanta Gas Light, while others tender gas that they did not sell.
Consequently, there must be a process in place to reconcile, or “true up,” the amount of gas a marketer delivers to Atlanta Gas Light with the actual amount of gas used by that marketer’s customers. Without such a process, some marketers would end up subsidizing the sales of — providing free gas to — other marketers.

(Footnote omitted.) Id. at 757. In Infinite Energy, we affirmed the superior court’s decision to affirm the commission’s adoption of a true up process that was proposed by Atlanta Gas Light and marketers in 1999. Id. at 758. In the case before us, we address the application of that true up process to a shortfall created by the bankruptcy of a marketer.

In 2008, Catalyst Natural Gas, LLC filed for bankruptcy, at a time when it had supplied less gas than its customers actually consumed, and thus, as we discussed in Infinite Energy, supra, 257 Ga. App. at 757, had sold gas to its customers that it had not tendered to Atlanta Gas Light. The superior court and the parties refer to this as a “short” position on the part of the marketer. Catalyst’s “short” position meant that, ordinarily, it would pay other marketers in a “long” position for the gas imbalance, but “[a]l-though many of the long marketers have filed proof of claims against Catalyst in bankruptcy court, as unsecured creditors it is unlikely that there will be any appreciable distribution of funds to them.”

Atlanta Gas Light and eight marketers filed with the commission a “Joint Petition of Marketers for Recovery of the Catalyst Shortfall.” In that petition, the marketers asserted that Catalyst’s “abrupt exit from the Georgia natural gas market left it owing the True-Up participants for several months’ worth of gas imbalances” and that “long” marketers were “left without any means through the approved process to recover their respective losses short of raising prices to their customers or absorbing the loss.” Arguing that other methods would impose costs directly on customers or on only some marketers, they requested that, in the exercise of the commission’s discretion, certain penalties assessed against marketers and certain profit-sharing monies be redirected from the universal service fund or USF “to resolve the Catalyst shortfall recovery issue” by paying the marketers for Catalyst’s outstanding shortfall.

After considering various responses to the petition in administrative session, the commission determined that it would temporarily divert discretionary funds from the universal service fund to Atlanta Gas Light and the marketers, to the extent of sixty percent of the Catalyst shortfall. Upon motion for reconsideration by MXenergy and one other marketer, asserting for the first time that a constitutional “takings” issue was implicated, the commission declined to reconsider its order, noting:

The true-up process was approved by the Commission, however, it was designed and implemented by agreement between the marketers and AGLC [Atlanta Gas Light]. The record in this case is clear that the marketers chose to enter the free market gas industry established in Georgia. The marketers, along with AGLC, designed and implemented a reconciliation process for nomination and delivery of natural gas. The Catalyst shortfall is the result of the competitive business decisions in a free market-based economy not the taking of private property for public use.

MXenergy appealed to the superior court, contending that the commission’s failure to compensate it for one hundred percent of its share of the Catalyst shortfall amounted to a “taking” in violation of the Georgia and United States Constitutions. U. S. Const, amend. V; Ga. Const, of 1983, Art. I, Sec. Ill, Par. I. After receiving briefs and conducting a hearing, the superior court concluded that the true up of the shortfall caused by the Catalyst bankruptcy was a consequence of that bankruptcy rather than a taking of MXenergy’s property, and further concluded that the regulatory policy decision of the commission to override its staff recommendation and allocate some funds to MXenergy from the universal service fund was supported by the evidence, was within the discretion of the commission, and was not arbitrary or capricious. We agree, for the reasons stated below.

1. We first consider MXenergy’s contention that the trial court applied an incorrect standard of review. As we noted in Infinite Energy, supra, in response to the same contention:

The appropriate standards for judicial review of agency decisions are set forth in OCGA § 50-13-19 (h), which provides:
The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Pursuant to this Code section, courts review agency findings of fact to determine whether they are supported by any evidence. And in considering agency conclusions of law, courts conduct a de novo review.

(Citations, punctuation and footnotes omitted.) Infinite Energy, supra, 257 Ga. App. at 758 (1). Here, as in Infinite Energy, we presume that the trial court knows the law and faithfully performs its duties, and we do not presume that the trial court erred in its application of the appropriate standard simply because its order does not contain the words “de novo review.” Id. at 759 (1).

The record contains no showing that the trial court applied an incorrect standard to any legal conclusions made by the commission. Infinite Energy, supra, 257 Ga. App. at 758 (1). Both at the hearing and in its order, the trial court correctly framed the issue — whether the commission’s decision violated the ‘‘takings clause” of the Georgia or United States Constitution — and explicitly considered it at length, ultimately rejecting MXenergy’s contention that a constitutional violation occurred. “Because there is no evidence in the record affirmatively showing that the court applied the wrong standard of review, we will not presume error.” (Citation and footnote omitted.) Id.

2. We next consider whether the application of the true up process to the shortfall caused by Catalyst’s bankruptcy violated the takings clauses of the United States and Georgia Constitutions. We agree with the trial court that it did not.

As the superior court noted, the concept of taking private property for public use “has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon or to inhibit laws that indirectly work harm and loss to individuals.” (Citation and punctuation omitted.) Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 484 (31 SC 265, 55 LE 297) (1911).

MXenergy argues that Louisville & Nashville does not apply here because it involved the cancellation of a private contract between two parties by subsequent statute, not the “forced appropriation of physical property by the government for its own purposes.” But this description is inapposite. The commission did not forcibly appropriate MXenergy’s property; MXenergy, as part of its voluntary participation in a regulatory scheme to which it had consented through its certification as a natural gas provider, nominated and delivered a specified amount of natural gas to the common system of Atlanta Gas Light. When another marketer later failed to fulfill its obligation to pay for the gas used by its customers, the regulatory scheme allocated the resulting costs among the remaining marketers in accordance with an established process. This is not a “forced appropriation,” but exactly the consequential injury in the course of exercising lawful power contemplated by Louisville & Nashville, supra.

Such events as the Catalyst bankruptcy cannot be said to be unanticipated or unexpected. Marketers have from time to time entered and left the Georgia market. In 2001, another marketer filed for bankruptcy and failed to pay its true up charges. The Catalyst bankruptcy and its consequences were not unique and unanticipated, but rather a foreseeable occurrence for which the parties had designed and implemented a regulatory process. The true up process itself contemplates that marketers may leave the Georgia gas market; it is therefore foreseeable that a marketer would do so in a “short” position requiring an adjustment from the remaining marketers.

MXenergy contends that Armstrong v. United States, 364 U. S. 40, 48-49 (III) (80 SC 1563, 4 LE2d 1554) (1960), demonstrates that the use of the true up process in this case amounted to an unconstitutional taking. But that decision is distinguishable on its facts. In Armstrong, the petitioners held state law materialmen’s liens on boats being constructed for the United States Navy. When the prime contractor defaulted, the United States, pursuant to its contract, took title to the uncompleted boats and materials on hand and moved them out of state, thereby extinguishing the plaintiffs liens. Id. at 41. The United States Supreme Court held that this constituted a taking of the value of the lien rights, “of which loss the Government was the direct, positive beneficiary,” rather than a mere “consequential” destruction of property. Id. at 49 (III).

Here, in contrast, the commission took no direct action to take, appropriate, or extinguish any property right of MXenergy, and it obtained no property or benefit. Instead, a well-established and legally tested regulatory process allocated the obligations of the “short” marketer, Catalyst, with respect to its customers who had used gas that was delivered by other marketers. See Infinite Energy, supra, 257 Ga. App. at 757. The process distributes those obligations among all “long” marketers, thus assuring the provision of gas to all customers using the Atlanta Gas Light distribution system. As the Georgia Supreme Court noted with reference to OCGA § 46-4-150 et seq. in Southstar Energy Svcs. v. Ellison, 286 Ga. 709, 711 (1) (691 SE2d 203) (2010), “protecting natural gas consumers ... is the most important factor to consider in any decisions to be made in accordance with this article.” id., citing OCGA § 46-4-151 (a) (4). The ultimate beneficiaries of the regulatory scheme and the true up process are not the commission or the State of Georgia, but the customers.

In other words, after the true up process had operated as intended, and after the fact, MXenergy sought to obtain from the government amounts representing its commercial losses on gas delivered to Catalyst’s customers. This is merely a “consequential” loss to MXenergy within the meaning of Armstrong, supra, and the “takings clause,” whether state or federal, is inapplicable here. “This constitutional provision will apply only if property is taken or damaged. [Cits.]” Lindsey v. Guhl, 237 Ga. 567, 572 (II) (229 SE2d 354) (1976) (applying former Ga. Const. of 1945, Art. I, Sec. III, Par. I).

3. The commission elected not to follow the recommendation of its staff to deny any payment to the affected marketers on their petition. Instead, it decided to allocate amounts from the universal service fund maintained by the commission

for the purpose of: (1) Assuring that gas is available for sale by marketers to firm retail customers within the territory certificated to each such marketer; (2) Enabling the electing distribution company to expand its facilities and service in the public interest. . . ; and (3) Assisting low-income residential consumers in times of emergency as determined by the commission, and consumers of the regulated provider of natural gas in accordance with Code Section 46-4-166.

OCGA § 46-4-161 (a). MXenergy contends that by providing these funds, the commission has conceded that the application of the true up process to the Catalyst bankruptcy was in fact a taking and that MXenergy is owed full compensation for the gas it contributed to the allocation. We disagree.

As noted above, “[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” OCGA § 50-13-19 (h). And waiver, like notice, Infinite Energy, supra, 257 Ga. App. at 759 (1), is a question of fact. Everts v. Century Supply Corp., 264 Ga. App. 218, 220-221 (590 SE2d 199) (2003) (summary judgment inappropriate where factual question of waiver presented).

Evidence was presented that, in the context of its duty to protect natural gas consumers, OCGA § 46-4-151 (a) (4), the commission intended to moderate the increase in costs resulting from Catalyst’s inability to supply its customers, to encourage marketers to “be diligent” in addressing business risks, and to prevent the affected marketers from passing on to their customers all the costs of making up Catalyst’s shortfall. From this, the superior court concluded that the decision to allocate a portion of the universal service fund to the Catalyst shortfall was “a regulatory business issue and a question of regulatory policy” that was supported by the evidence. Because some evidence supports that conclusion, MXenergy’s argument in this regard is to no avail.

The superior court correctly affirmed the commission’s decision to provide some discretionary compensation to MXenergy for its losses suffered as a result of the Catalyst bankruptcy, and did not err in concluding that the operation of the true up process did not amount to a constitutional “taking” under either the Georgia or United States Constitutions. We therefore affirm the judgment of the superior court.

Decided July 7, 2011.

Sutherland, Benjamin C. Morgan, for appellant.

Thurhert E. Baker, Attorney General, Isaac Byrd, Deputy Attorney General, Sidney R. Barrett, Senior Assistant Attorney General, Daniel S. Walsh, Assistant Attorney General, for appellees.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       Under OCGA 5-6-35 (a) (1), the review of decisions of the commission does not trigger the discretionary application process.

       To the extent that MXenergy argues that the true up process is flawed, inaccurate, “infirm,” or disadvantageous, those arguments were either addressed in Infinite Energy, supra, or are not before us because MXenergy has not contended that the true up process was itself unlawful or was erroneously applied in this case. We note that the commission has modified the true up process from time to time at the request of Atlanta Gas Light and marketers.

       See OCGA § 46-4-161.

       The Supreme Court observed in deciding Armstrong-.

      It is true that not every destruction or injury to property by governmental action has been held to be a “taking” in the constitutional sense. This case and many others reveal the difficulty of trying to draw the line between what destructions of property by lawful governmental actions are compensable “takings” and what destructions are “consequential” and therefore not compensable.
      (Citations omitted.) Id. at 48 (III).

       Indeed, since the commission ultimately decided to provide some monetary relief to the affected marketers from the universal service fund, it did not receive any benefit, but rather paid out funds for the benefit of MXenergy and other marketers.


text:
    A11A0218.
    MOSES v. JORDAN.
    (714 SE2d 262)
   Smith, Presiding Judge.

Mary Helen Moses appeals from the trial court’s order granting summary judgment in favor of her former partner, Randall Jordan, on her counterclaim against him for wrongful dissolution of their law partnership. She asserts the trial court erred in (1) granting summary judgment on the wrongful dissolution claim, (2) granting Jordan’s motion for judgment on the pleadings with regard to the dissolution date of the partnership, (3) granting a protective order to Jordan with regard to her requests for admission, and (4) ordering her to file personal property with the clerk of the court and subsequently providing it to Jordan. For the reasons set forth below, we find merit in all of these claims and reverse.

Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the record shows that in 2000, Moses began practicing law as a contract attorney for Jordan’s law firm, Jordan & Bristol (“J & B”) in Brunswick, Georgia. The majority of Moses’s work involved the “preparation of motions and briefs at the trial and appellate level.”

After Steven Bristol left the partnership in December 2002, Jordan and Moses formed a new partnership, Jordan and Moses, effective January 1, 2003. At the outset, Jordan was the rainmaker and trial lawyer, and Moses was the writer, manager, and business person. In 2004, Moses started traveling more and the day-to-day management of the law firm was delegated to two associate attorneys.

In the spring of 2006, Jordan first started thinking about ending his partnership with Moses based upon his assertion that she spent too much time in the office talking about her personal problems. In the summer of 2006, Jordan “concluded that [Moses]’s behavior in the workplace had become so divisive, unprofessional and inappropriate that [his] law practice was suffering.” In August, he asked two associate attorneys and the office manager to prepare memos outlining their experiences with Moses to assist him as he “considered whether to continue to practice law with [Moses].” Moses was not aware that Jordan asked the employees for these memos.

Based on her awareness that there were management issues in the office, Moses sent a memo to Jordan expressing her concerns about the workplace and offering to return to a more active management role, or in the alternative, return to an “of counsel” position with the firm. At a scheduled partner’s meeting on August 16, 2006, Jordan told Moses that he was “considering dissolving the partnership.” In her affidavit, Moses averred that she “had no idea that [Jordan] was considering dissolving the partnership” before the August 16 meeting. In an effort to respond to the criticisms of her behavior with other law firm employees, Moses offered “to work in an ‘of counsel’ role from my home” and Jordan “seemed receptive to that proposal.” According to Moses, they agreed to discuss the matter further in late September after completion of a scheduled trial that required Jordan to be out-of-state.

On Sunday, August 27, 2006, Jordan left a letter in Moses’s office chair before leaving town that “purported to dissolve the partnership effective August 31, 2006.” The following day, Moses sent an e-mail to Jordan informing him that she “did not agree to dissolve the partnership effective August 31, 2006,” that she wanted to resolve the partnership “appropriately,” and stated her “intention to continue to represent the firm’s clients.” Based upon a subsequent conversation between Moses’s attorney and Jordan, Moses understood that Jordan had “agreed to maintain the status quo at the law firm” until the partnership matters were resolved. Her attorney subsequently received letters from Jordan’s attorney declaring the firm dissolved no later than September 26, 2006.

Moses learned in early October that Jordan had informed the firm’s three railroad clients that the firm had dissolved. In December 2006, Moses learned that Jordan had sent out a letter announcing the formation of The Jordan Firm.

In January 2007, Jordan filed a motion for declaratory judgment in superior court asking for a declaration that the law partnership “was legally dissolved by action of the Plaintiff on September 26, 2006” and that Moses was “owed no further monies from assets of the partnership as a result of the dissolution . . . and that. . . [Moses] be required to account for any excess monies that may have been paid to her by the firm.” Moses answered and asserted counterclaims for breach of the partnership agreement, wrongful dissolution of the partnership, breach of fiduciary duty, conversion, tortious interference with contract and business relationships, defamation and disparagement, recoupment, trespass, constructive eviction, punitive damages, and attorney fees and costs of litigation under OCGA § 13-6-11.

Following discovery, Jordan moved for summary judgment on Moses’s wrongful dissolution counterclaim, which the trial court granted. The trial court also granted Jordan a protective order with regard to requests for admission served by Moses. Additionally, the trial court ordered Moses, sua sponte, to turn over to the clerk of court a portable hard drive acquired by Moses before Jordan filed suit against her.

1. Moses asserts the trial court erred by granting Jordan’s motion for summary judgment on her counterclaim for wrongful dissolution of the partnership. Because Moses has raised genuine issues of fact with regard to this claim, we agree.

The Uniform Partnership Act, OCGA § 14-8-1 et seq., provides that the dissolution of a partnership can occur in a variety of ways, including “[b]y the express will or withdrawal of any partner.” OCGA § 14-8-31 (a) (2). “Upon dissolution of a partnership the partners cease to be associated in the carrying on of the partnership. The partnership shall continue until termination pursuant to Code Section 14-8-30 and until termination the partners shall be associated in the winding up of the partnership.” OCGA § 14-8-29. Finally, “[o]n dissolution the partnership is not terminated, but continues until the winding up of the partnership affairs is completed.” OCGA § 14-8-30. The Act also provides the following remedy for wrongful dissolution:

(b) . . . [W]hen dissolution is caused wrongfully either in contravention of the partnership agreement or as a result of other wrongful conduct of a partner, the rights of the partners shall be as follows:
(1) Each partner who has not caused the dissolution wrongfully shall have:
(B) The right, as against each partner who has caused the dissolution wrongfully, to damages for such wrongful dissolution and to any other right or remedy provided for in the partnership agreement.

OCGA § 14-8-38 (b) (1) (B).

There are few Georgia cases addressing the scope of a partner’s cause of action for wrongful dissolution under the Uniform Partnership Act. In the seminal case, this court followed the reasoning of the California Supreme Court and held:

Any partnership agreement includes, as a matter of law, an agreement for each partner to act in “the utmost good faith” toward the other partner. See OCGA § 23-2-58. [Cit.] The power of a partner to dissolve the partnership at will, like any other power held by a fiduciary, must be exercised in good faith. A partner may not freeze out a co-partner and appropriate the business to his own use. A partner may not dissolve a partnership to gain the benefits of the business for himself, unless he fully compensates his co-partner for his share of the prospective business opportunity. Even though a partner has a right to dissolve the partnership, if, however, it is proved that the partner acted in bad faith and violated his fiduciary duties by attempting to appropriate to his own use the new prosperity of the partnership without adequate compensation to his co-partner, the dissolution would be wrongful and the partner would be liable as provided by the section of the Uniform Partnership Act defining the rights of partners upon wrongful dissolution for violation of the implied agreement not to exclude the other partner wrongfully from the partnership business opportunity. [Cit.]

(Punctuation omitted.) Arford v. Blalock, 199 Ga. App. 434, 437-438 (6) (405 SE2d 698) (1991), citing Page v. Page, 55 Cal. 2d 192, 196-198 (359 P2d 41) (1961).

In Wilensky v. Blalock, 262 Ga. 95 (414 SE2d 1) (1992), the Georgia Supreme Court endorsed “the reasoning of the [Georgia] Court of Appeals,” in Arford, supra, and affirmed. Id. at 98-99 (3). It held that a viable claim for wrongful dissolution of the partnership existed based upon a partner’s conduct in physically excluding a partner “from the partnership’s place of business” and keeping “for himself all the partnership’s material assets and continuing income from its mortgage origination business.” Id. At the time of the wrongful dissolution, the partners in Arford had been in negotiations to dissolve the partnership, which included “discussing the amount it would take for one of them to buy out the other’s interest in the partnership.” Id. at 96-97.

More recently, this court affirmed a trial court’s award of damages for wrongful dissolution of a partnership when a former partner in a check-cashing business closed the business while his partner was traveling, sent a letter terminating the business, occupied a new space near the old business, actively solicited customers away from his former partner, appropriated profits to his own use, and failed to compensate his former partner in any way. Asgharneya v. Hadavi, 298 Ga. App. 693, 697-698 (680 SE2d 866) (2009).

Based on these decisions, Moses argues she can avoid summary judgment on her wrongful dissolution claim if she can demonstrate that genuine issues of fact exist as to whether Jordan “froze [her] out” and appropriated the business to his own use or dissolved the partnership to gain the benefits of the business for himself without compensating her for a prospective business opportunity. Moses overlooks another crucial element of a wrongful dissolution claim: the partner’s decision to dissolve must be wrongful. Stated differently, the power to dissolve “must be exercised in good faith.” Arford, supra, 199 Ga. App. at 438. Compare Chaney v. Burdett, 274 Ga. 805, 807 (2) (560 SE2d 21) (2002) (partner’s general duty to act in utmost good faith “continues until the affairs of the partnership are wound up” and a breach of this duty after dissolution can give rise to a claim for breach of fiduciary duty).

With regard to Jordan’s state of mind at the time he decided to dissolve the partnership, Moses points to his conduct in keeping an entire $180,000 fee for himself after depositing it into the partnership account. The record shows that in December 2005, Jordan settled a case during a mediation for which he earned an $180,000 contingent fee. When Jordan received the settlement check three months later, it was made payable to Jordan and Moses. He instructed the firm’s bookkeeper to deposit it into the firm account with a handwritten note explaining:

This case pre-dated the formation of Jordan & Moses and MH and I have agreed that 100% of the fee goes to me. In that regard, I have written myself a check for $180,000 out of the J & M account. Unfortunately, we’re having to send that money to the IRS. But, at least we have it to send! Please have this check deposited ASAP

In his deposition, Jordan testified that Moses knew that he would deposit the check into the firm’s bank account and that they had an agreement that he would keep the entire fee.

Moses averred in her affidavit:

I did not agree that the [case was] outside the scope of our partnership agreement, nor did I ever agree that I would not be entitled to receive fees generated from the firm’s representation of [the client]. ... I was aware of the work being performed by . . . Jordan and other employees of Jordan and Moses. ... I even personally participated in the firm’s handling of [the] matter[.] . . .

Although Moses was aware that the case had settled in late 2005, she stated:

I did not know when the $180,000 came in. I did not know the amount of $180,000.1 did not know that he took it right back out. I knew nothing of that until in September after all of this happened I was looking at the P[rofit] and L[oss] and I was trying to get myself current because my quarterly tax payments were due.

Moses also produced a copy of a partnership agreement signed by Jordan that required him to share the net profits of the firm with her equally.

Based upon Moses’s evidence that Jordan secretly kept the proceeds of this check for himself in March 2006 and his testimony that he first contemplated dissolving the firm in the spring of 2006, we find that Moses has presented at least one genuine issue of material fact with regard to her wrongful dissolution claim.

2. Moses contends the trial court erred by determining as a matter of law based upon the parties’ pleadings alone that the partnership “was lawfully dissolved in September 2006.” We agree.

The record shows that Moses moved for partial judgment on the pleadings with regard to her claim that Jordan breached the express terms of the partnership agreement by unilaterally dissolving it in September 2006. Jordan filed a cross-motion to dismiss asking the court to find as a matter of law that the partnership “was legally dissolved by action of the Plaintiff on September 26, 2006.” Jordan filed a second motion to dismiss regarding Moses’s counterclaim for tortious interference with contract and business relationships.

On December 16, 2008, the trial court issued a written order denying Moses’s motion for partial judgment on the pleadings, and granting Jordan’s motion to dismiss Moses’s counterclaim in tort. The trial court’s order does not reference Jordan’s separate motion for judgment on the pleadings with regard to the date the partnership was dissolved.

On January 7, 2009, the trial court noted in a discovery order that “since the Court has found that the partnership was lawfully dissolved in September 2006, each party shall disclose to the other the gross revenues for their respective practices for 2007.” (Emphasis supplied.) Moses contends that the trial court erred by making this finding for the first time in a discovery order, particularly since there was a dispute in the pleadings with regard to the dissolution date of the partnership. The record shows that at the time of the trial court’s discovery ruling, the parties had not yet submitted any evidence to the trial court regarding the date of the dissolution.

The record shows that Jordan’s complaint for declaratory judgment against Moses asserts that he notified her on August 27, 2006, that he intended to dissolve their law partnership. According to Jordan’s complaint, “the partnership remained in operation until September 26, 2006, when it was finally dissolved by [Jordan].” In her verified answer, Moses denied that the partnership was dissolved on September 26, 2006. In her counterclaim, she asserted that the partnership billed clients for work performed by her in September 2006 and that she took her last partnership draw in October 2006.

It appears that at the time of its ruling on the motion for protective order, the trial court believed it had resolved Jordan’s pending motion for judgment on the pleadings with regard to the lawful dissolution of the partnership in September 2006 in Jordan’s favor. Based upon the record before us, however, the protective order contains the trial court’s only ruling on the issue, and we will construe it as the grant of Jordan’s motion for judgment on the pleadings.

“[A] motion for judgment on the pleadings should be granted only where the pleadings disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.” (Citations and punctuation omitted.) Kelley Mfg. Co. v. Martin, 296 Ga. App. 236, 237 (674 SE2d 92) (2009). In this case, the pleadings demonstrate disputed facts with regard to the operative date of the partnership’s dissolution. Consequently, the trial court erred by granting Jordan’s motion based solely upon the pleadings before it. Wright v. Swint, 224 Ga. App. 417, 418-419 (1) (480 SE2d 878) (1997) (reversing trial court’s grant of motion to dismiss because trial court improperly decided issue of fact).

3. In an apparently related — although confusing — claim of error, Moses asserts the trial court erred by concluding as a matter of law that “the mutual consent provision in the partnership agreement violated public policy.” Moses apparently takes issue with one statement made in the trial court’s order denying her motion for judgment on the pleadings with regard to her claim that Jordan breached the partnership agreement. She does not assert in her enumeration of error, however, that the trial court erred in denying her motion for judgment on the pleadings. Instead, she asserts the trial court erred by using its public policy finding to conclude that Jordan lawfully dissolved the partnership on September 26, 2006. Based upon our holding in Division 2, the specific error asserted here is moot.

4. Moses asserts the trial court erred by granting Jordan’s request for a protective order with regard to her second request for admissions.

In this state, the determination of the permissible extent of discovery and use of protective orders to insure that a party’s discovery efforts are kept within that permissible ambit are matters which are generally addressed to the discretion of the trial judge. However, this must be a sound and legal discretion based on evidence and a showing of good cause.

(Citation and punctuation omitted.) DeLoitte Haskins & Sells v. Green, 187 Ga. App. 376, 379 (2) (370 SE2d 194) (1988).

The record shows that Moses served a second request for admissions asking Jordan to admit that 327 specific credit card charges spanning a three-year period were not ordinary and necessary business expenses, that 58 expert witness invoices for services performed before the formation of the partnership were improperly paid from partnership funds, that the partnership made payments on three personal loans taken out by Jordan before the formation of the partnership, that nine specific personal expenses were paid out of partnership funds, and that Jordan or his agents removed files and programs from Moses’s personal computer without her knowledge.

Jordan moved for a protective order on the grounds that the

requests were designed merely to annoy, embarrass and oppress Plaintiff and to cause him undue burden and expense. Furthermore, . . . defendant has in a wholesale fashion and without any basis attempted to shift the burden of proof on Defendant’s counterclaim and place upon the Plaintiff the burden of substantiating legitimate business expenses covering a substantial period of time.

In his supporting brief, Jordan argued with regard to the credit card charges that “Defendant has used no discretion in making the requests and instead included numerous charges that were for obvious ordinary and necessary business expenses. ...” He asserted that the remaining requests “demonstrate bad faith on the part of the defendant” because she was “fully aware that all expert witness fees were properly paid . . . , that the lines of credits were utilized for . . . firm business, and that the [alleged personal expenses] were routinely paid out of [partnership] funds.” After reviewing the first 30 requests to admit with regard to the credit card charges, Jordan determined that 28 were legitimate expenses and two were for alleged charges for which he could not find any documentation. Based on his review of the first 30 requests, Jordan asserted that Moses could not have made the numerous requests in good faith. Jordan supported the claims made in his brief with an affidavit.

In an affidavit filed in opposition to Jordan’s motion for protective order, Moses averred: “I took each American Express bill and examined it carefully and only included those charges which I found suspicious.” Examples provided by Moses include “charges of over $11,000 from a Ritz Carlton hotel in Jamaica for lodging December 22-29, 2004, [and] a charge of $361.34 from Bennie’s Red Barn, a local restaurant, on New Year’s Eve. . . .” She explained that she requested more information about these and other charges because “they appeared to be holiday entertainment for Mr. Jordan’s family and friends” or because it seemed unlikely that Jordan would be in the location for business or would be billing a client to spend the night in a hotel close to his home. Based on her review of one monthly bill, she believed that her requests accounted for “less than 10% of the total number of charges on the firm’s credit card statements.” She sought the information in the request to determine whether she received all the proceeds from the firm to which she was entitled and whether she should be liable for the firm’s debts as alleged in Jordan’s complaint.

During the hearing on the motion for protective order, Moses’s counsel pointed out that because Jordan sought a ruling from the court that Moses was owed nothing further from the partnership, Moses was entitled to serve requests for admissions to show that Jordan used the

bank account and this credit card of the firm as his own personal account to pay for his personal family expenses, personal family Christmas trips to Jamaica, . . . and expects Ms. Moses to share in that expense. . . . He says in response that she knew he was doing all this and that she approved of that. Well, that is hotly contested. She did not know that he was using her money to pay for his excesses and his lifestyle. And she certainly didn’t agree to it. . . . [T]he requests to admit are properly set forth to establish the evidence in support of or in opposition to Ml claims and defenses of either party.

Jordan’s attorney countered that the number of requests standing alone “show a burden.”

After taking the matter under advisement, the trial court issued a written order concluding that “Defendant’s massive request for admissions is burdensome and oppressive, and Plaintiffs request for a protective order with respect to them is granted. Defendant is entitled to depose Plaintiff to explore his knowledge of the matters raised in the requests.” The trial court made no finding, however, with regard to whether Moses asserted the requests in bad faith or for the purpose of harassment.

While it is true that a trial court has broad discretion with regard to entering discovery orders, “this discretion must be based on sound legal analysis with an eye to promoting the purpose of discovery and limiting its abuse. Discovery should not be prohibited where the effect is to frustrate that purpose and prevent legitimate discovery.” (Citations and footnotes omitted.) International Harvester Co. v. Cunningham, 245 Ga. App. 736, 739 (1) (538 SE2d 82) (2000).

Discovery is an integral and necessary element of our civil practice. Wide latitude is given to make complete discovery possible. The broad purpose of the discovery rules, under the Civil Practice Act, is to enable the parties to prepare for trial so that each party will know the issues and be fully prepared on the facts. Discovery is specifically designed to fulfill a two-fold purpose: issue formulation and factual revelation. The use of the discovery process has been held to be broadly construed.

(Citations, punctuation and footnote omitted.) Id. at 738-739 (1). Requests for admission, in particular, are designed “with a view toward establishing uncontested facts that go to the merits of the case.” (Citation and punctuation omitted.) Mote v. Tomlin, 136 Ga. App. 616, 617 (1) (222 SE2d 57) (1975). In addition, it is well settled that

[protective orders should not be entered when the effect is to frustrate and prevent legitimate discovery. Such are intended to be protective not prohibitive — and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the discoverer’s action, the court should not intervene to limit or prohibit the scope of pre-trial discovery.

(Citations and punctuation omitted.) Osborne v. Bank of Delight, 173 Ga. App. 322, 324 (2) (326 SE2d 523) (1985).

In this case, the trial court issued the protective order because the requests to admit were “burdensome and oppressive” based upon the sheer number standing alone. The record before the trial court, however, did not show “substantial evidence of bad faith or harassment,” id., on the part of Moses in issuing the requests for admission. Her requests, while numerous, were specific and designed to narrow the issues in the case. They consisted of simple and straightforward recitations of fact that could be readily admitted or denied. We therefore conclude that the trial court abused its discretion by granting a blanket protective order based solely upon the number of requests in this particular case. See Mead Corp. v. Masterack, 243 Ga. 213, 215 (253 SE2d 164) (1979) (trial court abused discretion by granting order limiting discovery). Compare Parks v. Multimedia Technologies, 239 Ga. App. 282, 296-297 (6) (520 SE2d 517) (1999) (evidence before trial court authorized finding of party’s bad faith in seeking discovery).

5. Moses contends the trial court erred in confiscating from her possession her only portable hard drive copy of the law firm’s server and giving it to Jordan. The record shows without dispute that Moses obtained the portable hard drive months before Jordan filed his lawsuit against her. The trial court ordered her to file it with the clerk sua sponte in response to Jordan’s motion for a more limited protective order.

Decided July 7, 2011

Martenson, Hasbrouck & Simon, Peter V. Hasbrouck, Mark E. Robinson, for appellant.

Blasingame, Burch, Garrard & Ashley, Gary B. Blasingame, Robert P. Killian, for appellee.

The trial court’s authority with regard to protective orders under OCGA § 9-11-26 (c) is limited to rulings in discovery matters and in response to motions to compel. A trial court may under the discovery rules order a party to “produce and permit [a] party ... to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope [of discovery]. ...” (Emphasis supplied.) OCGA § 9-11-34 (a) (1). But nothing in the Civil Practice Act provides authority for a trial court to confiscate the personal property of a party through a protective order under the guise of determining the scope of permissible discovery. See OCGA §§ 9-11-26 (c) through 9-11-37. Compare OCGA § 44-12-151 (outlining remedies available to plaintiff in action to recover personal property); Taylor v. Powertel, 250 Ga. App. 356, 358 (2) (551 SE2d 765) (2001) (summarizing causes of action for conversion and statutory trover in Georgia).

In this case, the trial court abused its discretion by utilizing a discovery order to force Moses to turn over personal property in her possession, particularly in light of the trial court’s subsequent determination that there was no evidence that it had been “obtained by [Moses] in bad faith.”

Judgment reversed.

Dillard and McFadden, JJ., concur.

       Because the issue of damages is not before us in this appeal, we express no opinion as to the proper measure of damages for Moses’s wrongful dissolution claim.

       We express no opinion as to whether evidence presented hy the parties after the trial court’s ruling would warrant a finding on summary judgment that the dissolution date for the law firm was September 26, 2006. We note that the Uniform Partnership Act draws a distinction between the dissolution of a law firm, its continuation after dissolution during the winding-up period, and its termination after the winding-up process is completed. See OCGA §§ 14-8-29, 14-8-30. and 14-8-31.

       Courts from other jurisdictions have declined to grant protective orders based on the number of requests for admissions standing alone. See, e.g., Synthes (U.S.A.) v. Global Medical, 2006 U. S. Dist. LEXIS 87151 (E.D. Pa., Nov. 29, 2006) (declining to find 622 requests to admit oppressive); McCloud v. Board of Geary County Commrs., 2008 U. S. Dist. LEXIS 61612 C. (slip op. at 8) (D. Kan., Aug. 11, 2008) (rejecting argument that party abused use of request for admission simply because of the number of requests (424) it served). While these unpublished opinions are not controlling, we find the reasoning persuasive “[bjecause Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure.” McKesson HBOC v. Adler, 254 Ga. App. 500, 503 (1), n. 4 (562 SE2d 809) (2002).

       Our holding in this case is necessarily limited to the particular requests made in the particular case before us. The permissible scope of discovery, by its very nature, must be determined on a case-by-case basis.


author: Blackwell, Judge.

text:
    A11A0362.
    KITCHEN INTERNATIONAL, INC. v. EVANS CABINET CORPORATION.
    (714 SE2d 139)
   Blackwell, Judge.

Evans Cabinet Corporation sued Kitchen International, Inc. for breach of contract and unjust enrichment in the Superior Court of Laurens County. After Kitchen failed to file a responsive pleading, the court below entered a default judgment against it in the amount of $284,378.81, plus interest and costs. Kitchen now appeals from this judgment, contending that it was never properly served with process and that the court below erred when it awarded damages and interest without an evidentiary hearing. We see no error in the finding of the court below that Kitchen was served with process. We conclude, however, that the court could not properly award damages and prejudgment interest to Evans without an evidentiary hearing, so we vacate the judgment below in part and remand for the court to conduct such a hearing.

Evans, a Georgia corporation, is a manufacturer and wholesaler of custom cabinetry. Kitchen is a distributor and supplier of cabinetry, which it often supplies for use in construction projects throughout the United States. In its complaint, Evans alleged that it entered into a contract with Kitchen whereby Evans would manufacture cabinetry and other materials for Kitchen to supply for use in residential construction projects, that Evans manufactured and delivered the cabinetry and materials as the contract required, and that Kitchen failed to pay Evans for these items. Evans sought damages in the amount of $284,378.81, as well as interest. Evans did not, however, attach a copy of the contract or any invoices or other documents establishing the amount it was owed, nor did it allege specifically that the damages it sought were fixed by the terms of the contract or how the damages properly should be calculated.

Although Kitchen appears to maintain its principal place of business in Montreal, Canada, it is a Louisiana corporation and has registered an agent for service of process in Louisiana. It apparently has not registered, however, to do business in Georgia, and it has no registered agent here. Accordingly, after Evans filed suit in Laurens County, it endeavored to serve process upon Kitchen under the so-called “Long-Arm” Statute, OCGA § 9-10-90 et seq. To that end, Evans obtained the appointment of a special process server to serve Kitchen’s registered agent in Louisiana. On October 19, 2009, Evans filed an affidavit of attempted service by the appointed special process server, in which the process server attested that, when he attempted service on Kitchen’s registered agent in Louisiana, he discovered that the address registered with the Louisiana Secretary of State was only a post office box. The process server represented that he had been unable to serve Kitchen through its registered agent or “through any other agent of the company.”

On November 16, 2009, another process server served the summons and complaint on the Louisiana Secretary of State as the statutory agent of Kitchen, and Evans filed an affidavit of service on November 23. The Louisiana Secretary of State advised Evans’s lawyers that his office had mailed copies of the suit to Kitchen on November 17, addressed both to the Louisiana address of Kitchen’s registered agent and to Kitchen’s office in Montreal. Both copies were returned to his office by November 24, the word “REFUSED” having been written on each envelope. The Secretary of State mailed the suit again to the Louisiana address, but this mailing was returned on February 4, 2010, bearing an “UNCLAIMED” stamp. Evans moved for entry of a default judgment against Kitchen on February 18, 2010.

Six days later, Kitchen suddenly appeared and removed the lawsuit to federal court. In its notice of removal, Kitchen asserted that, on February 22, 2010, it had received copies of the complaint and motion for entry of default judgment from Evans’s lawyers, who had mailed these filings to Kitchen’s office in Canada. Kitchen claimed that “February 22, 2010, was the first date of receipt by [Kitchen], through service or otherwise, of a copy of the [complaint].” Evans filed a motion to remand the case, asserting that the removal petition was untimely because it was not filed within 30 days after Kitchen was served with the complaint. Following a hearing, the federal district court granted that motion and remanded the case to the court below. In its order, the district court found that serving the Louisiana Secretary of State was effective to serve Kitchen. The district court acknowledged that, as a general rule, service of a statutory agent does not trigger the running of the 30 days in which a defendant may remove a case to federal court and that this period ordinarily begins to run only when service is made upon the defendant or its agent-in-fact. But the district court declined to apply this general rule to Kitchen, explaining that it was Kitchen’s own fault in failing to maintain an agent in Louisiana to receive service that precluded service from being accomplished in the usual way.

The case returned to the Laurens County Superior Court on August 2, 2010, and the next day, the court below entered a default judgment against Kitchen. Concluding that the complaint was one for liquidated damages and interest, the court awarded $284,378.81 in damages and unspecified interest to Evans without holding any evidentiary hearing on damages. Kitchen now appeals from the judgment of default.

1. We first consider the claim that Kitchen was never served with process. A defendant who disputes proper service bears the burden of showing a failure of service, and we review a determination by a trial court that a defendant was properly served for abuse of discretion only. City of East Point v. Jordan, 300 Ga. App. 891, 891-892 (1) (686 SE2d 471) (2009). The court below found that Kitchen was properly served on November 16, 2009, the date that a process server delivered a copy of the complaint and summons to the Louisiana Secretary of State. We see no abuse of discretion in the finding of proper service.

Kitchen does not dispute that, as a nonresident corporation that transacted business in Georgia, it is subject to the jurisdiction of Georgia courts pursuant to OCGA § 9-10-91 (1). It argues, however, that even under the Long-Arm Statute, service cannot be accomplished by serving the Louisiana Secretary of State as the statutory agent for Kitchen. We disagree.

Where the Long-Arm Statute applies, service can be made “outside the state in the same manner as service is made within the state.” OCGA § 9-10-94. Kitchen says that it could only be served in Louisiana in the manner prescribed for service within Georgia by OCGA § 9-11-4 (e) (1). This subsection, however, applies only to service of a “corporation incorporated or domesticated under the laws of this state or a foreign corporation authorized to transact business in this state.” OCGA § 9-11-4 (e) (1). And because Kitchen has not shown that it is a corporation incorporated or domesticated under the laws of Georgia, because it points to no evidence that it obtained the requisite certificate of authority to transact business in this state from the Georgia Secretary of State, and because it does not dispute that it is a nonresident subject to the Long-Arm Statute, we must conclude that Kitchen is not “authorized to transact business in this state,” as that phrase is used in OCGA § 9-11-4 (e) (1). See OCGA § 14-2-1501 (a) (to be authorized to transact business in Georgia, a foreign corporation must obtain a certificate of authority from the Secretary of State); OCGA § 9-10-90 (to be considered a nonresident to which the Long-Arm Statute applies, a corporation must be neither a Georgia corporation nor a foreign corporation authorized to do or transact business in Georgia). Accordingly, OCGA § 9-11-4 (e) (1) does not govern service of process in this case.

Instead, the proper manner of service is that described in OCGA § 9-11-4 (e) (7). This subsection provides, in relevant part, that service can be made by “delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.” Here, Evans was unable to serve Kitchen’s registered agent because the address on file with the Louisiana Secretary of State represented nothing more than a mail drop. The question, therefore, is whether the Louisiana Secretary of State is an agent authorized by Louisiana law to accept service on behalf of Kitchen in these circumstances. See Vibratech, Inc. v. Frost, 291 Ga. App. 133, 140-142 (1) (b) (661 SE2d 185) (2008) (where a Delaware corporation was not authorized to conduct business in Georgia, court examined whether service was made on a person authorized under Delaware law to accept service). We find that the Louisiana Secretary of State is an agent so authorized by law.

Under the Louisiana Code of Civil Procedure, when a process server attempting to serve a corporation certifies that, despite due diligence, he cannot locate the registered agent of a corporation, any officer or director of the corporation, or any employee of the corporation at a place where the business of the corporation is regularly conducted, “then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on corporations. The secretary of state shall forward this citation to the corporation at its last known address.” La. Code Civ. Proc., Art. 1261, 1262. In this case, Evans filed the affidavit of a process server, who stated that, despite his exercise of due diligence, he had been unable to locate and serve the registered agent of Kitchen or any other agent of the corporation. Evans then filed a separate affidavit of service, stating that process had been served upon the Louisiana Secretary of State. Once the Louisiana Secretary of State satisfied his statutory obligation to forward a copy of the summons and complaint to the two addresses known to his office for Kitchen — the address of the registered agent and the address of Kitchen’s office in Canada — service was effective. Louisiana Truck Parts, Inc. v. W & W Clarklift, Inc., 444 So2d 733, 734 (La. App. 1984). Cf. American Consolidated Svc. Corp. v. Nationwide Mut. Ins. Co., 156 Ga. App. 193, 195 (1) (273 SE2d 898) (1980) (under Georgia law, where service may be made upon the Secretary of State, service is effective once that office forwards a copy of the summons and complaint to the corporate defendant).

Despite Kitchen’s arguments to the contrary, Georgia law does not require that a defendant have actual notice of a lawsuit for service to be proper. Vibratech, 291 Ga. App. at 142 (1) (b). This is particularly true where, as here, any fault for an alleged failure to receive actual notice rests with the party itself. Id. Here, Kitchen did not receive a copy of the summons and complaint because it did not register an address with the Louisiana Secretary of State at which its registered agent could be found. Kitchen also declined to accept any of the three copies of the summons and complaint that the Louisiana Secretary of State mailed to it. Accordingly, we conclude that Kitchen was properly served no later than November 17, 2009, the date on which the Louisiana Secretary of State forwarded copies of the summons and complaint to Kitchen, and the determination that Kitchen was properly served, therefore, is no abuse of discretion.

2. We next consider whether the trial court erred when it found that this case involves liquidated damages and awarded Evans all the damages it requested, without affording Kitchen a hearing on damages. Because this question is a legal one, we review the record de novo and apply a plain legal error standard of review. GMC Group, Inc. v. Harsco Corp., 304 Ga. App. 182, 182 (695 SE2d 702) (2010). For damages to be liquidated, the damages must be in a certain and fixed amount, “a sum which cannot be changed by proof; it is so much or nothing.” Id. at 183 (1) (citation and punctuation omitted). But a bare allegation that an amount certain is due and owing under a contract for goods or services is insufficient to render the damages liquidated for purposes of default. Id. See also Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 26-28 (2) (351 SE2d 218) (1986). For the court to conclude upon default that damages are liquidated and dispense with an evidentiary hearing on damages, the plaintiff must have alleged facts sufficient to show how the amount of damages claimed was calculated, or the plaintiff must attach to his complaint the relevant contract, invoices, or other documents demonstrating that the plaintiff is due the amount claimed. Hazlett, 181 Ga. App. at 25. Put another way, both the amount of the damages and that the amount is fixed and certain must be ascertainable from the complaint and the documents attached to it, and not merely by reference to allegations of bare conclusions. See id. at 27-28 (2) (for damages to be liquidated, the trial court must be able to ascertain “the amount due under the terms of the agreement without reference to evidence outside the pleadings”) (citation and punctuation omitted); Sellers v. Nodvin, 207 Ga. App. 742, 746-747 (3) (429 SE2d 138) (1993). The mere fact that a defendant defaulted upon a complaint seeking damages in an amount certain does not make the damages liquidated. Carter v. Ravenwood Dev. Co., 249 Ga. App. 603, 605 (2) (549 SE2d 402) (2001). “Otherwise every case where a specific amount is stated in the complaint as due and owing would be turned into a liquidated amount by the default.” Sellers, 207 Ga. App. at 747 (3) (citation and punctuation omitted).

The complaint in this case does not allege that the contract between Evans and Kitchen obligates Kitchen to pay Evans an amount certain. Instead, the complaint simply alleges that Evans contracted with Kitchen to manufacture and provide cabinetry and other materials, that Evans provided those items to Kitchen, and that Kitchen failed to remit the amounts owed for those items. Evans did not attach a copy of the contract to the complaint, nor did it allege the precise terms of the contract relating to either the price of the specific cabinetry and other materials or other elements of the contract price, if any.

It may be that Evans’s claims in this case are, in fact, claims for liquidated damages. But the complaint does not show that they are, and for this reason, the court below cannot just dispense with the need for Evans to prove its damages. Accordingly, the court erred when it concluded upon default that only liquidated damages were involved and awarded damages without an evidentiary hearing. See GMC Group, 304 Ga. App. at 183 (1) (trial court erred in finding that complaint sought liquidated damages where, even though plaintiff attached a copy of the parties’ rental contract to the complaint, because that contract was “nearly illegible,” failed to identify the equipment rented, and did not include the rental rate or term); BellSouth Advertising & Publishing Corp. v. Kingdom Adventures, LLC, 277 Ga. App. 495, 496 (1) (627 SE2d 125) (2006) (complaint did not state a claim for liquidated damages where plaintiff attached copies of the contracts to the complaint and asserted a specific amount due thereunder, “but did not set forth the number of months for which it was owed payment under the contracts at issue, nor did it tender its statements totaling the amount of its damages”); Carter, 249 Ga. App. at 606 (2) (trial court erred in finding that plaintiffs damages claim was liquidated because, even though the complaint sought specific amounts for lumber and supplies, labor, and other materials, it “did not attach copies of any invoices or other documents evidencing the amounts allegedly due, nor did it attach copies of the parties’ agreement”).

Decided July 7, 2011.

Trotter Jones, James B. Trotter, William A. Trotter III, for appellant.

3. Under Georgia law, prejudgment interest is allowed only on liquidated claims. See Scovill Fasteners, Inc. v. Northern Metals, Inc., 303 Ga. App. 246, 252 (3) (692 SE2d 840) (2010); OCGA § 7-4-15. As discussed in Division 2, however, Evans’s complaint does not show that its claims are for liquidated damages, because the complaint does not contain sufficient information to allow the trial court to ascertain the amount owed under the contract and that the amount is fixed and certain. If the evidence at an evidentiary hearing on remand shows that there is a bona fide dispute as to the amount Kitchen owes under the contract, then Evans’s claim is not liquidated, and it is not entitled to prejudgment interest. See Those Certain Underwriters at Lloyds, London v. DTI Logistics, Inc., 300 Ga. App. 715, 722 (4) (686 SE2d 333) (2009). On the other hand, if the evidence shows that the sum owed Evans under the contract is fixed and certain, Evans would be entitled to prejudgment interest on that amount at the legal rate. Id. See also OCGA § 7-4-15.

For the reasons set forth above, we affirm the determination of the trial court that Kitchen is in default and that Evans is entitled to a default judgment. We vacate the judgment, however, and remand for an evidentiary hearing on the question of damages.

Judgment affirmed in part and vacated and remanded in part.

Barnes, E J., and Adams, J., concur.

McKenna, Long & Aldridge, James R. Evans, Charles K. Reed, R Michael Freed, for appellee.

       We have seen some references to litigation apparently pending between Evans and Kitchen in other jurisdictions. But in this appeal, Kitchen does not invoke res judicata, collateral estoppel, judicial estoppel, or any other doctrine of preclusion. For this reason, the happenings in any other such litigation have no bearing on our disposition of this appeal, and we say nothing more today about such things. Kitchen’s motion to file a supplemental brief about other litigation pending between the parties is hereby denied, and Evans’s motion to strike Kitchen’s supplemental filing is denied as moot.

       On August 20, 2009, four days before it filed this lawsuit, Evans’s lawyer wrote to a lawyer representing Kitchen in a separate case, enclosed a copy of the complaint soon to be filed in Georgia, and asked that Kitchen sign an acknowledgment of service and waive formal service of process. The letter noted that, if Kitchen did not return the acknowledgment form by September 11, Evans “will proceed to have [the] Complaint personally served upon Kitchen International by a process server.” Kitchen’s lawyer responded in a letter dated September 1, 2009, in which he informed Evans that Kitchen would not waive service and “anticipates original process to be served upon them.”

       According to Kitchen’s notice of removal, the mailing was improperly addressed and was delivered, therefore, to another suite in the building in which Kitchen maintained an office. The recipient of the mailing apparently then slid it under the door of Kitchen’s office, where Kitchen’s president found it.

       This subsection governs service “[i]n all other cases.” Other than OCGA § 9-11-4 (e) (1), Kitchen identifies no other law providing for a means of service that might apply in this case. Since it appears that nothing else applies, OCGA § 9-11-4 (e) (7) must apply.

       We note that Kitchen does not assert that these copies were undelivered or undeliverable as addressed.

       Even if we viewed Evans’s complaint as an action on an open account, as Evans’s brief now contends we should, we would not reach a different conclusion. This is because the same standard for establishing liquidated damages applies to an open account claim, where the plaintiff ordinarily must attach any invoices “to the complaint showing the goods shipped, the price, and the balance due” to render the damages liquidated for purposes of default. Imex Int'l., Inc. v. Wires Engineering, 261 Ga. App. 329, 331 (1) (a) (583 SE2d 117) (2003).

       In its motion seeking a supersedeas bond, Evans argued that the appropriate interest rate was the statutory rate applicable to commercial accounts, found in OCGA § 7-4-16, and that, applying that interest rate, it was entitled to prejudgment interest in the amount of $234,697.72. Under Georgia law, however, “a recovery of pre-judgment interest pursuant to OCGA § 7-4-16 requires a pre-trial invocation of the applicability of that provision.” Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 256 (2) (342 SE2d 694) (1986). Because the complaint says nothing about OCGA § 7-4-16 or whether the contract at issue provides for a certain, identified interest rate, it appears that Evans would be entitled to prejudgment interest only at the applicable legal rate. Id. See also Spears v. Allied Engineering Assoc., Inc., 186 Ga. App. 878, 878 (368 SE2d 818) (1988). The court below may address this issue on remand.


text:
    A11A0365.
    DAN WOODLEY COMMUNITIES, INC. et al. v. SUNTRUST BANK.
    (714 SE2d 145)
   Smith, Presiding Judge.

Dan Woodley and Dan Woodley Communities, Inc. (“Woodley”) appeal from the superior court’s confirmation of a foreclosure sale of a condominium development, contending an error in the advertisement of the sale requires reversal. This case is directly controlled by our earlier decision in Southeast Timberlands v. Security Nat. Bank, 220 Ga. App. 359 (469 SE2d 454) (1996), in which the debtor similarly sought to invalidate a confirmation due to an error in the advertisement; we therefore find no error and affirm.

In its sole enumeration of error, Woodley contends the foreclosure should not have been confirmed because, while the advertisement contained the correct legal description of the entire property foreclosed upon, it did not note that six or possibly seven condominium units were sold by Woodley before foreclosure. From this, Woodley contends that the legal description in the advertisement was legally deficient and the confirmation must therefore be invalidated. This is incorrect for two reasons.

OCGA § 44-14-162 (a) states that a foreclosure sale is not valid “unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriffs sales in the county in which such real estate or a part thereof is located.” OCGA § 9-13-140 (a), governing judicial sales, requires that the advertisement include “a full and complete description of the property to be sold, making known the names of the plaintiff, the defendant, and any person who may be in the possession of the property. In the case of real property, such advertisement shall include the legal description of such real property. . . .” OCGA § 44-14-162 (a) additionally provides that, if any transfer or conveyance to a new owner and assumption by the new owner of the debt has occurred, the advertisement “should also include a recital of the fact,” but also provides: “Failure to include such a recital in the advertisement, however, shall not invalidate an otherwise valid foreclosure sale.” There is “no legal requirement” that other deeds affecting the property be included in the advertisement. Scroggins v. Harper, 138 Ga. App. 783, 785 (2) (227 SE2d 513) (1976) (first priority security deed not in advertisement but announced at sale).

The legal description here, correct in itself, gave both the metes and bounds and the book and page number of the plat showing the property, and it included the notation that it was sold “subject to the following items which may affect the title to said property,” including liens, special assessments, “all restrictive covenants, easements, rights of way and any other matters of record superior to said Security Deed.” And, as counsel noted, because the advertisement must run for four weeks, OCGA § 9-13-140 (a), it cannot account for very recent sales of individual condominium units, although none were shown here. The excepted units were identified on the courthouse steps at the time of the sale. Counsel testified that it was his practice, as he did in this case, to reiterate at the cry of the sale that the property was “as advertised less and excepting any matters of record.”

Second, and more importantly, this case is controlled by our decision in Southeast Timberlands, supra:

If a foreclosure advertisement is not defective as a matter of law, defects in it will prevent confirmation only if the factfinder determines those defects “chilled” bidding and caused an inadequate selling price. A primary object of the advertisement is to attract buyers who will compete against one another so as to yield the highest price; its contents are important to the process. Thus, errors that would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the sale of the real property do not show a chilling of the sale so that a fair market value bid was not obtained.

(Citations and punctuation omitted.) 220 Ga. App. at 360 (2).

Here, as in Southeast Timberlands, Woodley does not challenge the trial court’s “determination that the property brought fair market value,” id., but argues that the improper advertisement “chilled bidding by making it appear a higher bid would be needed to purchase the property.” Id. We rejected that argument in Southeast Timberlands with respect to an overstatement of the debt owed, noting that the debtor might as easily argue the opposite, and “[i]n such circumstances, the factfinder is charged with determining whether language in the foreclosure advertisement chilled bidding. [Cit.]” Id. at 361 (2). We went on to state:

Timberlands does not challenge the notice of sale it received, or the bank’s compliance with the procedures for judicial sales; it only asserts that improper information contained in the required advertisement made the sale defective. Considering the main purpose of the advertisement, as stated earlier, we recognize that many extraneous factors may influence bidders. This Court cannot create an ironclad form of advertisement to the public, not subject to challenge, any better than the legislature can. Consequently, we have consistently held that once the trial court determines the advertisement matches the legal requirements of OCGA § 9-13-140, any additions to or omissions from the notice are simply factors in the key determination whether the property was sold fairly for an adequate price. This process ensures the power of sale was exercised fairly.

(Citations and punctuation omitted.) Id. Here, the trial court specifically found that the advertisement “conformed to Georgia law” and that the property brought its fair market value. Even though it did not expressly address the “chilling” issue, such a finding was implicit in its conclusion that the property brought its fair market value. In Southeast Timberlands, the trial court made no findings of fact at all and merely confirmed the sale, but we still concluded:

Although the summary nature of the court’s order impedes our review, the responsibility for assuring a detailed order rests with Timberlands, which failed to request it either before or after the ruling was made. ... In the absence of any indication to the contrary, we conclude the trial court determined these alleged defects did not chill the bidding or result in an inadequate price for the foreclosed property.

(Citations omitted.) Id. at 361-362 (3).

While it would have been the better practice for the facts concerning [other deeds] to have been shown in the advertisement, there is no legal requirement that this be done and when it is not done, it becomes a question of fact whether it affected a fair exercise of the power and caused chilling of the sales price. [Cit.]

Scroggins v. Harper, supra, 138 Ga. App. at 785 (2). Because Woodley did not contest the issue of fair market value, the trial court’s determination of this question is binding. See Atreus Communities of America v. KeyBank Nat. Assn., 307 Ga. App. 716, 717 (706 SE2d 107) (2011) (judge in confirmation hearing sits as trier of fact and judges witness credibility and weight of evidence; this court will not disturb confirmation if any evidence supports decision).

Decided July 7, 2011.

McGahren, Gaskill & York, Don G. Gaskill, Jr., for appellants.

Busch, Slipakoff & Schuh, Mathew A. Schuh, Michael P. Bain, for appellee.

For these reasons, the trial court did not err in confirming the foreclosure sale, and we therefore affirm.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       In fact, Woodley demonstrates this by citing Norwood Realty Co. v. First Fed. &c. Assn., 99 Ga. App. 692, 695 (3) (109 SE2d 844) (1959), in which a debtor contended an advertisement was defective because it excluded lots in a subdivision that had been sold between the execution of the deed to secure debt and the foreclosure. We concluded, however, that the advertisement remained sufficient. Id.